2320003 (Refugee)

2320003 (Refugee) [2024] AATA 2092 (19 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2320003
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Katherine Harvey
DATE:19 February 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 February 2024 at 3:12pm

CATCHWORDS
REFUGEE – protection visa – Samoa – health issues – surgery – applicant’s concern of affording medication and healthcare – severe economic adversity – potential mistreatment – envy from other Samoans – subsidized health care provided by Samoan government – applicant would be able to return to Samoa and live with his family and subsist – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 411(1)(c), 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 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 6 December 2023 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
According to his Protection visa application, the applicant is a citizen of the Independent State of Samoa (Samoa). He is [age] years old and was born in [Samoa]. He claimed that he is Samoan and a Christian. He claimed he speaks, reads and writes Samoan and English. He claimed that he has never married. He provided details of his parents, his two brothers and three sisters. At the hearing, he explained that two sisters live in [Country 1] and the rest of his family live together in his father’s village of [Village 1].
He arrived in Australia [in] September 2021 as the holder of a Temporary Work (International Relations) visa (subclass 403) Pacific Australia Labour Mobility (PALM) stream. He applied for the protection visa on 22 October 2023.
A delegate of the Minister refused to grant the visa on 6 December 2023.
The review application
On 7 December 2023, the applicant applied for a review of that decision.
The Tribunal requested a copy of the delegate’s decision from the applicant by email on 3 January 2024 and by telephone on 9 January 2024.
On 10 January 2024, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the applicant but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 15 February 2024 and to provide all documents he intended to rely on to support his case by 8 February 2024.
On 11 January 2024, the applicant and his cousin contacted the Tribunal and advised that his old email address was not in use. He emailed his new email address to the Tribunal and previously sent emails were forwarded to this address.
On 12 January 2024, the applicant provided the Tribunal with a copy of the delegate’s decision. I am satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 12 February 2024, the Tribunal emailed the applicant requesting him to provide his pre-hearing response.
On 12 February 2024, the applicant provided a hearing response, advised that he had added material to his IMMI account and he also provided:
·two copies of a medical certificate dated 24 June 2022 from Dr [A] stating:
This is to certify that today I have examined [the applicant]. He had his cardiac surgery done in Nov 2021 and is on medications. He is partially fit to work with restriction of not to lift heavy (sic).
·two partial copies of form ‘What happens now?’ about the cardiothoracic surgical waiting list at the [hospital] in Tasmania.
On 12 February 2024, the applicant’s cousin emailed the Tribunal advising that the applicant had appointed a migration agent.
On 13 February 2024, the Tribunal emailed the applicant advising him that he needed to complete the ‘Appointment of representative and/or authorised recipient’ form to appoint a representative or appointment and provided a copy of the form.
On 13 February 2024, the Tribunal called the applicant and, when he did not answer, emailed requesting him to email the documents uploaded to his IMMI account to the Tribunal.
On 14 February 2024, the applicant provided a completed ‘Appointment of representative and/or authorised recipient’ form appointing an authorised recipient.
The applicant appeared before the Tribunal on 15 February 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Samoan and English languages. I am satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on his behalf. Where relevant, the oral evidence given at the hearing is referred to in the analysis below.
The applicant was not represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (DFAT), 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.
I note that DFAT has not prepared a report for protection status determination purposes in relation to Samoa.
Country of reference
The applicant claims that he was born in [Samoa]. He provided a copy of the biodata page of his Samoan passport with his application.
I am satisfied that the applicant is a citizen of Samoa and that Samoa is the receiving country for the purpose of s 36(2)(aa) of the Act.
Summary of claims
The applicant made the following claims in his Protection visa application.
The applicant claimed he left Samoa because its elevated poverty and unemployment rates presented formidable obstacles to establishing a secure future.
He claimed his family faced financial hardship and that employment prospects were non-existent.
He claimed that he did not experience harm in Samoa.
He claimed he did not try to relocate because the economic hardships, pervasive poverty and widespread unemployment afflicted the entire country.
He claimed that if he returned to Samoa he would encounter severe economic adversity. He claimed that his family could not provide him with financial support and the absence of job opportunities and an uncertain future would hinder his personal development and stability.
He claimed he harboured concerns about potential mistreatment from others because of his living conditions, which caused a significant amount of mental stress and anxiety. He claimed the prospect of returning to Samoa presents a notable risk to his fundamental well-being, safety and prosperity.
He claimed he may face harm from fellow Samoans who may feel envy or resentment from a perception of his improved status from living in Australia, which could negatively impact his well-being and mental health.
He claimed that he lacked confidence in the authorities’ ability to protect him because of the country’s limited resources and its capacity to address discrimination, verbal abuse or social exclusion, which are the sources of his apprehension.
He claimed that he could not relocate because the hurdles he faces are prevalent issues that impact the entire nation and relocating would not address the difficulties he is encountering.
With his application he provided a copy of the biodata page of his Samoan passport with an expiry date of [2029].
In his pre-hearing response, the applicant advised:
I have attached documents of my medical surgery when I was working as a Seasonal worker and was away for 6 months because of surgery and I end up no work which I do believe was because of me being away for my surgery. I’ve attached the information on my immi account for your information. I was never getting paid since I was away from work. I fell very ill during at time of work. I was rushed to the hospital and was in and out for about 6 months.
At the hearing, the applicant provided:
·a medical report dated 2 September 2021 from Dr [B] advising that the applicant does not suffer from any medical illnesses and that he is medically cleared to travel to Australia for seasonal employment.
·a police clearance report dated 1 September 2021
·the previously provided medical certificate dated 24 June 2022
·a medical certificate dated 14 February 2024 from Dr [A] stating:
This is to certify that he suffered Acute Rheumatic fever, in September 2021 when was in Tasmania. He suffered Carditis with Aortic valve regurgitation with CHF needing Aortic valve replacement. Since then he is on regular medications for that and needs regular blood tests and 3 weekly injection.
·pay slips dated from [Company 1] for the periods 1–7 November and 8–14 November 2021
·information about an outpatient appointment on 9 December 2021, a pathology invoice dated 17 November 2021, an echocardiogram information sheet and information about the applicant’s [Super] account
·pathology tax invoices dated 15 June, 23 July, 2 August and 20 September 2022
·prescriptions for various medication including:
oPantoprazole EC tablet 40mg dated 14 February 2024
oWarfarin Sodium (Marevan) 5mg dated 14 February 2024
oBenzathine Benzylpenicillin Tetrahydrate injection 1.2 million units; Bisoprolol Fumarate tablet 10 mg and Warfarin Sodium (Marevan) tablet 1 mg dated 14 February 2024
oSacubitril/Valsartan tablet 97.2–102.8mg dated 14 February 2024
oBisoprolol Fumarate tablet 10mg dated 6 December 2022
oMarevan tablet 1mg 50 dated 6 December 2022
oBispro tablets 10mg 28 dated 6 December 2022
oMarevan tablet 3mg 50; Marevan tablet 5mg 50 and Marevan tablet 1mg 50 dated 14 October 2022
oEntresto tablets (a.k.a. Sacubitril/Valsartan tablet) 97.2–102.8mg dated 14 October 2022
oSalpraz tabs EC 40mg (a.k.a. Pantoprazole APOTEX) dated 31 August 2022
oBisoprolol Fumarate tablet 10mg dated 31 August 2022
oWarfarin 1mg 50 dated 31 August 2022
oPantoprazole EC tablet 40 dated 31 August 2022
oPanafcortelone tablets 5mg 29 November 2021.
·a medication list dated 29 November 2021 and a medication summary dated 10 March 2022
·a tax invoice from [named] Hospital dated 16 June 2023 for a day visit on 12 June 2023, and
·a tax receipt from [a pharmacy] for Bicillin L-A 1.2 million units dated 24 June 2023
Analysis, findings and reasons
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if he is owed complementary protection, or if he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, I have concluded that the decision under review should be affirmed.
At the hearing, the applicant claimed that he did not want to return to Samoa because he wanted to be able to financially support his family and he was concerned they would not be able to help him pay for his regular medication as they have a low income. He was also concerned that the medical treatment he would receive in Samoa would not be the same as that in Australia.
Medical treatment
The applicant claims, and I accept, that he had aortic valve replacement surgery in Tasmania in November 2021 and that he has an ongoing need for medication. At the hearing the applicant claimed, and I accept, that he does not need any treatment other than the medication he takes, which is tablets and an injection every three weeks.
At the hearing, the applicant said that he was concerned that his family would not be able to help him pay for his medication. He claimed that no one in his family is working. He clarified that his father and brother are farming his father’s taro plantation and growing fruit, vegetables and taro to sell at the market and that his mother helps sell the goods at the market. He said his family only gets about $100 income from the fruit and vegetables. He also explained that his uncle in [Country 1] had adopted two of his sisters and they live in [Country 1] where the older one is working and the younger one is at school.
The applicant said that he had asked his family to find out the cost of his medication in Samoa. He said his family went to the chemist and the hospital and asked how much the medication costs. He said some of the medication costs ‘about $30 or $50’ and ‘the injection is like $100’, so they really cannot afford the medication there. The applicant said that they were only asking and he did not have any further evidence to submit.
As discussed at the hearing, the Samoan government heavily subsidises health care, provides fee-free medical care for people with chronic illnesses and the Government Overseas Medical Treatment Scheme (OVT) supports:
the costs of treatment in New Zealand and Indian private hospitals for Samoan-based patients with life-threatening medical conditions but with a good prognosis for recovery. This is fully funded by the government including travel and hospital visits.[1]
[1] ‘Samoa’s Second Voluntary National Review on the implementation of the Sustainable Development Goals’, SDG Taskforce, Government of Samoa (2020) 33 [63] on United Nations Sustainable Development Goals Knowledge Platform 20210504142624.
The applicant said he was not aware of that assistance from the government of Samoa and his question is whether his family will be able to help with his medication which he will need to take for the rest of his life. He said that is his concern about his medical issue.
When asked if anyone would deny him medical treatment in Samoa, the applicant said no. When asked if he would be treated differently to anybody else with a heart condition in Samoa, the applicant said he was worried about that. He said that he was concerned about the difference between doctors in Australia and in Samoa and he is worried that something might happen to his heart over there. We discussed that the medical treatment may be better in Australia, but the issue was whether he would be treated differently to other people in Samoa. The applicant said he would receive the same treatment, but his condition might be different to other people’s conditions. He agreed that the two statements that ‘no one would deny him medical treatment’ and ‘no one would treat him differently’ were true.
I give greater weight to the country information about the Samoan government’s support for health care, including for people with chronic conditions like that of the applicant. I do not accept that depriving the applicant of his present access to medical treatment in Australia amounts to serious harm or significant harm.[2] Based on the evidence of the applicant and the country information, I do not accept that there is a real chance that the applicant would experience serious harm or a real risk that he would suffer significant harm because of his medical treatment or access to medication if he returned to Samoa now or in the reasonably foreseeable future.
Economic wellbeing
[2] SZDCD v MIBP [2019] FCA 326 at [48].
The applicant is very strongly motivated to improve the economic conditions of his family, which was why he came to Australia. He said that people looked down on his family in Samoa because they were poor. He said his aim and hope is to be able to ‘upgrade’ and increase his family’s stability and future.
When asked if anyone had ever done anything to hurt his family, the applicant said that nothing has happened and no one has hurt the family. He said the only thing is that they hear stories and people who look down on them.
At the hearing, the applicant explained that after he completed year [grade], he worked [at] [Business 1]. In Australia he worked picking [fruit] in Tasmania before his heart condition and operation. The applicant claims, and I accept, that after his operation and recuperation he lost contact with his Australian employer.
At the hearing, we discussed the third Samoa Labour Force and Child Labour Survey Report for 2022 that showed a drop in the unemployment rate from 14.5 per cent in 2017 to 5.0 per cent in 2022 and that there were 2,825 people unemployed in 2022. When asked if there was any reason that he would not be able to be employed in Samoa, the applicant said he had a little bit of worry about finding a job because someone else now has his previous job at [Business 1] and he does not know if he is able to apply for any job in Samoa.
Noting the medical certificate from 24 June 2022 from Dr [A], I accept that the applicant is fit for work with a restriction on heavy lifting. Based on the country information and the applicant’s previous employment in Samoa, I do not accept that the applicant would be unable to apply for a job or find employment in Samoa.

At the hearing, we discussed the country information that says:
It is also important to note that in the Samoan culture, the strong sense of community through extended families, the church and village communities has always and continues to provide a safety net for the vulnerable. In this way, there is the belief and practice that no one goes hungry or become homeless because every community will take care of all its members. …every Samoan can count on family and community for their basic needs in terms of food, shelter and clothes.[3]
[3] ‘Samoa’s Second Voluntary National Review on the implementation of the Sustainable Development Goals’, SDG Taskforce, Government of Samoa (2020) 34 [65] on United Nations Sustainable Development Goals Knowledge Platform 20210504142624.
The applicant said that was all true and that he agreed that he could get help or assistance from the community for food, shelter and other things. He said they are also getting food from the plantation. His concern remained getting money from a good job to help out with the family.
As discussed at the hearing, based on his evidence, the applicant would be able to return to Samoa and live with his family and subsist. He reiterated that his concern is that his family is poor and may not be able to help with his medication and that his hope is to upgrade and increase the stability of and improve the future of his family. Based on the applicant’s evidence, I do not accept that his family being looked down upon by other members of the community amounts to serious harm or significant harm. Based on the applicant’s evidence and the country information, I do not accept that there is a real chance that the applicant will experience serious harm or a real risk that he will suffer significant harm because of his economic situation if he returns to Samoa now or in the reasonably foreseeable future.
Mental health
The applicant said that if he is able to do something good for his family – by being in Australia and working – it would make him happy and put his mind at ease.
The applicant said that he really did not want to go back to his old life in Samoa with no income and being poor and not having the money to do something better. He wants to stay in Australia and work hard to help his family. As discussed with the applicant, he had told the Tribunal that he would not suffer serious harm or significant harm in Samoa. The applicant explained he does not want to go back home and it will really affect him if he goes home and is not able to fulfill his dream for his family and he is worried that it might affect his mind, and that is why he is asking for the Protection visa.
As discussed at the hearing, the applicant has never spoken to a doctor about his mental health. He said he did not raise any mental health issue with his doctor and they did not talk about any mental health issue. He said the only thing that he is thinking about in his mind is the improvement of his family. When asked whether anyone would deny him treatment if he experienced a mental health issue in Samoa, the applicant said no. When asked if he would be treated differently to anybody else who had a mental health issue, the applicant said no.
When it was discussed with the applicant that he did not claim to have experienced mental health issues in the past and, if they should arise in the future, he would get the same health treatment as anyone else in Samoa, the applicant said that he did not want to have a mental health problem later brought on because he wants to stay in Australia and to help his family and to be able to afford his medication. He said that was his concern.
Based on the information before me, I do not accept that the applicant has had or currently has an issue with his mental health. I accept that the applicant would prefer to stay in Australia however I do not accept that there is a real chance that the applicant will experience serious harm or a real risk that he will suffer significant harm because of his mental health if he returned to Samoa now or in the reasonably foreseeable future.
Other claims
In his application, the applicant made a number of claims that he did not raise at the hearing. When they were put to him, all of the claims revolved around him supporting the economic improvement of his family by working in Australia and his concerns if he was not able to do this.
When asked about his claim that the absence of job opportunities and an uncertain future would hinder his personal development, the applicant explained that his main hope is to use his endeavours to improve himself, get the medications and to help his family.
When asked what he meant by harbouring concerns about potential mistreatment from others because of his living conditions, which caused significant mental stress and anxiety, the applicant said he is trying to improve himself by staying and working in Australia and helping to ‘upgrade’ his family by helping to build a new house and buy a new car, so that he will not be discouraged by what people say about his family or by them looking down on his family.
When asked about his claim that he may face harm from fellow Samoans who may feel envy or resentment from a perception of his improved status from living in Australia, which could negatively impact his well-being and mental health, the applicant said that is the reason he is really working hard on trying to upgrade his family with a new house and a new car, so that people can see what he has done and they will not look down on his family.
When asked about his claim that he lacked confidence in the authorities’ ability to protect him because of their limited resources and capacity to address discrimination, verbal abuse or social exclusion, the applicant said that he is only concerned about improving his life and his future and improving his family. When asked if he had ever experienced discrimination, verbal abuse or social exclusion, the applicant said no.
Having earlier considered and made findings on claims about the applicant’s economic wellbeing and mental health, I considered these other claims relating to his treatment by fellow Samoans, the community or the authorities. The applicant did not provide evidence that external actors will seek to inflict serious harm or significant harm on him. Based on his evidence, I do not accept that the applicant will experience serious harm or suffer significant harm if he returns to Samoa now or in the reasonably foreseeable future because of treatment by fellow Samoans, the community or the authorities’ ability to protect him.
Does the applicant meet the refugee criterion?
In his application and at the hearing, the applicant made no claims that he would experience serious harm for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion.
Having considered the claims singularly and on a cumulative basis, I am not satisfied that if the applicant returns to Samoa now or in the reasonably foreseeable future that he faces a real chance of persecution for a refugee nexus reason.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[4]
[4] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Based on the evidence before me, I find that there is no real chance that the applicant will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. I find that the applicant does not have a well-founded fear of persecution because he does not have a subjective fear of persecution and there is no real chance that he will be persecuted. As the applicant does not have a well-founded fear of persecution, I find that he is not a refugee within the meaning of s 5H of the Act.
Does the applicant meet the complementary protection criterion?
Having found that the applicant does not meet the refugee criterion in s 36(2)(a). I considered the alternative criterion in s 36(2)(aa).
I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Samoa, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor am I satisfied that I have substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. I am not satisfied that I have substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. Therefore, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations. The applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. 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.
Katherine Harvey
Senior 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.
…

[2024] AATA 2092

19 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing