2319377 (Refugee)

2319377 (Refugee) [2024] AATA 1280 (14 February 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:  2319377
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Kate Chapple
DATE:14 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

Statement made on 14 February 2024 at 12:33pm
CATCHWORDS
REFUGEE – protection visa – Samoa – original claim on economic grounds – late claim as member of particular social group – homosexual woman – role in village as oldest daughter of chief and through occupation – recent relationship in Australia – friend assisted with application, applicant hesitant to reveal sexuality and no adverse inference drawn – limited or undetailed country information – no recognition of LGBTQI+ individuals or prohibition of discrimination – traditional and conservative society with complex cultural code – applicant’s personal circumstances take her outside general situation of limited or no discrimination or harm – real chance of discrimination – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 423A, 424A
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.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application lodged 16 October 2023.
The applicant’s written protection claims (spelling and grammatical errors not corrected):
2.1.[reason applicant left Samoa] I left Samoa for Australia seeking better economic opportunities due to the poverty and unemployment prevalent in Samoa. If I were to return, these challenges would limit my ability to support my [child] and myself. Therefore, I am seeking a protection visa in Australia to ensure a more stable and secure future, with the intention of making a positive contribution to the Australian community.
2.2.[harm experienced by applicant in Samoa] No.
2.3.[reason applicant didn’t try to move elsewhere in Samoa to seek help] I did not attempt to move to another part of Samoa because relocating within the country would not have significantly improved my situation. The challenges of poverty, unemployment, and the inability to return to my family home were pervasive across Samoa, making it impractical to seek safety or a better life within the country itself.
2.4.[what applicant thinks will happen to her if she returns to Samoa] If I were to return to Samoa, I believe that I would face severe challenges and risks. I anticipate a life marked by ongoing poverty, unemployment, and the inability to secure basic sustenance and safety. Furthermore, I have concerns about potential mistreatment and abuse from fellow Samoans due to my changed living conditions. Overall, I fear a decline in my quality of life, well-being, and my ability to provide for my [child] and [their] well-being if I were to return to Samoa.
2.5.[harm or mistreatment to applicant if she returns to Samoa] If I were to return to Samoa, I am deeply concerned about the potential for harm and mistreatment. Given my changed living conditions and the challenges I’ve faced, I fear that I might experience social stigmatization and abuse from fellow Samoans. This mistreatment could take various forms, including verbal harassment, discrimination, or even physical harm. I believe that these acts of harm and mistreatment could be perpetrated by local community members who may not understand the difficulties I’ve encountered or may hold biases against individuals who have left Samoa for opportunities abroad. These potential acts of harm and mistreatment could result from ignorance, prejudice, or a lack of empathy toward my situation, making it even more challenging for me to reintegrate into my community and ensure my and my [child]’s well-being.
2.6.[reason applicant thinks Samoan authorities could not or would not protect her] I do not believe that the authorities in Samoa can or will provide me with adequate protection if I were to return. My lack of faith in the authorities is rooted in the understanding that Samoa faces various challenges, including limited resources, which could restrict their ability to offer sufficient protection or support for individuals in my situation. Moreover, having worked for the government in Samoa, I know firsthand that there are no real forms of help or support I can rely on from the authorities. Additionally, there might be concerns about the authorities’ willingness or capacity to address individual cases, given the broader societal issues like widespread poverty and unemployment. My perception is based on the prevailing conditions in Samoa, making it difficult to rely on governmental assistance and protection, especially in my unique circumstances.
2.7.[reason applicant thinks she can’t relocate elsewhere in Samoa] I do not believe that relocating within Samoa would provide me with a safe environment. This is because the challenges I face, such as poverty and unemployment, are pervasive throughout the country. These difficulties are not limited to a specific area or region, and thus, relocating within Samoa would not offer a solution to the challenges I am confronting. My understanding is based on the realization that my problems are not unique to a particular location but are part of broader societal issues in Samoa.
Decision record dated 28 November 2023 relating to the delegate’s refusal decision.
Departmental records relating to the applicant.
Application for review
Application for review lodged 28 November 2023.
The Tribunal emailed the applicant on 1 December 2023 requesting that she provide a copy of the delegate’s decision record. The Tribunal notes that no response was received from the applicant.
The Tribunal emailed the applicant on 10 January 2024 attaching a letter of the same date addressed to the applicant formally inviting her pursuant to s 424A of the Act to comment on or respond to certain information contained in the delegate’s decision record, a copy of which was enclosed. The letter stipulated that the applicant’s comments or response be received by 24 January 2024; and that if the applicant wished to request an extension of time, the request must be received by 24 January 2024.
At the applicant’s request, the Tribunal granted an extension of time for the applicant’s response to the s 424A letter to 2 February 2024.
On 29 January 2024, the applicant emailed the following statement (with photographs attached) in response to the s 424A letter (spelling and grammatical errors not corrected):
First of all, I would like to thank you for the opportunity which was given to me by your department to comment about some of the reasons why the department of Immigration have refused my claim for the Protection Visa.
For quite some time, I have been hesitant to share more about my family back home and my life since coming to this place. My love life has been a complex matter since I arrived, and I have been afraid to open up because it is considered forbidden and taboo in our community for two girls to be in a relationship.
However, I can no longer hide this secret, and I feel that it is necessary to inform your department. If my partner and I are caught, we risk being banned from our village, and so we believe it’s best to come clean and let your department know as I we do believe harsh punishment is waiting for both of us to face.
We have been keeping this news from our parents for a while now, and the thought of them finding out is devastating. Even when we submitted our application, we couldn’t help but worry. However, we can’t continue to wait in fear of their reaction. Going home knowing we have done something they don’t approve of is not an option. Adding to this, my family background and images below shows that I come from a less privileged home, and I’m not sure how I will handle this situation.
I hereby, humble requesting your authority to please review my case with my partner as we both are willing to do whatever it takes to abide by the law of this country but to stay here and work to support each other.
The Tribunal wrote to the applicant inviting her to attend a video hearing on 13 February 2024 and to provide pre-hearing submissions.
Prior to the hearing, the applicant provided to the Tribunal confirmation that she intended to participate in the hearing with the assistance of an interpreter. The applicant did not provide any further submissions.
Hearing
The applicant appeared before the Tribunal at a hearing conducted in via video on 13 February 2024, with the assistance of an interpreter (in person) in the Samoan and English languages. The applicant was unrepresented.
The applicant gave evidence, summarised by the Tribunal as follows:
13.1.The applicant was born in [year] in a village in [Samoa] where she grew up with her grandmother and great grandmother on her father’s side. Her mother left when she was two weeks old. She remained there until she turned 18 when she went to live with her father and [younger sisters]. The applicant’s father, now aged [age], is a farmer and has his own plantation in Samoa; her sisters live and work on the plantation, go to school, and help care for her [age]-year-old [child] who she adopted in [year] from [a woman she knew].
13.2.The applicant completed ten years of schooling in Samoa. She left school in [year] and enrolled in [a course] at university. She couldn’t continue with her study because her grandmother couldn’t afford the fees. She took a [specified] job for two years then joined [Employer 1] in 2018 where she [worked] for five years before coming to Australia. The applicant is the eldest child and was the only family member in employment. She felt a heavy responsibility to earn and provide for the family, care for her [child], and discharge her role as the daughter of the village high chief, her father. Even though she worked as [an Occupation 1], there was never enough income to support her family; caring and providing was very difficult in addition to overseeing and enforcing the safety and affairs of the women in the village and ensuring that cultural and church rules were upheld.
13.3.The applicant realised her sexuality at [age]. She hid her sexuality from her family and her [work] colleagues; she was aware of the strict laws, and she knew it would bring her father and family into disrepute, and it wouldn’t be tolerated in [the workplace]. She never had any relationships whilst in Samoa. Her father is a very violent and physically abusive man, as are his brothers. Since returning to live with her father at [age], he often beat her severely with sticks to right wrongs she had committed. She suffered this punishment more so as the eldest child. Her father told her that this was his way of teaching and showing his love for her.
13.4.The applicant came to Australia in 2018 and 2019 on [Australian government]-sponsored programs associated with her [role] in Samoa.
13.5.The applicant decided to join the seasonal worker program in Australia as it was an opportunity to earn more money to support her family in Samoa. She came to Australia with her team in April 2023 on a nine-month [visa]. Her [child] remained in Samoa with her father and siblings. Despite her father’s physical abuse towards her, she believes her [child] is being well cared for; [being] the only grandchild.
13.6.The applicant worked for nine months packing fruit as part of the seasonal worker program. After discussing her situation with a friend she worked with, her friend suggested she apply for a protection visa and helped her with the application. She was shy about being open about her sexuality, which is the reason her application refers to concerns about potential mistreatment and abuse from fellow Samoans due to her changed living conditions. When she got the refusal from the Department, and applied for review, she realised she needed to be more open, so provided the further statement detailing her sexuality and her fears about returning to Samoa.
13.7.The applicant met her female partner on 21 May 2023, and they have been in a relationship since.
13.8.The applicant is in regular contact with her family on [social media]. They don’t know she has applied for protection; they believe she has applied for a visa to stay and work. They’re happy that she is here earning money to support the family, and not currently expecting her to return. She can’t tell them about her sexuality and relationship. She doesn’t know how long it will take her to tell them.
13.9.The applicant can’t return to Samoa and have her sexuality and relationship known. As a former [Occupation 1] and the daughter of the village high chief overseeing the safety and affairs of the women in the village and ensuring that cultural and church rules were upheld, this would bring enormous shame for her father. It is likely that her father and his brothers would physically abuse her for bringing such shame. There is also a very real chance that her father would be removed from the village for the shame she would bring. She is also aware of the strict workplace rules and knows there would be serious consequences for her returning to [Employer 1], including going to jail. Prisoners hate [Occupation 1s], they would recognise her face from when she last [worked]; she knows what goes on in jails, some people suicide, she doesn’t want to end up there and not be able to support her family. She doesn’t want her family to suffer.
Country information
While same-sex sexual relations between men are illegal in Samoa, the authorities do not enforce these provisions.¹ ‘Sodomy’ between men is punishable by up to five year’s imprisonment, with ‘attempts to commit’ sodomy also subject to the same punishment. The law prohibits the renting, leasing, occupying or managing of any premises used for the commission of ‘indecent acts’ between men, with a maximum penalty of seven years’ imprisonment.² Only men are criminalised under this law.³ In 2013, ‘indecent acts’ between males was decriminalised.⁴
Gender recognition is not legally recognised.⁵ Samoan law does not prohibit discrimination based on sexual orientation, gender identity or expression, or sex characteristics; nor does it recognize LGBTQI+ individuals, couples, and their families. There are no hate crime or antigay propaganda laws, nor are there criminal justice mechanisms to aid in the prosecution of bias-motivated crimes against members of the LGBTQI+ community.⁶ Same-sex marriages are illegal.⁷
1 'Country Reports on Human Rights Practices for 2022 - Samoa', US Department of State, 20 March 2023, p.11, 20230322102735; ‘Samoa’, Human Dignity Trust, undated, accessed 5 October 2023
2 'Country Reports on Human Rights Practices for 2022 - Samoa', US Department of State, 20 March 2023, p.11; 'LGBT+ rights and issues in Pacific islands', John Curtis, Anna Dickson, Eleanor Gadd, Tim Robinson, House of Commons Library, 21 March 2022, p.9
3 ‘Samoa’, Human Dignity Trust, undated, accessed 5 October 2023
4 'LGBT+ rights and issues in Pacific islands', John Curtis, Anna Dickson, Eleanor Gadd, Tim Robinson, House of Commons Library, 21 March 2022, p.9
5 'Country Reports on Human Rights Practices for 2022 - Samoa', US Department of State, 20 March 2023, p.12
6 'Country Reports on Human Rights Practices for 2022 - Samoa', US Department of State, 20 March 2023, p.12, 7 ‘Samoa’, Human Dignity Trust, undated, accessed 5 October 2023
Samoa is a very religious country, with most of the population identifying as Christian (97 per cent).⁸ Samoan society is generally considered conservative and traditional.⁹ The SFA notes that within this context, same-sex relationships and gender diverse people are to an extent linked with sodomy, and religious arguments are invoked to limit progressive discussion of LGBTIQ+ issues.¹⁰ In May 2022, Samoa’s largest Christian church, the Congregational Christian Church Samoa (CCCS) wrote to the government asking that it refrain from discussing same-sex marriage and transgender issues.¹¹
8 ‘World Factbook: Samoa’, United States Central Intelligence Agency, 25 September 2023
9 'LGBT+ rights and issues in Pacific islands', John Curtis, Anna Dickson, Eleanor Gadd, Tim Robinson, House of Commons Library, 21 March 2022, p.10
10 ‘Universal periodic review of Samoa 29th working group session: Report submitted by Samoa Fa’afafine Association’, Samoa Fa’afafine Association, 12 November 2021
11 ‘Same sex marriage will not happen in a Christian nation’, Samoa Observer, 25 May 2023
The Cultural Atlas is a collaboration between SBS, International Education Services, and Multicultural NSW, aims to inform and educate the public in cross-cultural attitudes, practices, norms, behaviours and communications. The following is an extract from ‘Samoan Culture’ published on the website in 2017:
Fa’a Samoa
The term ‘fa’a Samoa’ translates into English as ‘the Samoan Way’. Fa’a Samoa refers to a complex cultural code that guides and teaches individuals on how to lead their life. Samoan culture is governed by various protocols and etiquette, all in accordance with core values within fa’a Samoa such as family, language, the environment, genealogy, the arts (including tattooing) and political and social structures. Although some Samoan values and customs have changed since the country came into contact with Europe, Samoans continue to strive to preserve fa’a Samoa. For example, Christian values and beliefs that were brought to the island in the 19th century have been integrated into fa’a Samoa. Adhering to fa’a Samoa brings a sense of pride and respect as well as social cohesion within the Samoan community.
Fa’a Samoa is holistic, meaning that Samoan culture is often understood as encompassing nearly all facets of life. For many, adhering to fa’a Samoa is closely associated with honouring one’s family. Genealogies and legends are often passed down and elaborated through the generations. The sharing of one’s ancestry is important to many, as Samoans often perceive their identity through their family and genealogies. The way in which one honours their family varies depending on their relationship and status with others. For example, Samoans abroad will often send remittances to family members in Samoa as a way to maintain family connections and respect for one another.
Social Structure and Matai
Samoan society is based on a collectivist system of governance known as ‘fa’a Matai’. In this system, society is organised by extended families (aiga), with each family having its own ‘Matai’ (‘chief’ or ‘leader’) titles that are connected to certain districts, villages and plots of family land. Individuals in the aiga are expected to be generous with their possessions and prioritise the interests of the group or community over their own. For example, people tend to be communal and share their goods rather than prizing their individual ownership. Matai are responsible for administrative duties and maintaining traditions and customs of the village. Matai are also seen as spiritual caretakers of all those who fall under their authority. The status of Matai is highly respected among the community.
Generally, there are two types of Matai, each with different duties. The first is the high chief of the country, village or family – known as the Ali’i. The Ali’i are often understood as ‘sitting chiefs’ because they are typically responsible for the most important aspects of Samoan culture and are generally the decision-makers. The second type of matai are the Tulafale, the talking chiefs, who usually fulfil the many oral traditions and duties within fa’a Samoa. The Tulafale are often known as the mouthpieces of the Ali’i and are expected to be skilled in the art of lauga (oration).
A Samoan becomes the Matai of a village through the complex and sophisticated hierarchical Matai system, which includes an election by consensus. While the nuances of the Matai system are difficult to articulate, the title of Matai is generally passed down from parent to child or given based on the view that the recipient will best serve the family or village. The Matai was traditionally male, but nowadays women can gain leadership status. Closely related to the role of the Ali’i is the Taupou. To be a Taupou, the woman is generally connected to the family or village by blood and is the daughter of an Ali’i.
The role of a Matai is based on one’s ability to serve those around them rather than seek prestige. Matai are expected to ensure the family or village is self-sufficient and well-nourished, as well as maintaining social order among all members. Indeed, Samoan society tends to be meritocratic, whereby those with a recognised ability are often elected to the leadership of families and villages. Matai tend to gain status and influence through accumulating resources as well as their ability to mobilise and redistribute them. Since the introduction of a cash economy following contact with Europeans, the power of Matai has been reduced. Nonetheless, the fa’a Matai system persists as an integral part of fa’a Samoa.

The DFAT country brief for Samoa provides (inter alia) that:
17.1.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.
17.2.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 evidence is a truthful account of her life and experiences in Samoa and Australia.
The Tribunal accepts the applicant’s father is a longstanding high chief of the family’s home village in Samoa and that the applicant—as the eldest child, the only member of the family in employment, and the mother of a [child], the only grandchild—was expected to uphold and respect her father’s position, financially support the family, and discharge significant responsibilities to the women of the village in overseeing and enforcing their safety and affairs and ensuring that cultural and church rules were upheld.
The Tribunal accepts the applicant was routinely subjected to her father’s physical abuse since she returned to live with him at [age]. The Tribunal considers that the physical abuse was the father’s means of asserting his authority over the applicant, ensuring that she met the standards required of her as the eldest child, and teaching and disciplining her when she did not.
The Tribunal accepts the applicant was [an Occupation 1] in Samoa for five years.
The Tribunal considers that the applicant’s responsibilities to her father, [child] and family, church and village and her role as [an Occupation 1] gave her a heightened sense of social and cultural values, attitudes and norms in Samoa, and the range of tolerance for certain behaviours. One example: the applicant accepts that her father’s physical abuse was his way of showing his love for her and is therefore not concerned for the safety of her own [child] who is in the care of her father and younger sisters. Another example: the applicant is aware of the strict and adverse views held by her father and family, the church and village, and [Employer 1] about same-sex relationships.
The Tribunal accepts the reference in the protection visa application to concerns about potential mistreatment and abuse from fellow Samoans due to her changed living conditions is a reference to the applicant’s sexuality and same-sex relationship. The Tribunal further accepts the applicant was unable at the time to properly articulate her claims relating to her sexuality and same-sex relationship.
The Tribunal does not consider the claims made in the applicant’s statement in response to the Tribunal’s s 424A letter new claims such as to invoke the provisions of s 423A of the Act.
The Tribunal accepts the applicant is gay and she became aware of her sexuality at [age].
The Tribunal accepts that since the applicant became aware of her sexuality, and while living in Samoa, she did not have intimate relationships, and felt she could not have intimate relationships for fear of the consequences if her sexuality became known by her father and family, the church and village, and [Employer 1].
The Tribunal accepts the applicant is in a same-sex relationship in Australia. The Tribunal notes the applicant’s partner was present as a support person throughout the video hearing.
The Tribunal accepts the applicant has not yet told her father and family or any other person in Samoa about her sexuality and same-sex relationship.
The Tribunal accepts the applicant genuinely fears that, if she returns to Samoa, she would be at risk of physical abuse by her father and his brothers; she would cause shame to her father, family, church and village; her father would be removed from his position as village high chief; she would not be able to return to [Employer 1]; and she would be targeted by [her former employer] and imprisoned by reason of her sexuality and same-sex relationship.
The Tribunal considers that if the applicant returns to Samoa, it is likely she would be accompanied by her partner. The applicant considers further that even if the applicant were not accompanied by her partner, it is possible she would not hide her sexuality; and if she did hide her sexuality, the reason would be due to her genuine fears.
The Tribunal notes the country information reports that:
34.1.Samoan society is generally considered to be conservative and traditional, with most of the population identifying as Christian, and religious arguments are invoked to limit progressive discussion of LGBTIQ+ issues.
34.2.Same-sex relations between men are illegal under Samoan law, with sodomy and attempts to commit sodomy punishable by up to five years’ imprisonment, although authorities do not enforce these provisions; and that only men are criminalised, not women.
34.3.Samoan law does not prohibit discrimination based on sexual orientation, does not recognise LGBTIQ+ individuals, spouses and their families, and makes same-sex marriages illegal.
The Tribunal considers that LGBTIQ+ people are a particular social group in Samoa, and the applicant, as a gay Samoan woman, would be a member of that group if she returns to Samoa.
The Tribunal considers the country information regarding gay women and gay women in same-sex relationships in Samoa limited or lacking in detail about official and societal discrimination and harm. The Tribunal further considers there is a risk the limited or lack of detail may suggest or infer limited or no official and/or social discrimination and harm.
The Tribunal notes the following passage from A Guide to Refugee Law in Australia at 3-14 to 3-15:
While it is clearly permissible to assess whether an applicant’s fear is well-founded by reference to general information about people in a similar position to the applicant,[1] great care is needed in doing so. When considering how persons like the applicant have been or are being treated, the critical question is ‘how similar are the cases that are being compared’.[2] In Appellant S395/2002 v MIMA, McHugh & Kirby JJ explained that:
It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group.[3]
Thus, while it will usually be necessary to classify an applicant or his or her claims for the purpose of identifying the Convention reason for which he or she may face persecution, it is important that the categorisation is according to a feature of the applicant that makes him or her distinguishable from other persons, and that the potential persecutors also make that distinction.[4] In addition, where the evidence is that persons of a particular group ‘generally’ are or are not persecuted, it would be wrong to draw a conclusion about whether a particular applicant will be persecuted without paying close attention to the effect of the qualification provided by the word ‘generally’. The question is whether there is anything in the applicant’s circumstances to take him or her outside the ‘general’ situation.[5]
[1]     See Applicant NABD of 2002 v MIMIA [2005] FCA 29 at [8].
[2]     Appellant S395/2002 v MIMIA; Appellant S396/2002 v MIMIA (2003) 216 CLR 473 at [75]; Applicant NABD of 2002 v MIMIA [2005] FCA 29 at [161].
[3]     Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [58]. Similarly, in MIMA v S152/2003 (2004) 222 CLR 1, McHugh J explained at [82] that in determining whether an asylum seeker has a well-founded fear of persecution, the decision maker usually needs to know a good deal more than that other persons holding similar beliefs, opinions or membership of races, nationality or particular social groups have been persecuted. It will ordinarily be necessary to know whether the circumstances of those persons were similar in all material respects to those the asylum seeker is likely to face. Only then will the experience of other members of the relevant category throw light on whether there is a real chance that the asylum seeker will be persecuted.
[4]     Applicant NABD of 2002 v MIMIA [2005] FCA 29 at [35].
[5]     Applicant NABD of 2002 v MIMIA [2005] FCA 29 at [35].
The Tribunal considers it is appropriate that the applicant’s evidence of her personal circumstances, experiences and fears takes precedence over the country information and takes the applicant outside any general situation of limited or no official and/or social discrimination and harm that may be suggested or inferred from the country information.
The Tribunal considers that if the applicant returns to Samoa, she faces a real and not remote chance of physical abuse by her father and his brothers for the shame that she would cause to her father, family, church and village by reason of her sexuality and same-sex relationship.
The Tribunal considers that if the applicant returns to Samoa, she faces a real and not remote chance that, as a result of the shame the applicant would cause to her father, family, church and village by reason of her sexuality and same-sex relationship, the applicant would be rejected by her father and unable to return to the family home and plantation, and unable to access the means to subsist.
The Tribunal considers that if the applicant returns to Samoa, she faces a real and not remote chance of being discriminated against by [her former employer]—that is, excluded from [the workplace] and/or targeted by former [colleagues] and unable to earn a livelihood—by reason of her sexuality and same-sex relationship.
The Tribunal considers that given the position of the applicant’s father as village high chief and the applicant’s former responsibilities to her father, [child] and family, church and village and her former role as [an Occupation 1], and given the nature of Samoan culture as outlined in the country information, the real and not remote chances described in the preceding paragraphs apply to all areas of Samoa and are not lessened by the applicant relocating elsewhere in Samoa.
The Tribunal considers that in these circumstances neither the applicant’s family nor the police is a source of protection for the applicant.
The Tribunal considers that the applicant is motivated to stay in Australia to continue working and earning money to support her family in Samoa and to remain in her relationship with her female partner, however it is the real and remote chances described in the preceding paragraphs that are the primary reasons for her unwillingness to return to Samoa.
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:
46.1.The applicant is a citizen of Samoa and a non-citizen in Australia.
46.2.The applicant is a member of a particular social group being a gay Samoan woman.
46.3.The applicant fears being persecuted in Samoa for the essential and significant reason of her membership of the particular social group and her related personal circumstances and experiences.
46.4.There is a real chance that, if the applicant returns to Samoa, she would be persecuted for the essential and significant reason of her membership of the particular social group and her related personal circumstances and experiences.
46.5.The persecution would involve serious harm to the applicant.
46.6.The real chance of persecution relates to all areas of Samoa.
46.7.There are no effective protection measures available to the applicant in Samoa.
46.8.The applicant could not take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in Samoa.
46.9.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.
46.10.The applicant is outside Samoa, her country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself of the protection of Samoa.
CONCLUSION
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Kate Chapple
Member

ATTACHMENT 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.

[2024] AATA 1280

14 February 2024

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