2319377 (Refugee)

This case concerned an application for a protection visa by a woman from Samoa. The applicant's original claim for a visa was based on economic grounds. However, she later amended her claim to assert membership in a particular social group, specifically identifying as a homosexual woman. The dispute centred on whether she had a well-founded fear of persecution in Samoa due to her sexual orientation and her role within her village.

The court was required to determine if the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Specifically, the court had to assess whether the applicant's personal circumstances, including her identity as a homosexual woman and her familial and community roles, placed her at a real chance of persecution in Samoa, despite general country information suggesting limited or no explicit prohibition of discrimination against LGBTQI+ individuals.

The court considered the applicant's evidence to be a truthful account of her life and experiences. It accepted that she held significant responsibilities within her village as the eldest daughter of a chief, including financial support for her family and oversight of village women's safety and affairs. The court also accepted that she had been subjected to physical abuse by her father, who used this as a means of asserting authority and enforcing her compliance with expected standards. While the DFAT country brief indicated Samoa's participation in labour schemes and the importance of remittances, it also noted the economy's impact from COVID-19 and a slower tourism rebound. Crucially, the country information provided limited detail regarding the recognition of LGBTQI+ individuals or prohibitions on discrimination. The court found that the applicant's personal circumstances, particularly her role and the abuse she experienced, took her outside the general situation described in the country information, creating a real chance of discrimination.

The Tribunal was satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. The matter was remitted for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.