2218735 (Refugee)

2218735 (Refugee) [2023] AATA 4616 (27 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2218735
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Karen Vernon
DATE:27 November 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 November 2023 at 4:42pm
CATCHWORDS
REFUGEE – protection visa – Samoa – Federal Circuit and Family Court remittal – particular social group – persons in conflict with village matai – persons charged with serious criminal offences – right to a fair trial – credibility concerns – delay in seeking protection – false information in visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5L, 36, 57, 65, 104, 423A, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MIEA (1994) 35 ALD 1
Subramaniam v MIMA (1998) VG310 of 1997
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
Background and migration history
According to the protection visa application, the applicant was born in Samoa in [year] and is a citizen of Samoa. He states that he does not have the right to enter or reside in any other country than Samoa.
[In] October 2019, the applicant arrived in Australia on a subclass GD 403 Temporary Work (Pacific Labour Scheme) visa, travelling on a valid Samoan passport.
[In] July 2020 the applicant was convicted in the [specified] Local Court of New South Wales of the following charges:
a.being armed with intent to commit an indictable offence;
b.assault occasioning actual bodily harm.
He was sentenced to an 18-month community correction order and 200 hours community service. An apprehended violence order was also made against the applicant for 2 years expiring in July 2022. The facts of the criminal conviction are admitted by the applicant.
The applicant’s temporary work visa was cancelled by the Minister under s 116(1)(g) of the Act on 18 September 2020 based on his criminal conviction [in] July 2020.
The applicant was taken into immigration detention on 2 October 2020, and has been detained at [the] Immigration Detention Centre since 2022.
Protection visa and delegate’s decision
The applicant applied for a protection visa and a bridging visa on 8 December 2021.
On 15 December 2021 the applicant participated in a telephone departmental interview where he gave evidence to the effect that:
a.he had only intended to remain temporarily in Australia;
b.he was a suspect on an attempted murder charge in Samoa, however the had been assaulted by a chief and was admitted to hospital as a result of that assault and the applicant was in fact the victim;
c.the corrupt police accused the applicant of being the offender because the chiefs are very powerful in Samoa and the police are scared of them.
On 16 December 2021 the applicant was refused a bridging visa.
The delegate subsequently issued a letter to the applicant under s 57 of the Act on 21 February 2022 inviting the applicant to comment on answers he had provided at the interview on 15 December 2021, that were adverse to his claims, namely that he:
a.had come to Australia for work, not because he feared harm in Samoa, with the implication being that his protection visa application might have been an afterthought;
b.intended to return to Samoa after being detained, suggesting that the applicant did not fear returning to Samoa.
The applicant did not respond to the delegate.
On 1 March 2022, the delegate refused the applicant’s protection visa application on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2) of the Act. In summary, the delegate:
a.accepted the applicant may have been attacked with a hammer by a local village chief;
b.accepted the applicant is facing attempted murder charges in Samoa;
c.did not accept that the applicant has a real and genuine fear of further harm as a result of his claim that he had previously been attacked by a local village chief;
d.was satisfied that there was no evidence that the applicant would face unfair court proceedings, or be found guilty of committing a crime or face punishment without a fair trial on return to Samoa;
e.was satisfied that the applicant did not face a real chance of serious harm on return to Samoa for the reasons claimed by the applicant, or for his known circumstances;
f.was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Samoa, there was a real risk the applicant will suffer significant harm.
First Tribunal Review Hearing
On 8 March 2022, the applicant applied for a review in the Tribunal, providing a copy of the delegate’s decision to the Tribunal.
The applicant attended a hearing before the Tribunal held by video conference on 3 and 25 May 2022 and gave evidence and presented arguments. He was not represented at the hearing and did not call any witnesses. An interpreter was occasionally used however the applicant voluntarily gave much of his evidence in English.
On 26 May 2022 the Tribunal (differently constituted) affirmed the delegate’s decision of 1 March 2022 not to grant the applicant a protection visa, finding that:
a.the applicant is a Samoan national who was involved in a brawl in his next-door neighbour’s billiards hall in late 2016 or early 2017;
b.the applicant was struck on the right side of his head with a hammer seven times by a local village chief (known as a matai in Samoan language);
c.the assault rendered the applicant unconscious and, in the longer term, partially brain-damaged, the injury causing him temporary paralysis and/ or numbness down his left side for a number of weeks, which generally had lasting negative effects on the applicant’s concentration and capacity to pay attention to, and recollect, factual details;
d.the village chief who struck the applicant was charged with striking the applicant but the outcome of the criminal charges is unknown;
e.one evening in 2017 after the applicant’s discharge from hospital, a different village chief verbally scolded and assaulted the applicant by grabbing his collar;
f.the village chiefs did not assault the applicant on any further occasions, even though the chiefs and the applicant continued to live as neighbours until the applicant left for Australia;
g.after he was discharged from hospital, during a separate incident, the applicant assaulted the village chief who struck him in the head by throwing a bucket of hot water on that village chief;
h.the applicant did not previously disclosed the hot water incident in the course of his protection visa application, and omitted to mention it for the express purpose of being allowed to stay in Australia;
i.the Samoan police had brought attempted murder charges against the applicant over the hot water incident in good faith;
j.the Samoan judicial processes are fair in all respects;
k.the applicant faces a real chance of being prosecuted in Samoa, but prosecution does not necessarily mean persecution as there needs to be an intention to harm the applicant for one or more of the reasons in s.5J(1)(a) of the Act that is above and beyond mere prosecution for a crime;
l.the applicant has a genuine criminal case to answer and will be given an opportunity to defend himself in a fair and just process in the Samoan courts, and the applicant will not suffer prejudice in court due to his ongoing disability from his head injury, or his criminal record in Australia, or any other factor;
m.the social status of the chief who struck the applicant in the head has not unfairly influenced the police, nor will it unfairly influence the outcome of a trial of the applicant;
n.the Samoan police have not acted corruptly in the charges laid against the applicant, nor have they taken, or will they take, sides prejudicially against him;
o.the applicant does not face a real chance of being persecuted in Samoa for any reason cited in s 5J(1)(a) of the Act, and his fear of being persecuted is not well founded;
p.there are not substantial grounds for believing that the applicant will suffer significant harm in relation to his medical condition and needs, and disability factors, as a necessary and foreseeable consequence being removed from Australia to Samoa.
Application to Federal Circuit and Family Court of Australia
The applicant applied for review of the Tribunal’s first decision to the Federal Circuit and Family Court of Australia (FCFCA) [in] June 2022.
On 16 December 2022, by consent, the FCFCA set aside the Tribunal’s decision of 26 May 2022 and remitted the matter to the Tribunal on the grounds that the Tribunal had erred in failing to consider the applicant’s claim that there was a risk that the village matai chief or his family would inflict harm on the applicant should he returned to Samoa.
Second Tribunal Review Hearing
Following the FCFCA remittal and noting that the applicant had already had a full hearing in the Tribunal (first Tribunal review), I nonetheless determined that the applicant should be given a further opportunity to appear before the Tribunal to give evidence and present arguments on all claims arising in his application for review of the delegate’s decision.
The applicant initially appeared before the Tribunal on 5 April 2023 to give evidence and present arguments. He was not represented. An interpreter in the Samoan and English languages was available by videolink to assist the applicant, however the interpreter was only used by the applicant when required. I am satisfied, based on his ability to understand and answer questions in English when he wished to do so and request the interpreter’s assistance otherwise, that he was not disadvantaged when the services of the interpreter were not being utilised.
The applicant advised that Law Access WA had approved a grant of assistance for him to receive legal representation from the same lawyer who had represented him in the FCFCA, and the applicant had been counting on that lawyer being able to represent him. However that lawyer had advised they were unable to attend the Tribunal hearing listed for 5 April 2023. That lawyer had offered to speak with the applicant by telephone prior to 5 April for verbal advice, but the applicant had not been able to speak to the lawyer prior to 5 April, despite leaving several messages. The applicant produced emails confirming his attempted communications with the lawyer, which included the lawyer’s email address at a law firm. The applicant indicated that he still wished to be represented by his lawyer and requested an adjournment of the hearing for that reason.
I granted the applicant’s request for an adjournment. I informed the applicant that the onus remained on him to request his lawyer to lodge a notice of appointment with the Tribunal, and if his preferred lawyer was unable to assist, the onus was on the applicant to request Law Access to secure the services of another lawyer to represent him before the next hearing.
The hearing resumed on the rescheduled date of 1 May 2023. At the outset of the hearing, the applicant advised the Tribunal that his preferred lawyer remained unavailable to assist with the hearing, and that he had not requested Law Access to provide assistance of another lawyer because he thought it would take too long. The applicant advised the Tribunal that he wished to proceed with the hearing as scheduled without legal representation. I was satisfied that the applicant understood that continuing with the hearing without legal representation was his voluntary choice.
The hearing then proceeded with the assistance of an interpreter in the Samoan and English languages. The applicant only used the interpreter as and when he required. The applicant did not seek to call any witnesses in support of his claims for protection. At the conclusion of the hearing, I gave the applicant until 12 May to submit further information in support of his claims that he was struck on the head with a hammer multiple times by the local village chief.
The evidence available to the Tribunal comprises a copy of the Department’s file, the Tribunal’s files on the First Tribunal review, the current Tribunal review, the applicant’s evidence at the hearing on 1 May 2023, and the following documents were also submitted to the Tribunal after the hearing on 10 May 2023:
a.email from the applicant dated 10 May 2023;
b.undated signed typed statement of [Mr A] in Samoan language without certified translation;
c.undated unsigned handwritten statement of [Mr A], in English, detailing the attack he witnessed on the applicant in the billiards hall. No certification that this is an authorised translation of the typed statement above.
The Tribunal also identified the following two further relevant news articles in [Newspaper 1] regarding the attempted murder charge against the applicant, which were not before the Tribunal as previously constituted:
a.“[Article Title 1]” dated [in] 2017;
b.“[Article Title 2]” dated [in] 2017.
ISSUES FOR DETERMINATION
The issues in this review are:
a.whether the applicant is a refugee, pursuant to s 36(2)(a) of the Act; or
b.if not, whether 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 he will suffer significant harm, pursuant to s 36(2)(aa) of the Act; or
c.whether the applicant is a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act, and who holds a protection visa of the same class as applied for by the applicant, pursuant to s36(2)(b) or (c) of the Act.
For the following reasons, I have concluded that the decision under review should be affirmed.
CRITERIA FOR PROTECTION VISA AND RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Regulations). An applicant for the visa must meet one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c) of the Act. That is, the applicant 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: s36(2)(a)
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, 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 themselves of the protection of that country: s5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.
Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA of the Act, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.
“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. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379 at 397.
A fear of persecution is not well-founded if it is merely assumed, or if it is mere speculation: MIEA v Guo (1997) 191 CLR 559 at 572.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act, that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b) and (c) of the Act.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L of the Act. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
Complementary protection criterion: s36(2)(aa)
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 he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) 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), which are extracted in the attachment to this decision.
In MIAC v SZQRB [2013] FCAFC 33 at [246], [297], the Full Federal Court held that 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.
‘Significant harm’ is exhaustively defined in s 36(2A) of the Act. A non-citizen will suffer significant harm if:
a.the person will be arbitrarily deprived of their life; or
b.the death penalty will be carried out on the person; or
c.the person will be subjected to torture; or
d.the person will be subjected to cruel or inhuman treatment or punishment; or
e.the person will be subjected 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.

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: s 36(2B) of the Act.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’.
Credibility
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 35 ALD 1, 13.
In determining whether an applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists, or it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596.
It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596.
Applicants are expected to present their case in full before the primary decision-maker, and not to wait until after the primary decision has been made. There is an ongoing obligation under s 104 of the Act for an applicant to change any incorrect information at the first reasonable opportunity.
Section 423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claims or evidence, where the applicant raises a claim or evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence. Applicants are, therefore, required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.
Membership of same family unit criterion: s36(2)(b) and (c)
Sections 36(2)(b) and (c) of the Act provide an alternative criterion for a protection visa where an applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa), and who holds a protection visa of the same class as that applied for by the applicant.
Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by r 1.12 of the Regulations.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS FOR PROTECTION
According to his protection visa application, the applicant fears persecution if returned to Samoa for the following reasons:
a.he fears harm from the village chief or his family as revenge for the applicant pressing criminal charges against the village chief who struck him in the head 7 times with a hammer in 2016 or 2017 leaving him seriously injured;
b.Samoa is trying to extradite him to stand trial for attempted murder of the village chief as part of a revenge plan by the village chiefs;
c.the village chiefs are the law in Samoa so the applicant won’t get a fair trial;
d.he has been banned from his home by village chiefs so he cannot go home.
At the outset of the hearing, the applicant confirmed that he was not making any new or additional claims for protection different to those contained in his protection visa application or as considered by the Tribunal at the first review hearing in May 2022.
EVIDENCE
Applicant’s Evidence
The applicant was born in Upolu, Samoa in [year]. His father is deceased. His mother is still alive living in Samoa. He has [number] siblings, all of whom live in Samoa. The applicant is the eldest, with the [younger] siblings under 18 years. When he was [age] years old, the applicant’s family moved to a large village called [Village 1], where his family still live in 2 adjacent houses built on the same block of land.
The applicant attended school until the age of [age]. He worked as an assistant in a family-owned [business], and also in [another family] business, however he wasn’t continuously employed from the time when he left school until he came to Australia in 2019. He is not married and does not have any children.
According to the applicant, from a young age he was aware of the local village chiefs, called matai in Samoan language. The main chief in the applicant’s village is [Mr B]. He is known as the old chief. [Mr B] owned and operated the local billiards hall. [Mr C] is a younger chief who married [Mr B]’s daughter. [Mr B] and [Mr C]’s family is very big, and the applicant referred to them as his neighbours. The old chief lived across the road from the applicant from the time he was [age] years old, and his extended family lived down the road. There were a lot of other chiefs in the village who came from [Mr B]’s extended family. There were lots of different levels of chiefs and then there were the men who do whatever the chiefs order them to do. The chiefs control the village, not the police, and they also have influence outside the village.
Applicant attacked by village chief
When asked if he had experienced any harm in Samoa, the applicant recounted the events of one occasion in late 2016 or early 2017, when the applicant went to [Mr B]’s billiards hall after work. He had visited the establishment on previous occasions. The applicant has no independent recollection now of what happened that night other than being hit. He remembers waking up in hospital the following day unable to stand up because he was paralysed on one side. His mother visited him in the hospital and said the boys who dropped the applicant off to the hospital had been to see her and told her what had happened. They told her that the applicant had been in an argument with [Mr B] when [Mr C] attacked him with a hammer, striking him to the head 7 times and those involved in the incident were drunk at the time. The applicant knew the family of the boys who took him to the hospital as they were locals.
The applicant doesn’t remember how long he spent in hospital after the attack, but it was at least a few weeks. When he went home from the hospital, he was not completely well but he was walking with a stick. He was confined to the house to finish recovering from his physical injuries, which he thought took about 5 to 6 months. He doesn’t believe he has recovered from the mental injuries suffered, as he still has difficulties with his memory, headaches and sleeping.
The applicant claimed that his mother reported the incident to the village police, who then came to the hospital and took a statement from the applicant. The applicant told the police he wanted charges laid against [Mr C] for the assault. The police took photos of the applicant’s injuries, and also obtained statements from witnesses. The applicant believes the police gave the applicant’s mother a copy of his statement. The applicant claims that nothing much happened after the initial actions taken by the police. His mother tried to follow up with the police on his behalf, but she could not get any straight answers, and she told the applicant the police were giving her the run around. Despite the applicant still being in contact with his mother, no evidence was produced from the applicant’s mother or local police to verify this account.
The applicant claimed that he did not move away from his village or try to relocate following the attack because his only family and supporters lived in the village, and with his father deceased, the applicant needed to resume working to help financially support his family. This meant the applicant continued living next door to [Mr B] and [Mr C].
When asked how he interacted with the village chiefs [Mr B] and [Mr C] after he came home from the hospital, the applicant said that when he eventually returned to work, he tried to go about his business and do his own thing. However, the billiards hall is located right next to the road leading to the applicant’s house, so he always had to go past it to get to his house because that was the only road in and out. He was still weak and walked with a stick. There were always village chiefs hanging out at the billiards hall and when they were drunk, they would call him names when they saw the applicant walking past.
The applicant claimed that he did not receive any information from the police about a court hearing for his attacker after the initial visit to him in the hospital. A couple of months after the assault, the applicant heard that the village chief and his family were partying like nothing had ever happened, as though [Mr C] had not even been charged by the police. The applicant said he believed that his mother sought legal advice from a pro bono lawyer about the police investigation because his family didn’t know what to do. Over time the applicant believed that the police investigation and the charge against [Mr C] was “gone”, meaning it had disappeared.
When asked if there were any further incidents between the applicant and the village chiefs, the applicant claimed that on one occasion, [Mr B] tried to grab the applicant by the collar of his shirt as he went past the billiards hall, and they exchanged some “words”. The applicant did not report this incident to the police because he claimed the police do not have any power in Samoa, which the applicant believes is confirmed by their lack of progress in pursuing the applicant’s charge against [Mr C].
Around the time of this incident, the applicant said the local police had been evasive with his mother when she had tried to obtain follow up progress with the charge against [Mr C]. His mother was worried the village chiefs were acting like nothing had ever happened and this might stir up some anger in the applicant and result in another assault.
When asked if he had any documents or other evidence to support his claim that he was hit on the head with a hammer by the village chief in 2016 or 2017, the applicant replied that he had tried to access Samoan hospital records since he has been in detention in Australia, including writing to the relevant government minister and even his mother had tried directly with the hospital without success. The applicant says that he hasn’t been able to get an answer about whether the records of his hospital visit exist or whether he can access them. The applicant said he didn’t see a local village doctor after he was discharged from the hospital because he had to visit the hospital weekly as an out-patient.
According to the applicant’s medical records from immigration detention:
a.the initial health induction assessment recorded that the applicant did not have any history of illness or injury, and the applicant denied having any mental health issues;
b.entries in 2021 referred to consent forms to Samoa for release of medical records for the applicant with the annotation “information not available, does the detainee have any other contacts or dates to assist?”
When asked if he had copies of the witness statements the police had obtained about the criminal charge against [Mr C], the applicant initially replied that he didn’t have any but he could ask his mother. The applicant also said the pro bono lawyer his mother consulted might have copies of the witness statements and he could ask her to ask the lawyer. When asked why the applicant had not asked his mother about this before this Tribunal hearing, the applicant claimed that he thought he had asked his mother previously, but he couldn’t now recall her answer, and sometimes he forgot these things. The applicant said he would ask her again. At the conclusion of the hearing, I gave the applicant time to make enquiries and produce any documents he wished to rely upon.
The applicant subsequently filed in the Tribunal a statement of [Mr A], who stated he was playing pool at the billiards hall owned by [Mr B], when he witnessed an argument between the applicant and [Mr B] over the applicant’s noisy behaviour at a pool table. [Mr A] claims he saw [Mr C] hit the applicant on the right side of his head with a hammer and after the applicant fell to the floor unconscious, [Mr C] continued to hit the applicant to the head with the hammer 6 to 7 times. [Mr A] and another got a car and drove the applicant to the hospital before going to tell the applicant’s mother what had happened. The handwritten unsigned statement in English purporting to be from [Mr A] supported the applicant’s account during the hearing, albeit with more detail of the assault than the applicant provided from his own recollection.
Although there is no certified translated copy of the typed and signed statement purporting to be from [Mr A], I accepted both statements as containing evidence of [Mr A] about the events of the night the applicant was assaulted by [Mr C]. There are of some corroborative assistance, but ultimately not determinative in relation to the issues on which this review turns.
The hot water incident
The applicant claimed that in late 2017 or early 2018, his anger towards the village chiefs had been building up because they were always calling him names when he walked past the billiards hall. One night the applicant said he couldn’t take it anymore, so he got a small bucket of hot water from his house and went to the billiards hall where he threw hot water on [Mr C]’s back and the left side of his body (hot water incident). [Mr B] and all the other village chiefs at the billiards hall immediately responded by physically attacking the applicant and trying to punch him. He fought back and was injured during the fight. The fight came to an end when the applicant ran away. He went and stayed in some abandoned houses on the other side of the village.
Applicant charged with attempted murder over hot water incident
About 2 days later, the local police arrested the applicant and charged him with the attempted murder of [Mr C] over the hot water incident. The applicant claimed he didn’t have any intention to do [Mr C] any major harm because that would have affected his whole family.
The applicant claimed he was taken to Samoa’s only prison to await his court hearing as there is only one main prison in the country for everyone – those convicted and those awaiting trial. Approximately 4 weeks after he was charged, the applicant appeared in the Samoan Supreme Court in the city. The applicant believes he spent several months in prison but cannot be sure. He believes that after attending 2 court hearings he was released on bail, on condition that he report weekly at his local police station in the village. The applicant said he didn’t know how he got released on bail, but he recalled being represented by the same lawyer his mother spoke to previously. When asked what happened to the attempted murder charge after he was released on bail, the applicant stated it was still ongoing when he left Samoa.
The Tribunal has identified two news articles dated [in] 2017 which report that a [age] year old man named [the applicant] from [Village 1] appeared in the Supreme Court of Samoa accused of attempted murder for pouring hot water on a [age] year old man, and the matter was adjourned for two weeks to permit the prosecutor to finalise the charges and for the accused to seek legal assistance. It was reported that police were still investigating the matter.[1]
[1] “[Article Title 1]”, [Newspaper 1], [dated in] 2017; “[Article Title 2]”, [Newspaper 1], [dated in] 2017.
These articles corroborate the applicant’s account of his prosecution for attempted murder, however, importantly they provide an independent timeline for the events, namely that the applicant first appeared in court in mid-2017, suggesting the hot water incident most likely occurred in the first half of 2017, not late 2017 or early 2018 as claimed by the applicant. This puts the hot water incident much closer in time to the claimed assault on the applicant by [Mr C] in late 2016 or early 2017.
I accept that the news articles:
a.relate to the applicant and that he is the person identified as “[the applicant]” as he admitted in his evidence that he was accused of attempted murder for pouring hot water on another man and appeared in the Samoan Supreme Court;
b.are significantly more accurate than the applicant’s evidence about the dates when the hot water incident and the court appearances occurred.
During the first Tribunal review hearing, that Tribunal noted that the applicant initially claimed that he did not know how or why, or even if, the “attempted murder” charges had been laid against him as referred to in the [Newspaper 1] news articles. He said then that the “attempted murder’ charges in Samoa could only have been contrived with either knowing or naïve help from the police to avenge [Mr C] being charged over the incident with the hammer. The applicant then said that he did not know if he would receive a fair trial in Samoa because he had done nothing at all in Samoa to attract any charges, having only ever been the victim of violence rather than the perpetrator. He claimed that he had come to Australia believing that the village matai had probably escaped conviction and that he was unaware of any ongoing matters against the village matai or himself.
Following a resumption of the first Tribunal hearing, that Tribunal member used s 424AA of the Act to put to the applicant a news article in the [Newspaper 1] dated [in] 2020 referring to the hot water incident. At that time, the applicant’s response was that he “left out” referring to the hot water incident because he wanted to be able to stay here in Australia.

During the hearing before me, the applicant openly admitted the hot water incident and the attempted murder charge laid against him by the Samoan authorities in his evidence. He gave detailed evidence of the hot water incident, his arrest for attempted murder, detention, court appearances in the Supreme Court and release on bail. He also acknowledged that he left Samoa to travel to Australia knowing the attempted murder charge was still outstanding, and that he did not inform the local police that he was going to Australia for work despite still being on bail.
When the applicant acknowledged signing his protection visa application, I asked the applicant why he didn’t include details of the hot water incident or the attempted murder charge in his protection visa application. The applicant responded saying that sometimes he forgets things, or maybe he just thought it wasn’t a good idea to include it. He then claimed that from the time he lodged his protection visa application, it was handled by another immigration detention centre detainee named [Mr D]. The applicant claimed that maybe [Mr D] didn’t include the information in the protection visa application or maybe the applicant forgot to provide the information to [Mr D]. I did not find the applicant’s evidence persuasive as to why the information was omitted from his protection visa application. I find that the applicant omitted this information because he thought it was not a good idea to include it.
Applicant’s involvement in Pacific Labour Scheme
Approximately 4 weeks after he was released on bail, the applicant claimed he received a government letter saying that he had been given an appointment for the Australian Pacific Labour Scheme (APLS). It was at this stage of the hearing that the applicant claimed that he had originally applied to go to Australia to work under the APLS before the assault in late 2016 or early 2017 at the billiards hall. He claims he heard about the APLS from friends and news reports, so he put in an application because he wanted to try something new, and because he wanted to move out of the family home as it is very small. He thought he could earn some money working in Australia, then he planned to return to Samoa to buy a house with the money he made.
The applicant claimed that after he received the letter about the APLS, he went to the appointment with officials and was told he needed to get a Samoan passport, a police clearance certificate and a medical certificate quickly because he had already been allocated to a work team in Australia. The applicant claimed he immediately applied for his passport, police clearance, and medical certificate. He says he did not have any difficulty applying for his police clearance certificate or his passport, even though he had never had a passport before. His visa to Australia was then granted on 30 September 2019.
The applicant claimed he was still reporting to the local police station under his bail conditions at the time he went to the appointment. When asked if he had informed the local police station that he was planning on leaving Samoa to work in Australia, the applicant replied in the negative. He claimed that he didn’t think about what might happen if he left Samoa to travel to Australia whilst still on bail because he had received a passport and police clearance certificate. When asked if he thought that leaving Samoa whilst on bail could create more trouble for him in Samoa, the applicant said “Yes, but I wanted to move on with my life.”
COUNTRY INFORMATION
I have had regard to relevant country information, and in particular, the following information about the role of the village matai, and the political and judicial systems in Samoa.
Role of the village matai
Samoan society is based on a collectivist system of governance known as ‘fa’a Matai’, whereby society is organised by extended families with each family having its own ‘Matai’ (‘chief’ or ‘leader’) titles that are connected to certain districts, villages and plots of family land. Matai are responsible for administrative duties and maintaining traditions and customs of the village. They are also seen as spiritual caretakers of all those who fall under their authority. The status of Matai is highly respected among the community. A Samoan becomes the Matai of a village through the complex and sophisticated hierarchical Matai system, which includes an election by consensus. While the nuances of the Matai system are difficult to articulate, the title of Matai is generally passed down from parent to child or given based on the view that the recipient will best serve the family or village. Matai are expected to ensure the family or village is self-sufficient and well-nourished, as well as maintaining social order among all members.[2]
The political, security and judicial system
[2] SBS, Samoan Culture – Core Concepts – Cultural Atlas, accessed 7 November 2023
Samoa is a model of constitutional parliamentary democracy that incorporates traditional practices into its governmental system. Although the unicameral parliament is elected by universal suffrage, only matai (family chiefs) may be members.[3]
[3] Samoa 2022 Human Rights Report, United States Department of State, Bureau of Democracy, Human Rights and Labor, 415610.
The national police, under the Ministry of Police, Prisons, and Correction Services, maintain internal security. Civilian authorities maintained effective control over the security forces. There were no credible reports that members of the security forces committed abuses. Although there are credible reports of human rights issues, the government took steps to prosecute officials who committed human rights abuses and corruption. There were no reports of impunity for human rights abuses. Impunity for corruption was rare. There were no reports the government or its agents committed arbitrary or unlawful killings. The constitution prohibits such practices, and there were no reports government officials normally employed them. Impunity was not a significant problem in the security forces. There were no reports regarding prison or detention centre conditions that raised human rights concerns.[4]
[4] Samoa 2022 Human Rights Report, US Department of State, Bureau of Democracy, Human Rights and Labor, 415610.
The constitution prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements.[5]
[5] Samoa 2022 Human Rights Report, US Department of State, Bureau of Democracy, Human Rights and Labor, 415610.
Samoa has an independent judiciary. The authorities generally observe due process in civil and criminal matters, with safeguards against arbitrary arrest and detention, and the courts provide defendants with the conditions necessary for a fair trial. Courts issue arrest warrants based on compelling evidence. The law provides for the right to a prompt judicial determination of the legality of detention, and authorities generally respected this right. Officials informed detainees within 24 hours of the charges against them or else released them. There was a functioning bail system. The government allowed detainees prompt access to a lawyer of their choice, provided indigent detainees with a lawyer upon request, and did not hold suspects incommunicado or under house arrest.[6]
[6] Samoa 2022 Human Rights Report, US Department of State, Bureau of Democracy, Human Rights and Labor, 415610.
The constitution provides for the right to a fair public trial, and an independent judiciary generally enforced this right. A trial judge examines evidence and determines if there are grounds to proceed. Under the law, defendants are presumed innocent and may not be compelled to testify or confess guilt. Trials are public except for trials of juveniles, which only immediate family members may attend. Defendants have the right to be present at their trial; have timely consultation with an attorney; receive prompt and detailed information of the charges, including interpretation services as necessary from the moment charged through all appeals; and to adequate time and facilities to prepare a defence. Defendants may confront witnesses, present witnesses and evidence on their own behalf, access government-held evidence, and appeal a verdict. The law extends these rights to all defendants. [7]
[7] Samoa 2022 Human Rights Report, US Department of State, Bureau of Democracy, Human Rights and Labor, 415610.
However, village councils settle many disputes, and their adherence to due process standards varies; they have the authority to impose penalties including fines and banishment. December 2020 legal reforms appeared to eliminate individuals’ ability to appeal village council decisions to the Supreme Court, raising doubts about how conflicts between customary communal authority and the constitutional rights of individuals would be resolved. While there are few constraints on freedom of movement, village councils still occasionally banish individuals from their communities as a penalty for serious violations of their bylaws.[8]
[8] Freedom in the World 2022 – Samoa, Freedom House, 28 September 2022, 20220928114507
ANALYSIS OF EVIDENCE AND FINDINGS
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence, I must proceed to assess the claim on the basis that it might possibly be true.
Identity and receiving country
The applicant provided a copy of a valid Samoan passport issued [in] 2019 with an expiry in 2029. I am satisfied as to the applicant’s identity and the validity of his identity documents. I find that the applicant has Samoan nationality, and that the receiving country for the applicant on this review is Samoa.
Protection in another country
I accept the applicant’s evidence that he does not have a right to enter and reside in a country other than Samoa. I find that s 36(3) of the Act does not apply to the applicant.
Delay in seeking protection
The application for protection was made over 2 years after the applicant arrived in Australia.
In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a 3-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.
I asked the applicant why he had waited for over 2 years after his arrival in Australia before applying for protection. The applicant’s explanation for the delay was that following his detention in Australia in 2020, at some stage he learned that the Samoan authorities were seeking his extradition to Samoa to face a charge of attempted murder, and he became fearful that he would be persecuted if he returned to Samoa. Information about the extradition over the attempted murder charge appeared in news articles published in [Newspaper 1] in Samoa in 2020.[9] These articles were obtained during a search conducted by the previous Tribunal member in the first review hearing.
[9] “[Article Title 3]” [Newspaper 1], [dated in] 2020; “[Article Title 4]” [Newspaper 1], [dated in] 2020; “[Article Title 5]”, [Newspaper 1], [dated in] 2020; “[Article Title 6]”, [Newspaper 1], [dated in] 2020; “[Article Title 7]” [Newspaper 1], [dated in] 2020.

100. The applicant’s explanation is inconsistent with his evidence that he intended to return to Samoa after working in Australia to buy a house for himself and his brothers with the money he earned working in Australia, and with his evidence that knew he the attempted murder charge against him was outstanding when he left Samoa. I find it is implausible that receiving news between 2020 and 2021 of Samoa’s plan to extradite him to answer the outstanding criminal charge would have caused the applicant to suddenly fear persecution by Samoan authorities if he returned to Samoa, when by his own evidence he planned to return to Samoa after his work visa expired, where he would have had to face the outstanding charge of attempted murder anyway.
101. The applicant’s evidence about the delay in making an application for protection is inconsistent with his claimed fear that he would be persecuted if returned to Samoa either by the village chiefs seeking to punish him, or by having to face prosecution on the charge of attempted murder because the applicant already knew when he left Samoa that:
a.he planned to return to Samoa at the end of his work visa to buy a house for him and his brothers;
b.he had not experienced any further harm from the chiefs after he left hospital in late 2016 or 2017, except for some occasional verbal harassment;
c.he had continued to live on the same street as [Mr B], [Mr C] and their families between 2016 and 2019, despite being charged with attempted murder of [Mr C] over the hot water incident, and despite claiming to have been banned from the village by [Mr B] after he was charged with attempted murder of [Mr C];
d.he was facing prosecution for attempted murder by the Samoan authorities.

102. I find that the applicant has not provided any reasonable explanation for the delay. In the absence of a reasonable explanation, I find that the delay in applying for protection in Australia for more than 2 years after arrival casts serious doubt on the genuineness of the applicant’s fear of persecution if he is returned to Samoa for any of claimed reasons.
Credibility Issues - False information on visa application
103. Apart from the credibility issues already outlined in these reasons, there are other credibility issues. The applicant provided the following responses on his protection visa application:
Has any applicant included in this application been charged with any offence that is currently awaiting legal action? No

Has any applicant included in this application been convicted of an offence in any country (including any conviction which is now removed from official records)? No

Has any applicant ever been the subject of a domestic violence or family violence order, or any other order, of a tribunal or court or other similar authority, for the personal protection of another person? No

Has any applicant included in this application been the subject of an arrest warrant or Interpol notice? No

Are any applicants aware of being the subject of a criminal investigation or have criminal charges pending against them? No

104. The applicant declared in his protection visa application that to the best of his knowledge he did not have any matters which were either unresolved or in which he had been, or was involved, that would bring into question whether he would pass the character test as defined at s 501 of the Act, except as declared in this application form. The applicant further declared that he had provided complete and correct information in every detail on the application form, and on any attachments to it.
105. During the hearing, I raised concerns with the applicant that each of his responses (as outlined above) to these questions above on his protection visa application appeared to be false, and could be the reason for an adverse finding on credibility being made against him. I read out each of his answers to these questions, then sought the applicant’s response as to why he had denied:
a.that he had been charged with an offence that is currently awaiting legal action, when he knew that there was an outstanding criminal charge against him in Samoa;
b.that he had been convicted of an offence in any country, when he knew that he had been convicted of criminal offences in Australia;
c.that he had been the subject of a court order for the personal protection of another person, when he knew that an apprehended violence order had been made against him;
d.that he had been the subject of an arrest warrant, when he knew that he had been arrested in Samoa;
e.that he was aware of being the subject of a criminal investigation or had criminal charges pending against them, when he knew that he was the subject of an ongoing investigation in Samoa.

106. The applicant expressed “shock” that he had answered all these questions on his application in the negative and accepted that his answers were incorrect. He claimed that he did not know why he had provided the wrong answers to all these questions. He later offered an apology in his email to the Tribunal of 10 May 2023 for providing incorrect answers to these questions, again restating that he had no explanation for why he had done so.
107. Based on the evidence before me, I find that the applicant’s answers to the above questions and declarations on his protection visa application were deliberately false, as the applicant knew when he applied for the visa on 8 December 2021 that he had been arrested and charged with attempted murder in Samoa before he came to Australia in 2019, that the charge was still part of a pending criminal investigation that had not been dealt with in Samoa, that he had been convicted of offences in Australia in 2020, and that he was the subject of an apprehended violence order for the personal protection of another person in Australia in 2020. The applicant’s answers reflect poorly on his credibility.
Findings of Fact
108. On the cumulative weight of the evidence before me, I find that:
a.in late 2016 or early 2017, the applicant was assaulted by [Mr C] (the young village chief) who struck the applicant to the head multiple times during an incident at [Mr B]’s billiards hall causing him injuries for which he was hospitalised;
b.the assault of the applicant by [Mr C] occurred during a random act of violence committed on a social occasion when [Mr C] and the applicant were intoxicated;
c.the applicant spent some time recovering from his injuries in hospital before he returned to live at home, where he stayed until he left for Australia in October 2019;
d.the applicant requested the Samoan police to charge [Mr C] over the assault;
e.the outcome of any charge(s) laid by the Samoan police against [Mr C] is unknown;
f.when the applicant was well enough to return to work, he experienced harassment in the form of verbal abuse from the village chiefs when he walked past the billiards hall on his way to and from work;
g.on one occasion in 2017 when the applicant was passing the billiards hall, [Mr B] verbally told him off and tried to grab him by the collar;
h.sometime in the first half of 2017, the applicant poured hot water on [Mr C] at the billiards hall (hot water incident);
i.sometime in the first half of 2017, the Samoan police charged the applicant with attempted murder over the hot water incident, and he was arrested and detained in a Samoan prison for some time;
j.in July 2017, the applicant appeared in the Samoan Supreme Court on the attempted murder charge until he was released on bail after several appearances in court;
k.the applicant’s bail conditions required him to report to the local police station regularly, but did not prevent him from leaving the country;
l.the applicant returned to live in the village after he was released on bail in mid-2017 and remained there until he departed Samoa for Australia in 2019;

m.the applicant was not assaulted again by any of the village chiefs, and there were no further incidents of violence between the applicant and the village chiefs, or their families, in the period between the hot water incident in early 2017 and when the applicant left for Australia in October 2019;
n.in 2019 the applicant was accepted into the APLS, and obtained his passport, police and medical clearance to travel to Australia without issue;
o.the applicant did not inform the local police station that he was leaving the country to travel to Australia for the APLS;
p.when the applicant left Samoa to come to Australia in 2019, he knew that the prosecution against him for attempted murder was still outstanding;
q.Samoan authorities have begun an extradition process to return the applicant to Samoa to be prosecuted on the charge of the attempted murder of [Mr C].

109. I do not consider the applicant’s evidence that he was banned from his village by the village chiefs after the applicant appeared in court on the attempted murder charge in mid-2017 to be persuasive at all. The applicant claimed that even though he lived next door to [Mr B] and [Mr C] for over 2 years, he avoided detection by travelling in and out of his home in the back of a van early in the morning or late at night. This was allegedly despite his bail conditions requiring him to regularly report to the local police station, a fact likely to have become known to the village chiefs. Although I accept the independent country information that village matai have the power to ban individuals from a village, the cumulative weight of the evidence does not support a finding that the applicant was ever banned from his village by the village chiefs.
110. According to his protection visa application, the applicant came to Australia in 2019 for work. The applicant reiterated this answer during the hearing before me, explaining that he wanted to earn money in Australia so he could return to Samoa to buy a house for himself and his brothers, and that he had always intended to return to Samoa at the end of his work visa.
111. Based on the cumulative weight of the evidence, I find that:
a.the applicant left Samoa to come to Australia in 2019 for the purpose of working to earn money and he planned to return to Samoa;
b.the applicant did not leave Samoa because he feared persecution by the village chiefs or his family over the hot water incident, or by the Samoan authorities over the attempted murder charge, or because the village matai had banned him from the village.

Is the applicant a refugee?
112. According to his protection visa application and his evidence before me, the applicant fears returning to Samoa because:
a.the Samoan government wants to bring him back to answer the arrest warrant so he would go to prison;
b.the village chiefs are trying to bring him back to Samoa to punish him for the hot water incident as there is a revenge culture in Samoa and the village chiefs hold all the power in Samoa, not the police;
c.even if he survived prison, he wouldn’t be able to go home because the village chiefs will still want to punish him for the hot water incident and they have already banned him from the village, and he wouldn’t be so lucky next time;
d.the village chiefs are a big family and even his own family are at risk;

113. The fundamental question is whether the applicant faces a real chance of being persecuted in Samoa now or in the reasonably foreseeable future, and if so, whether it is for a reason given in s 5J(1)(a) of the Act. Essentially, the fear expressed by the applicant is that he will be persecuted:
a.by the village chiefs or their families arising from the conflict between the applicant and the village chiefs over the hot water incident as part of a revenge plan by the village chiefs;
b.by the Samoan authorities prosecuting him for the attempted murder of [Mr C];

114. The applicant does not claim to be a refugee for reasons of race, religion, nationality or political opinion pursuant to s 5J(1)(a) of the Act, leaving only membership of a particular social group within s 5J(1)(a) of the Act remaining for consideration.
115. Section 5L of the Act provides that a person is to be a treated as a member of a particular social group (other than the person's family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. The characteristic must be innate or immutable or must be so fundamental to a member's identity or conscience that the member should not be forced to renounce it or must distinguish the group from society.
116. For the purposes of this decision, I have considered the applicant to be a member of two distinct particular social groups in Samoa, within the meaning of s 5L of the Act namely:
a.persons in conflict with village matai; and
b.persons charged with serious criminal offences.

117. I consider their status respectively as persons in conflict with village matai and persons charged with serious criminal offences are shared characteristics of members of each group that distinguishes each group from society generally. I am satisfied that the applicant is a member of these particular social groups.
Persecution by village chiefs and their families
118. When asked why he believed the village chiefs were trying to bring him back to Samoa to punish him for assaulting [Mr C], the applicant claimed that in Samoa going against the village chiefs is like going against a member of parliament. When I asked how he knew the village chiefs were trying to bring him back to Samoa to punish him, the applicant claimed he talks to his family every week and people in the chief’s extended family have been bullying the applicant’s little brother, trying to start fights with all his brothers, and asking a lot of questions about the applicant and when he is coming home. The applicant thinks it is not just the applicant who is affected, there is the threat to his brothers too.
119. Prior to this hearing, the applicant has not previously raised any claim that his family were being harassed in Samoa and were at risk from the village chiefs. The applicant did not call any evidence from his family members to that effect and has had ample time to have done so. Having regard to my findings about the applicant’s credibility as outlined earlier in these reasons, I reject the applicant’s evidence that his family are being harassed in Samoa by the village chiefs (or their families), or have made any threats to the applicant’s family, or to the applicant through them.
120. I consider it compelling evidence that the applicant was not assaulted by any of the village chiefs (or their families) for over 2 years between the time of the hot water incident in early 2017 to when the applicant left for Australia in October 2019, and that in that same period of time there were no further incidents of violence between the applicant and the village chiefs (or their families). In this same time period, the applicant had been charged by the Samoan authorities with attempted murder, and he returned home to the village and resumed living next door to the village chiefs (and their families), who would have had ample time to exact revenge on the applicant in the over 2 years he remained there before leaving for Australia, given I have rejected the applicant’s evidence that he was in hiding during that time so the village chiefs were unaware of his presence in the village.
121. On the cumulative weight of the evidence, I am not satisfied that the village chiefs (or their families) are trying to bring the applicant back to Samoa to punish him for the assault on [Mr C], as part of a revenge plan, or otherwise, or that the village chiefs (or their families) have engaged in behaviour amounting to systematic or discriminatory conduct against the applicant as a member of the particular social group “persons in conflict with village matai”, as required in s 5J(4)(c) of the Act.
Persecution by authorities – prosecution for attempted murder
122. When asked why he thought he would go to prison, the applicant stated that he believes he will be prosecuted and convicted of the attempted murder of [Mr C] and be sent to prison because he will not get a fair trial.
123. I asked the applicant to explain why he claims that he would not get a fair trial on the attempted murder charge in Samoa. The applicant responded by claiming that he didn’t know how he could he get a fair trial when there wasn’t a fair trial of [Mr C] for assaulting the applicant in the first place. Put another way, the applicant claimed that he doesn’t think he will get a fair trial because the authorities did the wrong thing when they didn’t pursue the charge against [Mr C] and so he doesn’t believe they will do the right thing by him now. The applicant claimed that he would not be able to present a defence to the attempted murder charge in court because he doesn’t think they (meaning the authorities) will consider what happened, or give him a chance to explain. When asked why he thought they wouldn’t give him a chance to explain, the applicant claimed that would be because he had left the country.
124. I read out excerpts from the 2022 Country Reports on Human Rights Practices: Samoa[10] about the legal and independent judicial system in terms of the rights of defendants to a fair trial and asked the applicant if he agreed with or disputed the legal system information I quoted. The applicant stated that he agreed with the information, but claimed “there can be good words, it is a book with a beautiful cover but the story inside is not a good one”. When asked what he meant by that comment, the applicant claimed that he was not saying that information about the court system is wrong, and he was not complaining about that. He claimed that “it’s not always fair because there is always things happening in the islands and we always trying to keep things from getting out. I’m not saying the islands is bad, sometimes it is not fair, sometimes they do things honestly but not always, especially when chiefs get involved”.
[10] Samoa 2022 Human Rights Report, United States Department of State, Bureau of Democracy, Human Rights and Labor, 415610.
125. When asked if he was suggesting that [Mr B] and [Mr C] had the capacity to influence the Samoan court system, the applicant responded in the negative.
126. Despite the applicant’s belief that he cannot receive a fair trial in Samoa on the attempted murder charge, there is no evidence that the Samoan authorities acted corruptly in laying the charge of attempted murder against the applicant, or that the Samoan authorities are trying to extradite the applicant to Samoa to face the criminal charge as part of a revenge plan by the village chiefs, or that the applicant would not receive a fair trial if he was returned to Samoa to stand trial.
127. Having regard to the independent country information above, I find that:
a.if the applicant is prosecuted on the attempted murder charge on return to Samoa, he will be given an opportunity to defend himself at a trial in a court of law with due process;
b.the attempted murder charge laid by the Samoan authorities has not been unfairly influenced by the local police or the village chiefs;
c.the trial process will not be unfairly influenced by the village chiefs;
d.even if the applicant is convicted of attempted murder, he will have a right of appeal against his conviction in the Samoan justice system.

128. Even if the applicant were convicted and sentenced to a term of imprisonment, on the country information, I am not satisfied that he would be subjected to serious harm or treated prejudicially in jail for any reason.
129. On the evidence before me, a prosecution for a crime contrary to the laws of Samoa brought by the Samoan authorities appears to be the correct legal process to ensure the laws and safety of of Samoan citizens are protected. Accordingly, I am not satisfied that a prosecution of the applicant for attempted murder in the Samoan courts constitutes systematic and discriminatory conduct by the Samoan authorities or any other person against the applicant, done with an intention to persecute or harm the applicant by reason of his membership of the particular social group “persons charged with serious criminal offences”, as required under s 5J(4)(c) of the Act.
130. Based on my findings above, I am not satisfied that the applicant faces a real chance of persecution amounting to serious harm if the applicant returned to Samoa now or in the reasonably foreseeable future:
a.from the village chief or his family, either as part of a revenge plan to punish the applicant for the hot water incident, or for any other reason; or
b.because he has been banned from his village by the village chiefs; or
c.from the Samoan government authorities extraditing him to Samoa or prosecuting him in a Samoan court for the attempted murder of [Mr C]; or
d.from being unable to get a fair trial under the judicial processes of the Samoan court system; or
e.for any reason cited in s 5J(1)(a) of the Act.

131. It follows that I am not satisfied that the applicant has a well-founded fear of persecution for any of the reasons in s.5J(1) of the Act, if he returns to Samoa, now or in the reasonably foreseeable future.
Is the applicant entitled to complementary protection?
132. Having found that the applicant does not meet the refugee criterion, I have considered the alternative criterion, namely whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Samoa, and is entitled to complementary protection under section 36(2)(aa) of the Act.
133. The applicant’s claims to complementary protection are essentially the same as his refugee claims. On the evidence before me, I find there is no real risk that the applicant will be subjected to significant harm as defined in the Act, by the village chiefs or their families, or by the Samoan authorities in extraditing the applicant to Samoa and prosecuting him on the charge of attempted murder, by the village chiefs banishing the applicant from his village, or for any other reason.
134. Accordingly, I am 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 that he will suffer significant harm pursuant to s 36(2)(aa) of the Act.
Is the applicant a member of the same family unit?

There is no suggestion that the applicant satisfies s 36(2) of the Act 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.
CONCLUSION
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. The applicant does not satisfy the criterion in s 36(2) of the Act.
DECISION

137. The Tribunal affirms the decision not to grant the applicant a protection visa.
Karen Vernon
Senior 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.
…

[2023] AATA 4616

27 November 2023

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