2313545 (Refugee)

2313545 (Refugee) [2023] AATA 4601 (30 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2313545
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Alan McMurran
DATE:30 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 October 2023 at 2:34pm

CATCHWORDS
REFUGEE – Protection Visa – Samoa –no evidence that the applicant has a fear of persecution for reasons of her race, religion, nationality, membership of a particular social group or for any political opinion – wishes to continue to be able to support her mother in particular – economic hardship – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 424, 499
Migration Regulations 1994, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 lodged 2 September 2023 for review of a decision made by a delegate of the Minister for Home Affairs on 30 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [name], who claims to be a citizen of Samoa, applied for the visa on 8 February 2023. The delegate refused to grant the visa on the basis that the applicant did not provide any reason that she would be harmed on returning to Samoa, and did not fear persecution for one or other of the reasons required by s5J(1)(a) of the Act.
The applicant appeared in person before the Tribunal on 30 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s elder sister, Ms [A], an Australian citizen and Samoan national. An interpreter in the Samoan language was also present.
The applicant was unrepresented.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant, a single person, is a [age] year old citizen of Samoa. The applicant came to Australia on [date] September 2021 under the Pacific Australia Labour Mobility Scheme, on a short-term seasonal work (subclass 403) visa.
The applicant completed her seasonal work in or about May or June 2022 at [Town 1], where she had been picking and packing [goods]. She had worked picking and packing in several other locations between September 2021 and June 2022.
From about October 2022, the applicant found factory work in [Sydney], and moved to live with her elder sister near [City], travelling to and from Sydney each day for her work.
The applicant seeks to remain in Australia to continue her current employment for the reasons discussed below.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has met the refugee criteria and established a well-founded fear of persecution for reason of her race, religion, nationality, membership of a particular social group or political opinion.
The applicant’s Claims
The applicant argues that her family situation in Samoa requires her financial support from her working in Australia, because her mother needs medical treatment and her family is very poor.
The applicant says her elder sister was supporting the family in Samoa by working in Australia, but is no longer able to do so because her elder sister is unable to continue to work and is now on a disability pension. The applicant says the burden of her Samoan family for financial support now rests with her.
The applicant seeks to rely upon the claims in her application, which are set out in narrative form, and explain that in Samoa:
·Her family is poor and lives in a small village in a hut which is insecure and not weatherproof
·The cost of living is very high as are the family expenses, with ‘many siblings’
·It is hard to find employment and pay is ‘very little’
·It was hard to leave her husband and daughter behind
·Her financial support has greatly assisted the family
·She may be harmed for ‘speaking out’ or given ‘harsh punishment’ by the village
The hearing
The Tribunal inquired how the application came about.
The applicant explained that she had seen an advertisement on Samoan social [media]. She found a person who helped her with the application. The applicant seemed reluctant to explain how she came to make the application and said she had not received any advice. She said that no one had explained to her what a refugee was or what was required, but after the application was lodged, she had paid the person the visa application cost and later on, a fee.
The Tribunal asked about her family. The applicant explained that, contrary to what was written in her application, she was not married, had no children of her own, and was now living with her elder sister near [City].
She gave details of her seasonal work in different parts of the country and is now working in a factory in [Sydney]. The applicant provided a written confirmation of her employment with a letter from the employer, [dated] 27 October 2023. The letter confirms the applicant commenced working in her current role on 20 October 2022 as a ‘general factory hand’ for 30 hours per week. The applicant stated she earns $800 per week.
The applicant also provided a letter from her elder sister, who explains that the applicant “is now the main provider for our family in Samoa”. The letter asks that the applicant is “able to continue assisting our family in the future”.
The applicant was asked why she came to Australia. She explained that her mother needed medical treatment and money to pay the bills. Her elder sister had previously provided for the family by living in Australia and now she had taken over that role as her elder sister could not work. She said her mother “needs me to pay for medical expenses” and “my brother needs financial help” as he is unemployed.
The applicant said her main reason for coming to Australia was “to support my mother”. She said her family have not enough resources and are very poor. The applicant made no claim that she might be treated harshly on her return by the village for speaking out.
The Tribunal was asked if there were any other reasons for protection, and the applicant responded that “those are the main reasons”.
The Tribunal asked if she was afraid to return to Samoa. She said she was not afraid to return, but wants to stay in Australia where she has a good job and an income which she can use for her family and to support her mother. She was asked if she had anything further to add in support of the application, which she declined.
The Tribunal put to her under s424AA that unless the applicant could show evidence of persecution involving serious harm for one of the stated reasons being race, religion, nationality, member of a particular social group or for her political opinion, that would be the reason or part of the reason for affirming the decision under review.
The applicant was asked if she would like to comment or respond, which she declined and further did not require further time to consider. The Tribunal sought to explain the requirements to meet the refugee criterion and that the applicant consider those requirements while the Tribunal heard from the applicant’s other witness.
The Tribunal explained that it does not have any discretion to waive the requirements for meeting the definition of a refugee at law, but would listen to whatever the applicant wanted to say or questions she may want answered about the explanation.
The applicant’s elder sister who was present then gave evidence. She explained that she had become an Australian citizen many years ago, was now divorced and with a new partner, and living on a disability pension. She explained that the applicant as her younger sister had been adopted when very young and on coming to Australia now had an opportunity to become the financial provider for the family in Samoa. She explained that her other brother in Samoa is unemployed, and lives with their mother to help look after her, but he has a wife and 3 young children as well.
The Tribunal asked the witness if she was aware if the applicant was likely to be persecuted on returning to Samoa for any reason. The witness said she thought that some family members had said some “terrible things” on social media about the applicant because she had gone to Australia and they were still in Samoa. Apart from that, the witness referred to no claims that the applicant had been or would be threatened on her return to Samoa for one of the stated reasons for persecution.
At the end of the hearing the Tribunal asked the applicant if she wished to add anything further. The applicant declined. The applicant was asked if there had been any issue arising from the interpretation. She confirmed that she had understood the interpreter without any issue being raised.
Reasons and findings
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. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[1]
[1] Ibid - Chan’s case
Furthermore, the decision-maker in considering the application of the ‘real chance’ test, as it is referred to, needs to pay regard to the “reality not the appearance” [2] of a real chance, meaning careful consideration of the factual material available and the individual circumstances and context.
[2] Per Mansfield J in SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723 at [30]; see also BEQ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 621 per Farrell J.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts. Reliable fact-finding creates an objective basis for decision-making as opposed to unsubstantiated statements, speculation, or assumption, all of which carry little or no weight.
A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
Section 5AAA of the Act makes it clear that it is an applicant’s responsibility to specify all the particulars of the protection claim(s), and in respect of whom Australia has protection obligations and to provide sufficient evidence to establish and support the claim(s).
The Tribunal notes and has regard to the decision of the Federal Court in BZADA v MICand RRT [2013] FCA 1062, where Rangiah J held at [21]:
“The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.”
Whether the applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
The Tribunal has listened carefully to the applicant’s submissions and argument as to why she should be granted the visa. The Tribunal finds however, that it is not satisfied there is any evidence that the applicant has a fear of persecution for reasons of her race, religion, nationality, membership of a particular social group or for any political opinion. The Tribunal finds on the information as presented and relied upon that the applicant desires to remain in Australia for reason of economic hardship in her home country, and for the reason that she wishes to continue to be able to support her mother in particular.
No other reasons have been successfully advanced or are relied upon. The applicant has not advanced any reasons expressing a well-founded fear of persecution for one or other of the stated grounds. The Tribunal was unable to find any available country information which gives rise to concerns for returnees or failed asylum seekers, or in Samoa, from village leadership in respect of persons who may have ‘spoken out’.
The Tribunal finds on the information before it that the applicant does not have a well-founded fear of persecution for one of the stated reasons. The applicant has further stated that she is not afraid to return to Samoa and the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Samoa, that there is a real risk of her suffering significant harm.
Conclusion
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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alan McMurran
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 4601

30 October 2023

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