2315534 (Refugee)

2315534 (Refugee) [2023] AATA 4763 (8 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2315534
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Alan McMurran
DATE:8 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 November 2023 at 4:59pm

CATCHWORDS
REFUGEE – protection visa – Samoa – economic slowdown post pandemic – fear of unemployment – loss of income – possible homelessness for himself and his mother –Applicant does not have a well-founded fear arising from his race, religion, nationality, membership of a particular social group or political opinion – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 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 citizen of Samoa, applied for the visa on 31 May 2023.
The delegate refused to grant the visa on the basis that the applicant did not have a well-founded fear of persecution for reasons of his race, nationality, religion, membership of a particular social group or for his political opinion. This was because the delegate did not accept that the applicant was at risk of serious harm arising from economic hardship in his country of origin or that he would be harmed or mistreated by other members of his village.
The applicant appeared in person before the Tribunal on Monday 6 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s Aunt, Ms[A], who is a New Zealand citizen resident in Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages. No issue was raised or detected with interpretation from the hearing.
The applicant was assisted in relation to the review by his Aunt who was also in attendance as a witness, but otherwise, he was unrepresented.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Background
The applicant is a [age]citizen of Samoa and which is his country of nationality. The applicant has a short Australian visa history. He was granted a short stay Tourist visa subclass 676 [in]November 2010, and departed [in] December 2010. He re-entered [in] September 2022 on a Temporary Work subclass 403 visa, before applying for protection on 31 May 2023.
He entered Australia on a valid Samoan passport as verified by the Department. He is unmarried and living in Sydney with his Aunt at the time of this review. He has not provided any supporting information or documents, choosing to rely on his oral arguments and submissions from the hearing.
There is no issue as to the applicant’s nationality as a citizen of the Independent State of Samoa, established by the Department’s identity checks and his Samoan passport, and which the Tribunal accepts.
The applicant’s claims are set out in his written application at pages 11 and 12 of the form lodged with the Department.
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 his race, religion, nationality, membership of a particular social group or political opinion.
It should be noted for the benefit of the applicant’s better understanding of the issue, that the decision-maker on review is required to consider whether one or other of those refugee criteria is established from the available information and has no discretion otherwise to waive the statutory requirements.
The Tribunal has available the Department’s information including the application form and the following documents referred to above and submitted to the Tribunal:
·     The applicant’s passport;
·     The Department decision;
·     Post-hearing email on 6 November 2023 containing two undated extracted letters as copied by the applicant into the email;
·     Department file for withdrawn Tribunal case 2314441
·     The lodged application
The applicant’s Claims
The applicant’s protection claims are set out in his narrative answers at pages 11 and 12 of the application form. In summary, the applicant claims:
·     Samoa has been severely affected by the pandemic, and in the aftermath, Australia has more opportunities compared to the poverty and unemployment existing in Samoa
·     Economic impacts from the pandemic may lead to a significant decrease in the applicant’s standard of living on returning to Samoa for the applicant and his family, making them vulnerable
·     The applicant and his family will be harmed by a decline in the quality of life in Samoa
·      He may be harmed for voicing his concerns
·     He is hardworking and someone who can contribute to the Australian community through his work
·     In Samoa, people who cannot support themselves are treated harshly as a burden on their community
·     He would not be protected from mistreatment because of limited protection resources
·     Relocation would not help as Samoa is very small and everywhere is struggling because of the prevailing economic conditions
At the hearing, the applicant sought to introduce new claims as follows:
·     There is a family dispute between his mother and her sister which has displaced his mother from her former home, and who now needs to find a place to live
·     The land where he was living with his mother has been sold by his Aunt, and he has no home to return to; he fears becoming ‘homeless’, and ‘unemployed’ himself
·     He has purchased land recently in Samoa which he needs to pay off so his mother can live there, and he needs his income in Australia to enable him to do so
·     His mother has been living in [Island 1]on his Aunt’s land, which has also been sold, and his mother cannot remain there and has to relocate back to Samoa from[Island 1]; she will also be homeless
·     He is unsure if he will be able to find temporary care for his mother in a care facility until he can find a place for them to live and fears for the family’s social conditions
·     Care facilities have long waiting lists
·     Because of the family’s current circumstances, he will suffer mental harm.
The Hearing
The Tribunal explained to the applicant the basis for bringing a protection application and Tribunal process on review. The applicant said he was ready and willing to proceed with the hearing and did not seek an adjournment.
The applicant was asked for his submissions. He asked the Tribunal to have regard to supporting letters he had recently submitted and which the Tribunal noted were not received and had not been considered.
The two letters relied upon were submitted immediately after the hearing.
One letter (undated) was from the applicant’s ‘partner/girlfriend’,[Ms B]. She submitted that she had been with the applicant since 2018, knew him, and that he was looking after his mother. She stated that while he was in Australia on the seasonal work program, he had sent his mum to [Village 1]to live with her elder sister. She confirmed that the applicant wanted to “extend his stay” in Australia, so he could “pay off the land” that he had purchased in Samoa for his mum, because he could not return to live with his mother on his Aunt’s land where they had lived before, due to “some differences”. She submitted the applicant needed to stay in Australia for financial reasons so as to be able to continue to help his family and his mother.
The second letter (also undated) was from the applicant’s sister stating that their mother had “no place to live in Samoa cause of her age and health” and that her brother needed to pay off the land “he made for her, our mother”. The letter confirmed that the writer was taking care of their mother “until my brother pays off the land”.
The applicant was asked questions about his claims and fears. The applicant confirmed that before leaving Samoa he had been caring for his mother. He said he was responsible for her care. Because she could no longer rely upon living with her elder sister in[Island 1], and the place where they had previously lived was now sold, he would need to find somewhere for them to live. He had only just purchased some land in Samoa to enable them to relocate, but he needed time to pay off the land from an Australian income. He said he would not have employment back in Samoa because of the economic situation there.
He said he would be trying to find an aged care facility for his mother until he was able to locate alternative accommodation. The letter submitted from his sister notes that she also is taking care of their mother, while she has no place to live. The applicant explained the somewhat complicated personal circumstance between his mother and her sister, which in summary was that his Aunt was now living in America and had sold the land in Samoa where he had been living with his mother.
The Tribunal explained to him that being unemployed and homeless was not of its own a ground for refugee status and he needed to explain what harm he feared and from whom, and the real chance of that occurring in the foreseeable future.
The applicant argued that he would be ‘emotionally harmed’ because of his family circumstances of unemployment, no income, and no home, and the social environment in Samoa on his return. He anticipates his mental state will suffer. He agreed however, that he was not afraid to return because of Police or any other authority. He made no claim that he would be harmed because of his personal circumstances or discriminated because he was a ’burden’, but rather because of his state of mind, of being unable to find a job or a home. He claims he could not go to [Island 1]to live with his sister, whereas she has married an American and can remain there, and he has nowhere else to go with his mother.
He was asked what he meant in his claim that he would be harmed for ‘voicing’ his concerns. He explained he was concerned about the mental repercussions for him of returning. He did not mean he would be speaking out about the government or authorities, but rather for his own mental state. He said in Samoa, people do not speak out against the government, and it “does not happen”, and he has never spoken out as such before.
He was asked why he did not want to return. He referred to the family’s circumstances and the fact he wants to remain in Australia to find a job, earn money, and consolidate a place in Samoa for himself and his mother. He said he first worked in Australia on the worker seasonal program on a farm. He said he is currently earning $940 per week working full-time in a factory at [Suburb 1[‘[duties]’. He said he has been doing that for the past 6 months, and accumulating savings.
The applicant was offered the opportunity to submit more information, but declined.
[Ms C] was asked if she wished to add anything. She explained that she was the applicant’s Aunt and his mother’s sister. She said her sister is now aged [age]. She said she is herself a New Zealand citizen resident in Australia. She submitted that the applicant will be ‘affected’, on returning to Samoa, meaning he will be ‘harmed’ because he will have no job and cannot resume living where he was living before. She said her sister would not be guaranteed accommodation in a care facility either as there was a long waiting list.
Neither the applicant nor his Aunt sought to make any further submissions, and their argument to the Tribunal on review is that the applicant should be allowed to remain in Australia where the applicant can work and live with his Aunt while saving to pay off a place for himself and his mother in Samoa. Otherwise, he will suffer because of unemployment and having nowhere to live back home.
Relevant Country information
The economic situation
The Tribunal has had regard to the available relevant country information about Samoa. A current (2023) country Brief from DFAT, notes that Samoa consists of two main islands housing 99% of the population of approximately 200,000. The government is a parliamentary democracy with a constitution and political system which takes account of its traditions and culture.
As at 30 April 2023 there were 4,673 Samoan workers in Australia under the Pacific Australia Labour Mobility scheme. The 2021 census recorded over 98,000 Australians identifying themselves as of Samoan ancestry. There are a number of high-profile Australians with Samoan heritage who compete as professional athletes, especially in netball, rugby and rugby league. Due to the large Samoan diaspora in Australia there are significant church and community organisation links.
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 Samoans 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.
Security for the population generally
In relation to security, a US Department of State report “Samoa 2022 Human Rights Report” notes that:
“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.” It further states “There were no reports the government or its agents committed arbitrary or unlawful killings” and “There were no reports of disappearances by or on behalf of government authorities.”
Arbitrary arrest and detention are prohibited and generally judicial authority is respected and efficient. The constitution allows for freedom of assembly and peaceful association and maintains an effective and well-trained Police force. “Corruption by officials is punishable and the government generally implemented the law effectively. The maximum penalty for corruption is 14 years’ imprisonment. There were isolated reports of government corruption during the year, mostly involving candidates for parliament offering bribes in exchange for votes. Officials infrequently engaged in corrupt practices with impunity”.
Further, as regards policing: “When police received complaints from abused women, authorities generally investigated and charged the offender. Authorities charge domestic violence as common criminal assault, with a maximum penalty of 10 years’ imprisonment. Village councils typically punished domestic-violence offenders only if they considered the abuse extreme, such as when there were visible signs of physical harm. In the past few years, several villages have taken the extra step of incorporating specific fines into their village bylaws”.
A UNHCR report made 11 August 2021 on Samoa notes progress made on policing generally stating:
“Law enforcement officials continue to undertake training for example, Samoa lawyers and Police officers participated in training in 2019 hosted by PILON19 in relation to ‘Quality Evidence without Re-Victimisation: Promoting Special Measures for Vulnerable SGBV Complainants’. MJCA, Police and JAWS20 Media Association have finalised a Court Reporting Guide to recognise the rights of the media in reporting court proceedings and to improve the quality of court reporting to inform the public accurately. The training was helpful for Police and court registrars and in safeguarding the rights of victims (especially children). The NHRI and Police continue to provide Basic Human Rights Education for police recruits; and Human Rights education is covered in the Social Studies Curricula for both Primary and Secondary schools.” [1]
“Training for law enforcement officials included workshops during the visit in 2017 of the Convention against Torture Initiative (CTI). In 2019 police representative attended the CTI Global Seminar on Cooperation and Innovation on criminal investigation and law enforcement practices held in Denmark. Last year (2020), Fiji Police Force partnered with Samoa Police for a five-day training to enhance access to justice for arrested and detained persons, and prevent torture in police custody”. [2]
[1] Par 38
[2] Par 46
Summary

The information reveals that in general, Samoa is suffering an economic downturn following the pandemic. Many citizens rely upon income from abroad for survival.
Country information confirms that many smaller Pacific States including Samoa have been severely impacted by the pandemic and a general downturn in economic activity, and which has impacted employment and social conditions in Samoa and elsewhere. The Tribunal was unable to find information that authorities or the government in Samoa are likely to ill-treat returning citizens who become unemployed and/or homeless, or discriminate against them.
The country has a well-trained and effective Police force which is both responsive and interventionist in crime prevention and protection for the population at large. There is little available evidence of lack of resourcing of government officials as asserted by the applicant or that policing is ineffective and that the applicant and his mother and family would not be protected from claimed ‘mistreatment’ if he sought help.
The Tribunal is satisfied from the available country information that Samoa has efficient and effective State protection available to all Samoans and is adequately resourced to provide State protection from any claimed ‘mistreatment’.
The Tribunal has been unable to find any information which reflects a concern that Samoans who are likely to ‘speak out’ about their social condition will be targeted and subject to threats, harassment or violence and retribution from the State or local authorities or other ‘mistreatment’ such as discrimination.
Findings – Has the applicant met the protection criteria and established a well-founded fear of persecution?
Australia’s protection obligations are focused on individual threats of harm arising from persecution for one of the stated reasons, and which are unrelated to general economic hardship, poverty, unemployment and homelessness, reflecting social problems affecting the entire population and not targeting the applicant personally.
The Tribunal finds on the information from the applicant and his evidence at the hearing that the applicant’s fear of returning to Samoa is not related to one of the 5 circumstances set out in s5J(1) of the Act. The applicant does not have a well-founded fear arising from his race, religion, nationality, membership of a particular social group or political opinion. The applicant’s fear is subjective and due solely to his personal circumstances and fear of unemployment, loss of income and possible homelessness for himself and his mother. It is quite possibly exaggerated. The economic circumstance is a factor unfortunately affecting many thousands of Samoans generally as an aftermath of the pandemic and a general economic slowdown in the country, as reported by DFAT. As to fear of harm from some other source, not identified, the available country information is that Samoa generally has an effective police force and does not discriminate against returnees, who are not harassed or threatened on returning.
The challenge for the applicant personally and socially is to make necessary living adjustments in a country with a very different living standard to Australia, but not to protect himself from any identified well-founded fear from a person or authority who will persecute him for one of the stated reasons, and who would be likely in the foreseeable future to cause him serious harm accordingly.
The Tribunal rejects the applicant’s claims his fear of economic hardship is a reason to establish persecution as it is defined in the Act. Similarly, his claim to be allowed to remain in Australia so as to continue to earn a substantial income is not a refugee reason for protection and does not meet the requirements for him to be a ‘refugee’ at law.
Conclusion
The Tribunal has carefully considered the applicant’s claims as to why he should be granted the visa. The Tribunal finds however, that it is not satisfied there is any evidence that the applicant has a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group or for any political opinion.
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, in respect of persons who may have ‘spoken out’. The Tribunal finds that the applicant’s claims in respect of the family’s circumstances of potential economic insecurity, homelessness, and unemployment are factors affecting the Samoan community and population generally and are not related to the protection criteria in s 5H and 5J of the Act.
The Tribunal finds that the applicant is not a refugee as defined and no evidence has been submitted that meets the requirements for a ‘well-founded’ fear of persecution either by identified individuals, or by a State or local authority as a perpetrator, and where there is no ‘real chance’ of apprehended serious harm to the applicant on his return to anywhere in Samoa he may choose to live.
The Tribunal finds therefore on the information before it that the applicant does not have a well-founded fear of persecution for one of the stated reasons. 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 chance of him suffering serious harm for reason of his race, religion, nationality, membership of a particular social group or for any political opinion he may hold.
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).
Complementary protection
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 finds it is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa), as it is clear on the information available that the applicant can move and live safely anywhere in Samoa that he may choose, and is not prevented from doing so.
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 4763

8 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Remedies