2321313 (Refugee)

2321313 (Refugee) [2024] AATA 2594 (19 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2321313

COUNTRY OF REFERENCE: Samoa
MEMBER:David James
DATE:19 March 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 March 2024 at 2:01pm
CATCHWORDS
REFUGEE – protection visa – Samoa – particular social group – people with disabilities – mental health condition – employment – credibility issues – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 411, 426, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310 of 1997
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
SZRQA v MIBP [2013] FCA 962
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 22 December 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Samoa, applied for the visa on 4 September 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Samoa, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 30 December 2023. The applicant subsequently, upon the request of the Tribunal, provided a copy of the delegate’s decision to the Tribunal on 19 January 2024.
As noted above, the applicant has provided a copy of the delegate’s decision to the Tribunal. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Samoa, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Samoa, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents from the Department and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, which have been considered by the Tribunal:
·The applicant’s protection visa application lodged on 4 September 2023, and the following annexed documents:
oApplicant’s Samoa passport;
oA Samoa Ministry of Police ‘Police Clearance Report’ in the name of the applicant, dated [in] August 2023;
oApplicant’s Samoa Birth Certificate which records the applicant’s mother’s name as [Mother A] and his father’s name as [Father A];
oSamoa Death Certificate in name of [Ms A] (purported death certificate of the applicant’s mother) recording the deceased’s date of death as [a day in] November 2014;
oApplicant’s signed typewritten undated letter (Statement of Claims) to the Department, in which he states that:
I have not provided any document to support my visa because I have no evidence, but I write this letter to fully explain you, my situation.
My mother raised me when I was young, I haven’t met my biological father since I was born until the time, I left Samoa. My mother has mental illness, and she can’t remembered anything like her family, relatives and things that belongs to her. I came through in very rough and difficult situation which was out of my control, and I thank God I’m still alive. My mother passed away about 9 years ago. The family we lived doesn’t like me to stay in their house anymore because people look down at them because of me. People keeps talking against them because of my situation. I was trying to look for my biological father but wasn’t had any chance to meet him. I don’t know who my farther is I need to know so I want to stay with him and have a happy life.
Coming in this life was not an easy life for me with no family no relatives and no belongings. If I am going back to Samoa, I had nowhere to stay and no family member. Please I don’t want to go back as I have no place to live. Living in poverty in Samoa with no house to live in. I am broken, I have no family, no parents, no friends, no love and no money.
Thank you for considering my application and your decision is much appreciated.
·The Department’s s 56 of the Act, ‘Request for more information for a protection visa application’ letter to the applicant of 9 October 2023, in which the request details included:
Please provide details of your family members living in Australia, Samoa or any other country. This includes any current partners, (spouse or de facto), children (biological or adopted), parents (biological, adopted, stepparents, legal guardians) and siblings (including full, half, adopted or stepsiblings). In your response, please include the following information for each family member:
Your statement of claims lacks key details of your claims about having no home, no family and being mistreated, such as dates, locations and details. You have also not provided any evidence in support of these claims. Due to your lack of detail or evidence, I am concerned about the genuineness of your protection claims. Therefore, to assist me in deciding whether to accept that these claims are genuine, I am inviting you to provide further information and documentary evidence about what happened to you in Samoa including dates and locations of events. You have also claimed to have the same medical condition as your mother, however you have not provided any information about your condition. Your claim lacks detail about the following:
I am inviting you to provide information such as a diagnosis, medical report about your condition or other related information that may be able to provide detail to your claims.
·The applicant’s typewritten response to the Department’s s 56 of the Act request, in which he states in part that:
I have no sister and no father as well as no brother. Just me and my mother.
I don’t know what kind of medical condition I had but the family I lived with, they observing me from the first time I live with them in the way I act and the way I talk and the way I connect with them. The lady that own the house told me I had a medical condition of Autism because most of the time she ask me about something I totally forget what she ask. She said to me the condition that she was observing me that I had is totally the same condition with the autism.
When I talk I will talk slowly, sometimes I forget words to pronounce. My brain is slow to think to react to something. People misunderstand and they pick on me for not responding to them well and making sense to them they ask me. In my learning skill I’ve learned slow and really hard to catch something that I try to achieve.
I am unemployed with no financial support. No one wants to offer me any job due to my condition. Samoa has not financial assistant to support disabled people like me. Also there is no place like a disability place to accommodate people like me.
In Samoa I didn’t go to the hospital for treatment because I don’t know why am I going to the hospital. My brain is everywhere, I think I am a normal person but its not, other people are watching me and observing me in the way I do things. They noticed I had something wrong in my health. When I’m in Australia then I believe from other people’s perspective that I had a medical condition it needs to solve and make treatments. I think I am normal but its not. Most people mistreat me because of my condition and I think I’m a normal person. I was mentioning my application that I had a medical condition like my mother and the reason Why I say that is because most of the time people mocking me and calling me MENTAL they said I’m a mental person like my mother.
·The applicant’s application for review of 30 December 2023;
·Department’s decision record of 22 December 2023, provided to the Tribunal by the applicant on 19 January 2024;
and;
·The administrative and movement records of the Department relating to the applicant.
Claims for protection
In his protection visa application, the applicant made the following claims for protection (as summarised) that:
·He was raised by his mother, and they lived with different families. His mother had a mental health condition and could not remember her family, relatives and belongings. His mother died on [a day in] November 2014, and he does not know who his biological father is and has not met his biological father.
·After the death of his mother, the family they were living with chased him away from their house and told him to look for another family. They did not want him to stay with them anymore because people look down on them because of him. He started living in various public places in March 2015.
·In August 2015, a family offered him a home and he lived with them until May 2022 when he departed for Australia. He has no home, family and money if he returns to Samoa.
·He did not relocate in Samoa as moving to other parts of the country was not an option for him. He has no family who would support him. All he wanted was to come to Australia to look for a job so he could financially support himself.
·He sought help from the organisation who dealt with people who wanted to work in Australia.
·If he returns to Samoa, he faces a lot of stress and suicide as he has no family and relatives to help him. He will be mistreated in Samoa because he is poor. People would look down on him because of his situation and life story.
·He does not think that the authorities in Samoa will protect him. There is no assistance available to people in Samoa.
·Relocation in Samoa is not appropriate for him. He also has a medical condition. His mind is not functioning well enough to be able to think and speak to people. Many people call him a fool when he talks and acts slowly.
Department interview
The applicant was not offered an interview with the Department.
Delegate’s decision
The delegate’s decision of 22 December 2023 to refuse the protection visa was made on the information before the delegate. The delegate did not accept that the applicant had a current medical diagnosis as suffering from autism and did not accept that the applicant had never been employed. The delegate found that the applicant’s claims of fearing returning to Samoa were for economic reasons, that he had no job, no family support and no home in Samoa and that they did not relate to any of the reasons in s 5J(1)(a) of the Act. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Samoa, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend a hearing
On 12 February 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 19 March 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it 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. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Review hearing - 19 March 2024
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
On the morning of the scheduled hearing, 19 March 2024, the Tribunal telephoned the applicant’s mobile [number]], the number nominated by the applicant on his application for the protection visa, as he had not provided a contact telephone number on his application for the review. These calls were made at 9:25 am, 9:45 am, and 10:00 am. On all three occasions a recorded message reported that the number dialled had been disconnected.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with the invitation sent via email to their nominated address as identified above at paragraph 19.
As noted above, the Tribunal also attempted to contact the applicant on the morning of the scheduled hearing by telephoning the mobile telephone number which he had nominated on his application for the visa, as has been outlined above at paragraph 21. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Country information
The World Bank reported on 27 May 2021, that:
While Samoa is facing significant challenges of rising NCDs, the current health service deliverysystem is not well poised to tackle the challenges.The system is largely publicly owned and heavily hospital centric. Patients often bypass primary health care (PHC) and overcrowd the main national referral hospital in the capital, Apia.
In an effort to revitalize Samoa’s primary health care and community engagement, the government of Samoa is initiating a renewed emphasis on family-orientated, community based engagement to provide health services to citizens…
Samoa used to have a service delivery model with a strong focus on Primary Health Care. Doctors were deployed in the rural district hospitals working with village women’s committees (VWCs) to facilitate access to health services. Gradually, doctors were pulled back from rural facilities to national and referral hospitals, compromising the quality of the health service delivery system.
In a country of less than 200,000 people, Samoa has two main hospitals (one in Apia and another on Savaii Island) and 11 rural health facilities comprising 6 rural district hospitals and 5 community health centers - the latter open during working hours and only from two to five days a week. The rural health facilities are staffed mainly by nurses. Doctors are concentrated at the national hospital in Apia and typically spend only one day a week at rural district hospitals. This model moved health services from the community to the main hospitals and patients have to travel there to see the doctors…
The government aims to reverse this situation with the deployment of multidisciplinary teams. Each MDT includes a primary care physician, nurses, nutrition assistant, allied health workers, and members of the Village Women’s Committee. The MDTs have clearly defined functions to provide a coordinated continuum of care for the community. This is an approach to reorient the service delivery system to address rising NCDs through integrated service provision with the rural district hospitals at the center.
In late 2020, following the approval of the cabinet, two multi-disciplinary teams were successfully deployed at Foailalo District Hospital and Lalomanu District Hospital. Each hospital welcomed seven additional personnel, including a district medical officer, district nurse manager, midwife, senior health inspector, public health nurse, community nutrition officer, and data management administration officer. The multidisciplinary team plays a central role in the service delivery chain covering screening, early detection, chronic disease management, infectious disease control, immunization, and community outreach. It serves as both the care coordinator and the care provider for NCD patients and people at high risk of developing NCDs.
The multidisciplinary team will take on the responsibility to manage and track NCD patients in their catchment area to ensure full compliance with the treatment. The team’s task is also to register and track the high-risk groups and provide proactive health promotion and disease prevention services to these high-risk citizens. The goal is to ensure good health for the community and reduce the risk of villagers becoming NCD patients.[1]
[1] ‘Samoa Deploys Multidisciplinary Teams to Revitalize Primary health Care in Rural Areas’, The World Bank, 27 May 2021 at type="1">
In an article titled, ‘Improving Mental Health in Samoa’, the Bergen Project reported on 2 October 2023 that:
Samoans have faced many challenges regarding mental health. Due to a lack of financial support, Samoans have had little education about mental illness and how to treat it. This confusion has resulted in misconceptions as to what causes poor mental health.
For many years, the Samoan culture relied on the belief that a demon was responsible a demon was responsible for mental illness. This “demon” dictated the person’s actions and feelings about themselves. This belief led to feelings of isolation and misunderstanding amongst the Samoan people. That isolation perpetuates the silence.
In the 1970s and the early 80s, Samoa experienced an epidemic of suicide. The suicide rates rose sharply, and the mental health of many Samoans worsened. To combat this, the minister of public works decided they needed to build a space for people struggling with mental illness. However, they did not have the resources or money to care for these patients. Pisaina Tago, a nurse at the time, recalled what happened to one of the violent patients: “One of the patients — he damaged the whole room, and everyone was at risk. We took him to the police, and they agreed to take him to prison, and that’s where he died. He [was found] drowned in the 44-gallon water tank for the toilet and baths.”
By 1981, Samoa had the third-highest suicide rate in the world per capita. The citizens needed help.
Poverty has an extreme effect on one’s mental health. Being at or below the poverty line makes someone twice as likely to suffer from depression. Samoans already experience immense pressure from family and peers. Adding financial insecurity on top of this is detrimental to one’s well-being. The good news is that changes have begun to address mental health and poverty in Samoa.
Rehabilitative measures have started to help Samoans find meaning in life and allow them to open up. First, the Mental Health Unit (MHU) constructed new buildings. These renovations created a safer space for the staff and patients. The MHU also started implementing art therapy. Art allows the patients to express themselves. This form of self-care has spread around the island and reached youth.
The MHU in Samoa altogether is working towards lowering suicide rates. With the awareness rising of the extremities of mental illness, the MHU can target many of its causes now. Alcohol, bullying, prison and family problems are focal points for the MHU and stopping suicide. In a 2014 survey, when 124 Samoans were asked if mental health was important, 77% said it was, and the other 23% said it was not, signifying the need for education.
Fellow Samoans have also started to step in and help their community. The organization Faatua Le Ola (FLO) started offering free l sessions for anyone who needs help. FLO spreads awareness about suicide by reaching out to schools and speaking to youth about where to get help. FLO also created a hotline to prevent suicide. It is one of many organizations that realized the dire need for mental health assistance on the island…
…Although there is room for growth in improving mental health in Samoa, increased awareness and problem-solving have put the island on the right track. The future of Samoan mental health will continue to improve with better action plans to alleviate poverty and help from the community.[2]
[2] ‘Improving Mental Health in Samoa’, Madison Rogers, 2 October 2023, The Borgen Project at httpps://Borgenproject.org/improving-mental-health-in-samoa
The Tribunal has also considered information contained in the Asian Development Banks’ Member Fact Sheet, Samoa, 31 December 2022, where it is reported that:
Samoa has two main islands—Savaii and Upolu—and several smaller ones covering 2,934 square kilometers of land. The country depends on fisheries and agriculture for exports while importing most of its fuel and commodities. The combined impact of a measles outbreak in late 2019 and the coronavirus disease (COVID-19) pandemic in 2020 saw gross domestic product contract by 3.3% in fiscal year 2020. Moreover, although remittances grew by 4.9%, visitor arrivals fell by 30.3% due to border closures. Further contraction occurred in fiscal years 2021 and 2022 (with estimates of –7.1% and –6%, respectively) with a slow restart in tourism after borders reopened in August 2022. Samoa is a founding member of the Asian Development Bank (ADB) in 1966 and has been receiving support from the bank for infrastructure development and policy reforms, and strengthening its climate resilience. Samoa has been making good progress in addressing poverty and managing gender, health, education, and environment issues.[3]
[3] ‘Asian Development Bank Member Fact Sheet – Samoa, 31 December 2022, AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Samoa and provided a copy of his Samoa passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is and is a national of Samoa. Samoa is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[4] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[5] This is consistent with the established proposition that it is for the applicant to make his or her own case.[6]
[4] Section 5AAA of the Act.
[5] Ibid (with effect from 14 April 2015).
[6] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face 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 of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[7] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[8] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[7] Fox v Percy (2003) 214 CLR 118
[8] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[9] A similar approach is taken in the Department’s Refugee Law Guidelines[10] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[11] which both provide useful guidance for this Tribunal.
[9] SZLVZ v MIAC [2008] FCA 1816 at [25].
[10] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[11] UNHCR, re-issued February 2019 at [203]–[204].
Having reviewed the information and evidence before the it, the Tribunal finds that the applicant has not provided a level of detail to satisfactorily establish the relevant facts which the applicant relied upon in support of his claims.
The Tribunal also notes, that notwithstanding the Department having refused to grant the applicant a protection visa, the applicant chose not to attend a hearing where he could give evidence and make arguments. The Tribunal further notes that if the applicant had attended a hearing, the Tribunal would have been able to ask the applicant questions to which he may have been able to provide further information and/or evidence as to the facts of his matter.
Refugee claim – economic social and medical issues
The applicant claims that after being raised by his mother in circumstances where he and his mother lived with other families in Samoa, and she suffered a mental health condition which caused her to not remember her family and relatives, she died on [a day in] November 2014. He further claims to not know who his biological father is, and that he has not been able to locate him and meet him. The applicant further claims that after the death of his mother, the family that he had been living with, chased him away as they did not want him to stay with them because people looked down upon them, because of him. He claims that the family and others believe he is ‘mental’ and is autistic. He claims to have lived in various public places in March 2015, before moving in with a family in August 2015, with whom he stayed with until he departed for Australia [in] May 2022.
The applicant further claims that he sought help from an organisation who dealt with people who wanted to work in Australia before he departed for Australia.
The applicant claims that he will face a lot of stress and suicide if he returns to Samoa because he has no family and relatives to help him and that he will be mistreated because his is poor, and that people will look down at him because of his situation and background (purportedly being thought of as ‘mental’ and autistic). He also claims that the authorities will not protect him and that there is no assistance available to people (like him) in Samoa.
The Tribunal notes that the applicant annexed his Samoa Birth Certificate to his application for the visa. This certificate records the applicant’s mother as [Mother A] and his father as [Father A]. The applicant also annexed a Samoa Death Certificate to his application which records the deceased (purportedly the applicant’s mother) as [Ms A]. The applicant relies upon this death certificate as evidence of his mother’s death on [a day in] November 2014.
In regard to this evidence, the Tribunal notes that the applicant contrary to his claims that he does know the name of his biological father, has had access to his birth certificate which clearly identifies his biological father as [Father A]. Additionally, the death certificate relied upon by the applicant as to his mother’s death is not in the name of his mother as recorded on his birth certificate but rather relates to a deceased named [Ms A] who is also recorded as having been married to a [Mr A].
Given the stark inconsistencies as outlined above in the documentary evidence, and that the applicant has chosen not to explain same through his earlier response to the Departments’ request for more information, together with the applicant choosing not to appear at a review hearing and provide an explanation, the Tribunal is not satisfied that the applicant does not know who his biological father is, and that his mother has passed away as he has claimed.
Additionally, the Tribunal notes that the applicant has not provided any information and/or evidence in support of his claims that he has suffered from and/or is suffering from any psychological, psychiatric and/or any other medical condition by way of any information and/or evidence as to any medical diagnosis, assessment and/or treatment that he has received.
Further as noted above at paragraph 34, the applicant’s claims are vague and lack any details as to specific dates and any description of claimed incidents such as where and with whom he and his mother lived with in Samoa, for what periods they lived with these other families, how they supported themselves and what if any medical diagnosis and/or treatment he and/or his mother received in Samoa.
The Tribunal further notes that the applicant in his visa application recorded his occupation as that of a fisherman notwithstanding elsewhere in his application, having claimed to have never been employed.
After careful consideration of the applicant’s claims as outlined in his application for the visa, his annexed statement, his replies to the Department’s request for more information, and noting that he arrived in Australia [in] October 2021, and not as claimed [in] May 2022, on a Temporary Work International Relations Visa through the Seasonal Work Program (SWP), the Tribunal finds that the applicant’s claims are vague and lack any real details and specific descriptions of the timing and circumstances of claimed incidents and are inconsistent with the documentary evidence submitted. Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal rejects the applicant’s claims in there entirely on the basis of their inconsistency and a lack of credibility.
Additionally, the Tribunal with reference to the country information as outlined above at paragraphs 24 to 26, finds that there are medical services available in Samoa including mental health and counselling services that the applicant can access of he so needs to do so, upon any return to Samoa. Further given his previous employment as a fisherman and seller of fish in Samoa together with his ability to have obtained employment through the SWP in Australia, the applicant has had work experience and a proven ability to have been able to sustain and support himself. Therefore, the Tribunal does not accept on the evidence before it, and for the reasons outlined above, that the applicant would not be able to sustain and support himself financially if he was to return to Samoa in the reasonably foreseeable future.
After consideration of the applicant’s claims and notwithstanding the Tribunal having rejected the entirety of those claims on a credibility basis, the Tribunal also notes that the applicant’s claims of fear as to not having employment, family support, a home in Samoa or being able to receive medical treatment or assistance are not for any of the reasons outlined in s 5 J(1)(a) of the Act.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to Samoa in the reasonably foreseeable future on account of his race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Consideration of complementary protection claims
The Tribunal also finds, with reference to the country information as outlined above at paragraphs 24 to 26 that the economic situation in Samoa is a factor faced by the population at large. Further the applicant can if he so needs obtain protection from an authority in Samoa through the available medical services of Samoa such that there would not be a real risk of the applicant suffering significant harm for reasons of the applicant fearing stress and suicide in Samoa .
Delay
Additionally, the Tribunal notes, that the applicant arrived in Australia [in] October 2021 for work through the SWP, but did not make an application for protection until 4 September 2023, one year, ten months and [number] days after his arrival in Australia. The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (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 take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution he would not have delayed applying for a protection visa.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion and given the economic situation in Samoa is something faced by all of the Samoa community and that the applicant can if so needed, obtain protection from an authority of Samoa that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept 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 the applicant will suffer ‘significant harm’ as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings

Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Samoa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
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 2594

19 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction