2320847 (Refugee)

[2024] AATA 1814

2320847 (Refugee) [2024] AATA 1814 (22 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2320847

COUNTRY OF REFERENCE:                   Samoa

MEMBER:Wayne Pennell

DATE:22 March 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 March 2024 at 6:02pm

CATCHWORDS

REFUGEE – protection visa – Samoa – no Convention nexus – economic conditions – employment – mistreatment for living abroad – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 425, 499
Migration Regulations 1994, Schedule 2

CASES

Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

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

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 19 December 2023.

2. The applicant, who claims to be a citizen of Samoa, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Samoa, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act[3] and therefore she was not a person in respect of whom Australia has protection obligations.[4]

   [2]The applicant’s application was received by the Department of Home Affairs on 16 October 2023.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant then filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] In filing that review application, she did not provide the Tribunal with a copy of the delegate’s decision record.

   [5]The applicant’s review application was filed with the Tribunal on 20 December 2023.

4. To put the applicant’s case into perspective, her migration history held by the Department shows:

[November] 2021

Granted a Temporary Work (International Relations) visa (subclass 403) as part of the Pacific Australia Labour Mobility (PALM) stream (‘subclass 403 visa’).

[November] 2021

Arrived in Australia. She remained in Australia for the next 12 months.

5 July 2022

Granted a Bridging visa A.

19 July 2022

Granted a Bridging visa A.

17 August 2022

The subclass 403 visa granted [in] November 2021 expired.

Bridging visa A granted 5 July 2022 expired.

Bridging visa A granted 19 July 2022 expired.

Granted a Temporary Activity visa (subclass 408). This visa was valid until 4 April 2023.

[November] 2022

Departed Australia and returned to Samoa.

4 April 2023

Temporary Activity visa (subclass 408) granted on 17 August 2022 expired.

Granted (whilst offshore in Samoa) a Temporary Work (International Relations) visa (subclass 403).

[April] 2023

Arrived in Australia.

16 October 2023

Lodged an application for a Protection visa.

20 October 2023

Granted a Bridging visa A in connection with her protection visa application.

1. On 16 October 2023, the applicant lodged an application for a protection visa with the Department. She claimed that she left Samoa because she came to Australia in pursuit of better economic opportunities, primarily due to the prevalence of poverty and high unemployment rates in Samoa. She went on to claim that returning to Samoa would present substantial challenges in providing for both her and her daughter, and as a result, she was seeking a protection visa in Australia with the goal of establishing a more secure and stable future while actively contributing to the Australian community.

2. When asked to identify in her application why she did not try to move to another part of Samoa for her own protection, she claimed that she refrained from trying to relocate within Samoa because she recognised that moving to a different part of the country would not have notably enhanced her circumstances. She went on to claim that the difficulties stemming from poverty, unemployment, and the inability to return to her family home were prevalent throughout Samoa, rendering it was not feasible to find safety or improve her life within Samoa.

3. She went onto further claim in her application that if she was to return to Samoa, she anticipated that she would be harmed and she would face significant challenges and risks. She envisioned ongoing poverty, unemployment, and a struggle to secure basic necessities and safety. Furthermore, she held concerns about potential mistreatment and abuse from fellow Samoans because of the change in her living conditions. She went on to claim that in essence, she feared a decline in her overall quality of life and wellbeing if she had to return to Samoa.

4. The applicant went on to describe that she held deep concerns about the potential for harm and mistreatment she would experience given her altered living conditions and the hardships that she had experienced. She explained that she feared the likelihood of experiencing social stigmatisation and mistreatment from her fellow Samoans, which might manifest as verbal harassment, discrimination, or even physical harm. She believed that those acts of harm and mistreatment could be carried out by local community members who may lack an understanding of the challenges she has faced. She also feared that these people may harbor biases against individuals such as herself who have left Samoa in pursuit of opportunities abroad. These potential acts of harm and mistreatment may be rooted in ignorance, prejudice, or a lack of empathy for her situation or circumstances, which makes it even more challenging for her to reintegrate back into her community.

5. She did not consider that the Samoan authorities could or would protect her if she returned to Samoa because she has little confidence that the Samoan authorities would be able or willing to offer her adequate protection if she returned. Her scepticism about the authorities is based on her perception that Samoa confronts a range of challenges, including limited resources, which might limit the capacity of the authorities to provide the necessary protection or support for individuals like herself.

6. In her application, the applicant also outlined that she did not think that she would be able to relocate to another part of Samoa for her own protection. She explained that she lacked confidence that relocating within Samoa would create a safe and secure environment for her. This sentiment arises from the understanding that the hurdles she confronts, including poverty, unemployment, and her inability to return to her family home, are widespread across the entire nation. She went on to claim that those challenges transcend any specific locality or region, making it apparent that shifting to some other location within Samoa would not present a remedy to the difficulties she is grappling with. Her comprehension is founded on the recognition that her predicament is not exclusive to a particular area but is reflective of the broader societal issues facing Samoa.

7. On 19 December 2023, the delegate for the Department refused the applicant’s application. Subsequently, on 20 December 2023 she lodged an application with the Tribunal to review that decision. However, in lodging that applicant she did not provide the Tribunal with a copy of the delegate’s decision record.

8. On 5 January 2024, the Tribunal dispatched an email to the applicant’s nominated contact email address and acknowledged receiving her review application. In that letter, the Tribunal explained to her that it was important that she tell the Tribunal immediately if she changed her contact details (such as her residential address, mailing address, telephone number, fax number or email address). If she had a representative or authorised recipient, it is also important that she inform them of any change in her contact details. If she did not, then she might not receive an invitation to a hearing or other important information and her case may be decided without further notice.

9. She was also asked to tell the Tribunal immediately if her personal circumstances change and this is relevant to the review of the delegate’s decision and if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible. In addition to that, the Tribunal also asked if she could provide the decision record to the Tribunal. She did not respond to that email, and nor has she provided a copy of the decision record as requested.

10. On 12 February 2024, the Tribunal again dispatched an email to the applicant and again asked if she could provide a copy of the delegate’s decision record as soon as possible. She was also reminded of the Tribunal’s correspondence to her on 5 February 2024 when the same request was made. She did not respond to the Tribunal’s request.  

11. On 14 February 2024, the Tribunal dispatched an email to the applicant and enclosed an invitation for her to attend a review hearing scheduled for 3 April 2024. She was asked to complete the response to hearing invitation template and return it to the Tribunal within seven days. Similar to the previous requests made of her, she did not respond or return the response template. 

12. On 26 February 2024, the Tribunal received an email from the applicant and she advised that she had relocated to Sydney and she asked for the hearing of her application be transferred to Sydney. That at least indicated to the Tribunal that she was aware of the scheduled review hearing and had received the invitation to attend that hearing. However, it was noted that she did not take the opportunity to provide the Tribunal with a copy of the delegate’s decision record which has twice previously been requested, and nor did she return the hearing response template.

13. On 27 February 2024, the Tribunal responded to the applicant regarding her request to have the review hearing transferred to Sydney. In that email, she was provided with a link and asked to complete the relevant forms to update her current whereabouts. She was also reminded of the Tribunal’s letter to her on 5 January 2024 in regard to her telling the Tribunal of any change in her personal circumstances, including a change of address.

14. In regard to her request for a change of venue for the review hearing, the Tribunal advised her that any decision to change the venue of the scheduled hearing would not be considered until after she had provided those forms to the Tribunal and updated her current personal circumstances, including her residential address. She has never responded to the Tribunal and has never returned to the Tribunal the forms relating to her change of address.

15. The Tribunal was in possession of certain information that was relative to the Samoa’s economic circumstances and the claims she made in her application for a protection visa. The Tribunal considered that this certain information would be the reason, or a part of the reason, for affirming the delegate’s decision under review. On 6 March 2024, the Tribunal dispatched via email to the applicant an Invitation to Comment letter pursuant to section 424A of the Act (‘section 424A invitation’).

16. Within that section 424A invitation the specifics of the certain information were explained to her and she was invited to comment on or respond. It was also explained to her the relevance of that certain information and the consequences of the Tribunal relying on that information when making a decision about her application. The Tribunal also advised the applicant that she was to provide her response or comments to that information by 20 March 2024, and she was cautioned that if the Tribunal did not receive her response or comments by that date, she would lose her right to attend a hearing to give evidence and present arguments.

17. The applicant did not respond to the section 424A invitation within the specified timeframe. The Tribunal subsequently dispatched a further email to her on 21 March 2024 whereby she was advised of the background circumstances of this matter as explained above. She was also advised that because she had not responded within that specified timeframe, the Tribunal has decided to make a decision in respect to her application for a protection visa without taking further steps to obtain her response or comments pursuant to section 424C of the Act; and in accordance with section 425(3) of the Act she lost the right to appear before the Tribunal at a hearing.

    CRITERIA FOR A PROTECTION VISA

18. The measures for a protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.

    [6]Migration Act 1958 (Cth), s 36.

    [7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

19. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

    [8]Migration Act1958 (Cth), s 36(2)(a).

20. 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.[9] 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.[10]

    [9]Migration Act1958 (Cth), s 5H(1)(a).

    [10]Migration Act1958 (Cth), s 5H(1)(b).

21. The Act also provides that 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, and 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]

    [11]Migration Act 1958 (Cth), s 5J(1).

    [12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

22. If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]

    [13]Migration Act 1958 (Cth), s 36(2)(a).

    [14]Migration Act 1958 (Cth), s 36(2)(aa).

    [15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

23. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]

    [16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

24. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]

    [17]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

25. The applicant claims to be a citizen of Samoa and provided a copy of her passport to the delegate to authenticate this claim. The Tribunal accepts her identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Samoa is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[18]

    [18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

26. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[19]

    [19]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

27. In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.

    APPLICANT’S BACKGROUND AND CLAIMS

    [20]Migration Act 1958 (Cth), s 499.

    Background

28. Because the applicant has not engaged with the Tribunal, very little is known about her except from what she outlined in her application. She is from Samoa and claimed that she had never married. She listed in her application that both her parents lived in Samoa, along with her [specified family members]. Although she disclosed in her protection claims that returning to Samoa would present substantial challenges in providing for her daughter, her daughter is not listed her application as a relative living in either Samoa or Australia.    

29. Described earlier in these Reasons are the applicant’s claims relating to why she holds a well-founded fear of persecution if she returned to Samoa. There have been a number of reminders and opportunities given to the applicant for her to provide evidence, documents or other material to support her claims. However, she has not taken advantage of those opportunities, and she have not provide any statement or statutory declaration outlining what evidence, if any, that she relied upon.

    DELAY IN LODGING APPLICATION

1. Earlier in these Reasons the Tribunal referred to the applicant’s migration history. That history reveals that since November 2021, she had made two trips to Australia. She first arrived in November 2021 and remined in the country for 12 months before returning to Samoa in November 2022. She was granted another visa in April 2023 and arrived in Australia for the final time [in] April 2023, and it was not until she had spent approximately six months in Australia that she lodged her application for a protection visa. When assessing that information, her application was lodged almost two years after she first arrived in Australia, and approximately six months after the second time she arrived. The Tribunal finds that both of those time periods are substantial periods.

2. When considering the substantial delay between when she last arrived in Australia and the date her application was lodged, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.

3. No explanation has ever been provided by the applicant as to why there was a significant delay in lodging her application, and after carefully assessing all of the circumstances surrounding that delay of almost six months after she arrived in Australia for the second time, Tribunal is satisfied that the substantial delay cast significant doubt in respect to the genuineness of the applicant’s claims that she has a well-founded fear of persecution if she were to return to Samoa. Therefore, the Tribunal finds that the noteworthy and substantial delay in lodging her protection visa application adds weight to the finding that her claims do not appear to reflect the reality of her circumstances. 

   CONCLUSION AND REFUGEE FINDINGS

4. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Samoa, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[21]

   [21]Migration Act 1958 (Cth), s 36(2).

6. The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims she faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. She has not provided a scintilla of evidence to support her claims.

7. Importantly, the Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[22] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[23]

   [22]Migration Act 1958 (Cth), s 5AAA.

   [23]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

8. It is the applicant’s claim that if she returned to Samoa she will not be able to find employment and provide for her family, the community may treat her unfavourably does not relate to any of the reasons provided in section 5J(1)(a) of the Act and there is no other information before the Tribunal to suggest that she will be subject to harm upon her return to Samoa for one or more of those reasons.

9. After careful consideration of the material available, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as she does not fear being persecuted for reasons of their race, religion, nationality, membership of a particular social group or political opinion as required by section 5J(1)(a) of the Act. Therefore the Tribunal is not satisfied that the applicant is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that she is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

   COMPLEMENTARY PROTECTION CONSIDERATIONS

10. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[24] the Tribunal has considered the alternative criterion.[25] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Samoa, there is a real risk that she will suffer significant harm as it is defined in the Act.[26]

    [24]Migration Act 1958 (Cth), s 36(2)(a).

    [25]Migration Act 1958 (Cth), s 36(2)(aa).

    [26]Migration Act 1958 (Cth), s 36(2A).

    Country Information 

11. It was the applicant’s claims she would suffer economic hardship, and there was a prevalence of poverty and high unemployment in Samoa, and she would face substantial challenges in providing for both her and her daughter. If she had to return to Samoa, she anticipated that she would be harmed and she would face significant challenges and risks and envisioned ongoing poverty, unemployment, and a struggle to secure basic necessities and safety.

12. Available to the Tribunal was certain  country information regarding the economic situation of Samoa. That information provided that in respect to the economy of Samoa, according to the country-by-country analysis and projections undertaken by the International Bank for Reconstruction and Development / The World Bank about Samoa (World Bank report), the economy of Samoa contracted during financial years ending 2022 and Samoa experienced its third consecutive year of economic contraction, declining by 5.3 percent. This marked a cumulative contraction of over 15 percent since the financial year of 2020, primarily as a result of the impacts of COVID-19. Inflation surged to 8.8 percent on an annual average basis in financial year 2022. The current account deficit narrowed to 11.6 percent of GDP in financial year 2022 compared to 14.6 percent of GDP in financial year 2021, primarily on account of robust remittances. A fiscal surplus persisted in financial year 2022, supported by substantial grants, robust revenue collections, and under-execution of capital expenditure. In 2018, 22.7 percent of the population lived under the national poverty line defined by the "cost of basic needs".

13. Notwithstanding that those figures are attributable to Samoa because of COVID-19, the International Bank for Reconstruction and Development / The World Bank report for Samoa outlined that the country’s economy is projected to grow by 6.0 percent in financial year 2023, followed by an average growth of 3.6 percent in the financial year 2024 and the financial year 2025. The recovery in tourism and the spill overs to other sectors combined with increased public investment are expected to drive growth. Inflation is estimated at 12 percent in financial year 2023 and is expected to remain elevated in financial year 2024 amid strong domestic demand. The current account deficit is expected to narrow to 3.0 percent of GDP over the medium term, supported by tourism recovery and continued remittance inflows. A fiscal surplus of 3.1 percent of GDP is estimated for financial year 2023 as revenues continue to outperform expectations. However, a fiscal deficit of 1.5 percent of GDP is projected for financial year 2024 as grants revenue normalizes and expenditure increases driven by the government’s preparations to host the Commonwealth Heads of Government Meeting scheduled for October 2024. While the overall risk of debt distress is high, public debt is assessed as sustainable.[27]

    [27]Macro Poverty Outlook, Country-by-country Analysis and Projections for the Developing World, October 2023, International Bank for Reconstruction and Development / The World Bank, pages 32 to 33, accessed 4 March 2024.

14. The country information shows that contrary to the applicant’s claims about the Samoan economy, the World Bank has identified that Samoa’s economy is projected to grow. Therefore, when weighing that information against the claims she made, the Tribunal is more inclined to place greater weight on the credible and reliable country information as opposed to the uncorroborated claims made by the applicant about the economy of Samoa.

15. The applicant claims that if she returned to Samoa she will experience difficulty in finding suitable employment because of Samoa’s economic circumstances. The Tribunal observes that she has not claimed that she will be arbitrarily deprived of their life, the death penalty will be carried out on her or that she will be subjected to torture. There is also no information to indicate that she would suffer any of these forms of ‘significant harm’ as defined in section 36(2A)(a)-(c) of the Act if she returned to Samoa.

16. The Tribunal has also very carefully considered the findings of the delegate in respect to complementary protection, and as such adopts and supports the delegate’s findings as to whether the harm the applicant fears could constitute either of the other forms of significant harm as defined in section 36(2A)(d)-(e) of the Act, such as ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. Both of those forms of significant harm are defined in section 5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and be intentional. The ordinary meaning of intention implies a plan or aim and Australian case law has found that intention requires a perpetrator to have an ‘actual, subjective, state of mind’.

17. The Tribunal notes that there is no information provided by the applicant to indicate there will be a perpetrator of any harm to her in Samoa. As such, there is no actual subjective state of mind, meaning there is no intention by anyone to inflict the requisite level of pain or suffering or to cause extreme humiliation.

18. In regard to the applicant’s claim that she will be subjected to harassment and/or ill-treatment upon her return to Samoa, and she may also experience resentment, and social stigmatisation because of the perception of the community because she had spent quite soke time abroad in Australia. Likewise to what was just discussed, there is no evidence to support this claim and the Tribunal does not accept that she will be harassed or ill-treated in Samoa.

19. When carefully assessing those points, it is clear that the applicant has not claimed that she will be arbitrarily deprived of her life, or that the death penalty will be carried out on her or that she will be subjected to torture. Further to this, there is no information made available to the Tribunal to indicate that she would suffer any of these forms of ‘significant harm’ as defined in section 36(2A)(a)-(c) of the Act if she returned to Samoa.

20. When carefully assessing the material available, the Tribunal is not satisfied that the claims raised by the applicant about economic hardship amounts to ‘significant harm’ as defined within section 36(2A) of the Act.

21. In conclusion, the Tribunal is not satisfied on the material before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Samoa, there is a real risk that she will suffer significant harm as defined in section 36(2A) of the Act, and nor is the Tribunal satisfied that she is a person in respect of whom Australia has protection obligations as provided for in section 36(2)(aa) of the Act.

    CONCLUSION: REFUGEE CRITERION

22. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance she will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

23. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Samoa, she will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

24. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act. Having concluded that she does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

25. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, she does not satisfy the criteria in section 36(2) of the Act.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Wayne Pennell
    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.

    …