2314954 (Refugee)
[2024] AATA 871
•25 January 2024
2314954 (Refugee) [2024] AATA 871 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW: Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE: Unrepresented
CASE NUMBER: 2314954
COUNTRY OF REFERENCE: Samoa
MEMBER:Kate Chapple
DATE:25 January 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 25 January 2024 at 1:45pm
CATCHWORDS
REFUGEE – protection visa – Samoa – financial hardship and stress – under-employed while holding seasonal worker visa – acknowledgement that protection visa not appropriate for circumstances – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application
Protection visa application lodged 18 August 2023.
The applicant’s written protection claims (spelling and grammatical errors not corrected):
2.1.[reason applicant left Samoa] going through a lot of stress through financial hardship then I decided to come to work in Australia.
2.2.[harm experienced by applicant in Samoa] Financial hardship caused me very stress and uncomfortable. Lack and not enough to support my family financially. Feeling beaten down from money worries. Sometimes it can leave my feelings angry, ashamed and fearful.
2.3.[reason applicant didn’t seek help in Samoa] Not enough money to full fill any need also not enough money to seek help to other places.
2.4.[reason applicant didn’t try to move elsewhere in Samoa] Moving to the other part of the country is not an option.
2.5.[what applicant thinks will happen to her if she returns to Samoa] No future when I go back home.
2.6.[harm or mistreatment to applicant if she returns to Samoa] Ashamed and embarrassed from people because everybody knows I am not coming back home.
2.7.[reason applicant thinks Samoan authorities could not or would not protect her] The government sending lots of Samoan in overseas through seasonal worker. It means that tells the world the economy in Samoa is way too low and people are suffered.
2.8.[reason applicant thinks she can’t relocate elsewhere in Samoa] I can't see myself relocate in Samoa anymore because the economy so low not enough jobs to work also the rate of salary is not good to support families and children.
Applicant’s written statement (undated), the relevant excerpt as follows (spelling and grammatical errors not corrected):
I have no evidence to support my claim as a protection visa applicant, but I choose to write a letter to the best of my knowledge to explain the reason why I am not able to go back home.
I am a mother of [dependent children], my husband was working to support us financially back home, but his salary couldn't cover all our daily expenses throughout the week. I choose to come in Australia through seasonal worker while my husband staying back to look after my children. Came here to work as a seasonal worker and expecting a lot of hours to work but our cleared amount each week after all deductions only $328 in hand. I decided to sign out from the seasonal worker and apply for protection visa. While I was in Samoa, I went through a lot of financial hardship it caused me so stress and uncomfortable. Most of the time my children asked for something they need at school, and I can't afford to have it for them.
Sometimes we have lack of food and water to drink, we have water tank to store water for us to drink but it depends on the rain to fill this tank for another couple of weeks. I have not enough money to connect a water line to our house, also we have no electricity to our house. I believe every parent needs to see their children successful in life. The same feeling, I had been to work hard to provide for my children. The house we live in Samoa is not a good and secure house for my family, but I need to seek a better future for my family. Thank you for considering of my application and your decision will much appreciated.
Decision record dated 13 September 2023 relating to the delegate’s refusal decision.
Departmental case file.
Application for review
Application for review lodged 21 September 2023.
The Tribunal wrote to the applicant inviting her to attend a hearing on 25 January 2024 and to provide pre-hearing submissions.
Prior to the hearing, the applicant notified the Tribunal that she had moved interstate. The applicant accepted the Tribunal’s offer to conduct the hearing via telephone and requested the assistance of a Samoan interpreter. The applicant did not provide to the Tribunal any further submissions or other material in support of her case.
Hearing
The applicant appeared before the Tribunal at a hearing conducted via telephone on 25 January 2023, with the assistance of an interpreter (also via telephone) in the Samoan and English languages. The applicant was unrepresented.
The applicant gave evidence, summarised by the Tribunal as follows:
10.1.The applicant was born in [Year] on [Island], Samoa where she grew up with her parents and [siblings]. Her parents separated when she was [age], and her father took over the care of the children. Her father was a farmer, and is now aged [Age]. The father moved to [Country 1] three years ago; he married a [Country 1 person] and is a [Country 1] citizen. The siblings remain in Samoa; some work in government jobs, others are unemployed. The mother also remains in Samoa; the children, including the applicant, help support her as she is not working.
10.2.The applicant completed 12 years of schooling. After finishing school in [Year], she had a family and worked for the owner of a [small business]. She married in 2010, and separated in 2022. She and her former husband have [children] born in [Years]. The children live in Samoa with her former husband who [does a job task] for a living.
10.3.The applicant applied to join the seasonal worker scheme in Australia in February 2019. Due to the economic crisis in Samoa, there wasn’t much work available. The applicant needed to come to Australia so she could help support her children as they were starting to enter colleges.
10.4.The applicant came to Australia in May 2021 on a three-year 403 visa, which expires in May this year. When she was granted the visa, she understood that she would have to return to Samoa when the visa expired.
10.5.The applicant worked for two years at a [workplace] in [town], then moved to Brisbane to live for five months with the aunt of a friend she had worked with. She then moved to Sydney to look for work. Whilst the applicant has been employed in Australia, she has sent money home every week to her former husband to help support the children.
10.6.The applicant found out about protection visas through Facebook. A friend recommended a person who could help her with her application. The applicant gave the person some information about her circumstances and a photograph of her house in Samoa; the person filled out the visa application for her. The person mentioned that a protection visa was for refugees. She believed that the visa protected her and granted her legal citizenship while she is in Australia.
10.7.The Tribunal explained to the applicant the legal requirements for the grant of a protection visa according to the refugee and complementary protection criteria. The Tribunal asked the applicant why she thought she was a refugee. She responded that she hadn’t previously understood what a refugee is, but now understands. She acknowledged that a protection visa isn’t appropriate for her circumstances.
10.8.The applicant asked the Tribunal what other visa she could apply for. The Tribunal explained that it was an independent decision-maker and could not provide advice. The Tribunal recommended that the applicant seek advice from a lawyer or migration agent, or contact the Department for information about her visa options. The Tribunal emphasised that if its decision is to agree with the Department’s refusal of the protection visa, she would need to return to Samoa, and from there she would need to consider her visa options for returning to work in Australia.
Country information
The DFAT country brief for Samoa provides (inter alia) that:
11.1.Samoa participates in the Pacific Australia Labour Mobility Scheme which helps Australian employers access short-term labour in rural and regional areas to meet their seasonal harvest needs and enables Samoan workers to support their families and communities in Samoa. Pacific labour mobility also helps create strong links between people, business, and communities, fostering deeper connections between Australia and Samoa.
During the COVID-19 pandemic, Pacific and Timor-Leste workers have been the lifeblood of many businesses, meeting critical worker shortages in regional and rural Australia. Throughout the pandemic, remittances have also provided a vital lifeline to families and communities in Pacific countries and Timor-Leste.
As at 30 April 2023 there were 4,673 Samoan workers in Australia under the Pacific Australia Labour Mobility scheme.
11.2.Samoa's economy was heavily impacted by COVID-19. Tourism was hard hit and has experienced a slower than expected rebound following borders reopening in August 2022. Record growth in remittances (22 per cent for the year to December 2022) from Samoan’s working abroad has provided some buffer. New Zealand, Australia and the United States are the main source of remittances. Foreign development assistance in the form of loans, grants and direct aid is an important component of the economy. Approximately 60 per cent of the population is employed informally and work in subsistence agriculture or local commercial ventures. Key domestic sectors are services, tourism and agriculture.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of her protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
The Tribunal considers the applicant’s oral evidence is a truthful account of her life and experiences in Samoa, and the reasons she came to, and wishes to stay in Australia, and is consistent with the claims in her protection visa application and supporting statement.
The Tribunal accepts that:
16.1.The applicant and her family experienced economic hardship in Samoa.
16.2.The applicant’s children, although supported by the applicant and her former husband, continue to experience economic hardship in Samoa.
16.3.The applicant’s motivation for coming to and remaining in Australia is to earn sufficient money to support her children in Samoa.
Based on the country information, the Tribunal notes the applicant’s circumstances reflect those of many Samoans who have come to Australia on the seasonal worker scheme to help support their families in Samoa, and further notes the Samoan economy’s significant reliance on remittances from Samoans working abroad, including in Australia.
The Tribunal considers it is likely the applicant would experience some economic hardship if she returns to Samoa and would have some difficulty earning sufficient money to support herself and her children, and help support her mother.
The Tribunal does not consider however that this economic hardship is targeted at the applicant by reason of race, nationality, religion, membership of a particular social group, or political opinion.
The Tribunal considers it is not likely that, if the applicant returns to Samoa, she would face harm, by cause or nature, that would engage Australia’s protection obligations.
The Tribunal is satisfied that the applicant’s oral and written evidence does not raise any further protection claims requiring its consideration.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
23.1.The applicant is a citizen of Samoa and a non-citizen in Australia.
23.2.The applicant does not satisfy the refugee or complementary protection criteria set out in the applicable law.
23.3.If the applicant is returned to Samoa, there is no real chance that she would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
23.4.There do not exist 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 the applicant will suffer significant harm.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) 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) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
MemberATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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