2315184 (Refugee)

2315184 (Refugee) [2023] AATA 4838 (8 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2315184
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Mr S Norman
DATE:8 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 December 2023 at 11:38am
CATCHWORDS
REFUGEE – protection visa – Samoa – borrowed money another family to pay for father’s funeral and could not repay because of financial hardship – assaulted and hospitalised – country information – funeral customs, law enforcement by village councils and police, and availability of internal relocation – remained in local area between assault and departure, and family members still there – under-employed or unemployed while holding work visa – as refugee applicant, holds bridging visa with unrestricted work rights – no evidence that recent assault perpetrated by creditor family member – creditors’ wish to recover money, not harm applicant – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
BPF15 v MIBP (2018) 264 FCR 319
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of Samoa, applied for the visa on 20 September 2022.
The Department delegate’s decision was lodged with the Tribunal.
The applicant appeared before the Tribunal on 7 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Miss A] (the applicant’s aunt). The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.
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 (see attachment).
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s receiving country:
The applicant lodged a photocopy of the bio-data page of his Samoa passport with the Department (expiry date: [2031)[1]). Based on this evidence, the Tribunal accepts the applicant is a citizen of Samoa and that Samoa is his receiving country.
The applicant’s migration history:
[1] PDF – p.26, 53.
The applicant claimed to have lawfully departed Samoa on or around [December] 2021,[2] and he said he travelled to Australia on a seasonal worker visa.[3]
The Tribunal’s consideration of material claims:
[2] PDF – p.12.
[3] PDF – p.13.
The Christian applicant ([DOB]), claimed to have been born in [Village], Savaii Province in Samoa. Prior to his travel to Australia, he had lived with his mother and [sisters] in [Village], Samoa ([on] Savai’i Island), being where his father’s family had resided. In Samoa, he had been employed ‘looking after his family plantation’.[4]
[4] PDF – p.14.
In the Protection visa (PV) form, and as summarised by the delegate, the applicant claimed:[5]
[5] PDF – from p.16.
·The applicant left Samoa to work in Australia under the seaonsal work program.
·The applicant claims their father who died two years ago, was the financial provider for their family. Prior to travelling to Australia, the applicant was staying with their mother and two sisters at their father’s family home in [Village] Samoa.
·The applicant worked as a farmer in their own plantation, selling vegetables and taro. However, due to the pandemic the market went down and sales reduced. The applicant suffered a lot financially and chose to come to Australia so they can work and earn more money to support their family.
·Even though their family suffered financially, but the applicant that they personally suffered because of the money they borrowed from some family members in order to hold a funeral for their father.
·The applicant claims was physically abused by the people who loaned them the money because they did not pay it back due to financial hardship. The applicant was admitted to hospital for a week and claims that their life was nearly taken away.
·The applicant was threatened by the same people that harmed them not to report the incident to the Authorities in Samoa, or they will take their life away. The applicant remained silent.
·Due to their financial circumstances, the applicant was not able to relocate to other parts of the country, as they had no money to move anywhere, this was not an option.
·The applicant claims that prior to arriving in Australia, the seasonal work contract that they signed, stated they would be working 36 hours a week. However, this was not the case and the applicant claims that when they first arrived in Australia, they were only earning $250 a week, and that the hours of work were only 20 to 25 hours a week.
·The applicant and other workers left the seasonal work programme due to lack of work during the floods, and had to look for work elsewhere.
·The applicant claims, the reason why they left their family back home was in search of a better life, with stable employment, so to support their family and themselves.
·As they haven’t settle their debt in full, the applicant fears if they return to Samoa, they will be mistreated and may even get killed by the people who harmed them. The applicant does not believe that the authorities in their country can protect them.
The Tribunal understands that in 2023, the population of Samoa is estimated to be 225,681.[6] Regarding Samoa, the country information stated:
Samoa consists of the two large islands of Upolu and Savai'i and seven small islets located about halfway between Hawaii and New Zealand in the Polynesian region of the South Pacific. The main island of Upolu is home to nearly three-quarters of Samoa's population and its capital city of Apia. The climate is tropical, with a rainy season from November to April.
The Fa'a Samoa, or traditional Samoan way, remains a strong force in Samoan life and politics. Despite centuries of European influence, Samoa maintains its historical customs, social systems, and language, which is believed to be the oldest form of Polynesian speech still in existence…[7]
[6] Samoa Population 1950-2023 | MacroTrends, accessed 7 December 2023.
[7] Samoa (09/09) (state.gov) , accessed 5 December 2023.
The Samoan Constitution provides citizens the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage.[8]
The cost of the funeral and the mid-2020 assault in Samoa:
[8] US DEPARTMENT OF STATE, 2022 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: SAMOA.
At hearing, the applicant explained that his father passed away in mid-2020 and his family borrowed money from another (unrelated) family in the same [village]. The country information indicated that funerals in Samoa cost around WST 15,000-30,000[9] (approx. AUD 8,360-$16,715). However, the country information also advised that custom is important in Samoa, and that it is customary at funerals to give gifts to the immediate family of the deceased - usually these gifts are mats or money.[10] When then asked, the applicant claimed his family only had to borrow approximately WST 2,000 (AUD 1,115) from the unrelated family (hereafter the ’creditor family’).
[9] Making Funeral Insurance Accessible to Samoans for the First Time - UN Capital Development Fund (UNCDF), accessed 6 December 2023.
[10] A Thing of Love: Samoan Traditions & Samoan Gift Giving (virginexperiencegifts.com), accessed 6 December 2023.
The applicant had lodged a medical report dated 27 August 2022.[11] That was requested by the applicant’s mother (in Samoa), and in the ‘interest of supporting the applicant’s visa extension in Australia’. The report related to the incident (also in mid-2020) involving the applicant, presenting to a Samoan hospital with an injured [Body part]. It was claimed the applicant had ‘got into a quarrel with some people that ended in a physical brawl’. The applicant was referred to [health] services for treatment.
[11] PDF – from p.25.
When discussed at hearing, the applicant explained the creditor family wanted their money repaid (as noted above, approx. AUD 1,115). The applicant was not able to repay the money and he was assaulted (by two sons from the creditor family) and he was threatened not to report the assault to the police. As he feared what might happen, the assault was not reported. However, the country information stated:
The national police, under the Ministry of Police, Prisons, and Corrections Services, maintain internal security. Civilian authorities maintained effective control over the security forces. There were no reports that members of the security forces committed abuses.
…..
The government took steps to prosecute officials who committed human rights abuses or engaged in corruption. There were no reports of impunity for human rights abuses. Impunity for corruption was rare.[12]
And:
‘The professionalism of the Samoan police is above average in comparison with neighboring (sic) Pacific islands. Local chiefs deal with minor crimes; if the crime is severe, local magistrates will call on assistance from central police authorities.’[13]
And:
In some instances, village councils also play a role in punishing offenders. Village councils typically punish domestic-violence offenders only if they consider the abuse to be extreme, such as when there are visible signs of physical abuse. In recent years, several villages have started incorporating specific fines into their village bylaws.[14]
[12] US DEPARTMENT OF STATE, 2022 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: SAMOA.
[13] 'Samoa Country Security Report 9 June 2023', Overseas Security Advisory Council (OSAC), 09 June 2023, 20230802195051.
[14] 'Country Reports on Human Rights Practices for 2022 - Samoa', US Department of State, 20 March 2023, p.20230322102735.
At hearing, the Tribunal said it may appear the police could and would provide any protection the applicant needed in his home village. The applicant did not believe the local police were effective. It was also later explained the aforementioned two sons from the creditor family were later banished from the village (by the village council). It was not explained why, though it was feared the banishment was not permanent and only temporary – and on their return, or even prior to their approved return, the two sons (or others) may seek the applicant out in the village and harm him again. It was also feared the two sons were members of a local gang.
Be that as it may, the Tribunal noted that between the mid-2020 assault (which the Tribunal accepts had occurred) and the applicant’s departure from his local village [in] December 2021 (almost 18 months later) he continued to live in his home village and did not claim to have been harmed, harassed or even questioned by anyone in that time. Neither did he claim to have taken any steps to protect himself. Further, and though he maintains telephone contact with his family on three or four occasions per week, and who continue to live in the same local village in Samoa, he did not claim his mother or two sisters had been harmed, harassed or even questioned at all.
The Tribunal said (words to the effect) this may support the conclusion the applicant would not have a real chance of suffering serious or significant harm in his home village in Samoa. The applicant still feared harm. However, the Tribunal did not ultimately accept this was correct. Further, this is part of the reason that ultimately satisfied the Tribunal the applicant did not have a real chance of suffering serious or significant harm in his home [village], Samoa.
Since the applicant’s arrival in Australia:
The applicant explained that on arriving in Australia he was not employed as much as he had initially been promised. As noted above, he said on occasion he only earnt approximately $250 per week in Australia. He had arrived in Australia [around] December 2021 and only worked for his initial employer for around three months before he left. He then remained unemployed for nine months, principally living with relatives in Sydney. The Tribunal noted the country information which stated:
There has been a huge spike in Pacific Islanders applying for protection visas [in Australia] because they offer better working conditions than the government program designed to help workers from nine islands and Timor-Leste come to Australia, advocates say.
…..
While their applications are assessed, the workers are granted bridging visas, which offer unrestricted working rights. Conversely, Pacific Australia Labour Mobility (Palm) workers are currently tied to one employer during their stay.
Some Palm workers have told Guardian Australia they make as little as $200 a week and can go weeks without work.[15]
[15] 'Pacific Islander workers making as little as $200 a week in Australia seek protection visas for better pay', Guardian (Australia edition), 23 July 2023, 20230724090340.
The Tribunal therefore accepts the applicant worked for his initial employer in Australia for three months, and then he left and remained unemployed for nine months while living with relatives in Australia (principally in Sydney). However, for the last 12 months (prior to the hearing) he had been employed full time in a [company], and he was able to remit approximately WST 500 (approx. AUD 280) per month to his family (mother and [sisters]) in Samoa. The Tribunal accepts this is correct.
When then asked if any of the funeral debt (for his father) had been repaid, the applicant said no. Though he did not dispute he could have repaid the debt (AUD $1,115), he decided not to repay the debt. He believed the debt had been repaid for reason of the assault on him in Samoa in mid-2020, and given he did not report the assault to the police.
Though the applicant did not respond to the Tribunal s.424(2) letter (and the Tribunal notes he was not represented), at hearing he claimed that in April 2023 he was assaulted at a 21^st party given by his aunt (for her son). The applicant had attended that party, but on the following morning the aunt had found the applicant laying in her yard, and he had been attacked. He was taken to [hospital] and stayed for two nights prior to being discharged (he had suffered a [Body part] fracture).
The aunt then claimed to fear a third son from the creditor family had travelled to Australia on a visitor visa, and he may have attacked the applicant at the aunt’s party. The NSW police had not located the perpetrator of the attack, but the aunt had ‘heard rumours’ it was a third son from the creditor family who may have attacked the applicant in Australia. The Tribunal will accept the applicant was harmed in April 2023 (NSW Health ‘Discharge’ notice dated [April] 2023 was lodged with the Tribunal on the day of the hearing). However, the Tribunal noted the identity of the perpetrator of the harm was mere speculation on the aunt’s part, and this was not disputed. Without more (and the applicant did not claim to know who attacked him), the Tribunal does not accept a third son from the creditor family attacked the applicant in Sydney in April 2023.
Based on the above discussion and given the country information considered, the Tribunal was not satisfied the applicant feared harm for reason/s of any prescribed ground in Samoa. That is because the Tribunal was not satisfied the perpetrators wished to do more than recover their monies, rather than harm the applicant for reasons of any prescribed ground.
Accordingly, the Tribunal is not satisfied the applicant has a real chance of suffering serious harm for reason of a prescribed ground in Samoa.
Complementary protection:
If an applicant is not found to be a person in respect of whom Australia has protection obligations under the 1951 Refugees Convention, they may nonetheless meet the criterion for a Protection visa in paragraph 36(2)(aa) of the Migration Act. That paragraph provides that the ‘decision maker’ must be satisfied that Australia has protection obligations to a non-citizen in Australia because the ‘decision maker’ 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 (the applicant) will suffer significant harm. Subsection 36(2A) of the Migration Act defines significant harm as:
(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.
Also, in MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part):
In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … is there a real chance that [the applicant] will suffer significant harm… were he to return to [his receiving country] [246]
For the purposes of this decision, the Tribunal proposes to accept the aforementioned two sons from the creditor’s family may one day be allowed to return to theirs, and the applicant’s, home village in Samoa. Further, and even though the Tribunal does not accept the applicant was attacked in Sydney in April 2023 by a third son from the creditor family, the Tribunal will accept there is an ongoing motivation on the part of the creditor family to recover their money.
Based on those of the applicant’s claims that I have accepted, and the country information in the sources cited herein, I do not accept the applicant has a real chance of suffering the death penalty in Samoa. Also, based on the findings herein and the country information considered, I am not satisfied the applicant has a real chance of suffering arbitrary deprivation of life in Samoa.
Next, the Tribunal is not satisfied the applicant has a real chance of suffering harm that could ‘reasonably be regarded as cruel or inhuman in nature’ (cruel or inhuman treatment or punishment). That is because based on the findings herein, the Tribunal is satisfied the intention is to recover the debt and not to inflict harm – which may be a consequence but not the intention of any violent behaviour. For the same reasons, neither is the Tribunal satisfied the applicant has a real chance of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to Samoa.

Next, the definition of torture in the Act is said to derive from the non-refoulement obligations in Art 3 of CAT and Arts 2 and 7 of the ICCPR.[16] However, there are material differences between the Australian and international definitions. For example, in contrast to the definition of ‘torture’ in Art 1 of CAT, there is no requirement in s 36(2A)(c) or in the definition in s 5(1) that the harm be committed by a person who is a public official or acting in an official capacity.[17]
[16] Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) at [51].
[17] BPF15 v MIBP (2018) 264 FCR 319 at [72], referring to the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 at [52].
Therefore, and based on the findings herein (including that the applicant refuses to repay the debt), and for the purposes of the following discussion, the Tribunal will accept there is a real chance the creditor family may seek to intimidate and or coerce the applicant intentionally, in order to force him to repay the debt to the creditor family in his home village in Samoa.
Regarding whether it is safe and reasonable to relocate within Samoa, as well as other country information cited herein, the country information stated:
Internal migration especially migration from the rural to the urban areas has long been observed in Samoa. The continuous concentration of social and economic developments leading to better life opportunities for young school leavers in the urban areas further attracted movements towards the town.[18]
And:
There tends to be a distinction between the urban and village areas in Samoa. Most Samoans have lived in coastal villages and continue to do so, with about four-fifths of the population located in rural areas. In the village area, local law prevails, which can vary from village to village. Conversely, Apia (the capital city) contains approximately one-fifth of Samoa’s population. Most of those who live in the cities like Apia often move to earn more money for their families and communities. For many, living in the city is temporary as they often intend to return to their village later.[19]
And:
Violent crime rates are relatively low. Police officers are occasionally accused of physical abuse. Prisons lack adequate resources, resulting in poor conditions including overcrowding, as well as breakdowns in security.[20]
[18] Ch 8 Internal Migration (2001 Census).pdf , accessed 5 December 2023.
[19] Samoan Culture - Core Concepts — Cultural Atlas (sbs.com.au) , 2017, accessed 5 December 2023.
[20] 'Freedom in the World 2023 - Samoa', Freedom House, 2023, 20230804130455.
When discussed at hearing, the applicant claimed he did not know where the sons of the creditor family now were (after they were temporarily banished from the village), though he feared they belonged to a gang. However, the Tribunal noted they apparently resided on the island of Savai’i and three quarters of the population resided on the neighbouring island of Uplou (where the capital city, Apia, was located). The Tribunal also noted the relatively low rates of violent crime in Samoa, and the apparent effectiveness (at least compared with other neighbouring States) of the police and security services in Samoa. The applicant said he was none-the-less scared.
That being said, given the country information considered, and based on the accepted evidence herein, the Tribunal is satisfied the applicant can safely relocate within Samoa. I do not accept there exists a real chance the applicant would be located, even if there exists any ongoing intention to do so, should he safely relocate within Samoa (including to the neighbouring island of Upolu).
Regarding whether it is reasonable for the applicant to relocate, the Tribunal notes he had relocated to Australia, a country with a language, culture and history different to his own. The country information also stated:
APIA, SAMOA (29 September 2023) — Samoa’s economy is forecast to have grown by 6.0% in financial year 2023 and is expected moderate to 4.2% in financial year 2024 (ending June 2024), says the Asian Development Outlook (ADO) September 2023, an update to ADB’s flagship economic publication. Both estimates are an upward revision from ADO April 2023.
“Despite Samoa’s tourism rebound, labor constraints are becoming increasingly prominent and may be a drag on future growth if not mitigated,” said ADB Chief Economist Albert Park. “Interventions to support growth may include skills training, immigration, and labor force participation.”
Labor turnover has been significant, especially in tourism services, and continued growth in labor participation as well as attracting former residents and overseas workers back to the domestic market will be needed to boost growth.[21]
And:
The Samoan economy has begun recovering after a three-year recession driven by the Covid-19 pandemic. A rebound in economic activity has followed the lifting of domestic Covid-19 restrictions in July and the pickup in visitor inflows when borders reopened in August. … lower food and energy prices in recent months have brought down inflation to 7.5 percent y/y in December, and inflation is projected to ease further in 2023.
Economic growth is projected to remain above trend in FY2024 and FY2025 as tourism inflows and the domestic economy normalize.[22]
[21] Growth Forecast for Samoa Revised Up on Tourism Rebound — ADB | Asian Development Bank, accessed 13 November 2023.
[22] On March 8 the Executive Board of the International Monetary Fund (IMF) concluded the Article IV consultation with Samoa , accessed 13 November 2023.
The country information also stated:
The constitution provides for the freedoms of assembly and association, and the government generally respected these rights. …
…..
The law protects the rights of workers to form and join independent unions and collectively bargain. The law provides for the right of private-sector workers to conduct legal strikes.[23]
[23] US DEPARTMENT OF STATE, 2022 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: SAMOA.
At hearing, and given the rebounding of the Samoan economy, and the need to encourage workers back to Samoa to assist with new economic growth, the Tribunal said it believed the applicant may seek work commensurate with his skills in Samoa. The applicant still feared he would be located by the sons of the creditor family, irrespective of where he travelled in Samoa (though the Tribunal has not accepted this for the reasons set out above).
Next, the applicant had referred to attending a hospital near his home area in Samoa (for treatment after being assaulted in mid-2020). The country information also stated:
Samoa has several hospitals on Upolu and Savai’i.
Samoa’s main hospital is Tupua Tamasese Meaole Hospital at Motootua, Apia, Upolu Island.
Connected to outlying hospitals, this central hospital provides a range of specialist medical services, surgery and outpatient clinics.
Along with the main hospitals, there are also several health clinics and general practitioners located around Samoa. In many rural areas healthcare facilities are basic.
Samoa also has a number of pharmacies, one of which is located at Apia’s main hospital.[24]
[24] Medical Centres in Samoa, accessed 7 December 2023.
There did not appear to be any problem with respect to health or any other issue/s, should the applicant relocate within Samoa.
Accordingly, and based on the country information considered and the findings herein, the Tribunal was satisfied it would be reasonable for the applicant to relocate in Samoa.
The applicant said he wished to remain in Australia inter alia in order to have a better life, and to avoid being harmed by the sons of the aforementioned creditor family in his home village in Samoa.
However, based on the evidence and the findings herein, the Tribunal was satisfied the applicant can safely and reasonably relocate within Samoa.
Failed asylum seeker:
As noted at hearing, the country information considered included:
There were no requests for asylum or refugee status, and the government had no interaction with the Office of the UN High Commissioner for Refugees, whose regional representation is based in Canberra, or with other humanitarian organizations in providing protection and assistance to asylum seekers and refugees. Government officials were cooperative with several domestic and international human rights groups dealing with a variety of other matters.
And:
Independent Monitoring: The government permitted monitoring visits by independent human rights observers. During the year there were multiple visits by international organizations and diplomats.[25]
[25] US DEPARTMENT OF STATE, 2022 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: SAMOA.
Though the Tribunal did not locate information pertaining to failed Samoan asylum seekers returning to Samoa, the country information seen did not indicate that such persons, without more, would have any chance of material harm on return. When discussed at hearing, the applicant claimed to fear returning to Samoa, for the reasons already discussed above.
However, based on the country information considered and the findings herein, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Samoa, if returned as a failed asylum seeker.
For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Having concluded the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal considered the alternative criterion in s 36(2)(aa). For reasons given, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion 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.
Mr S Norman
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 4838

8 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice