2401229 (Refugee)

2401229 (Refugee) [2024] AATA 2645 (3 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2401229
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Lilly Mojsin
DATE:3 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 April 2024 at 10:36am
CATCHWORDS
REFUGEE – protection visa – Samoa – religion – Samoan Congregational church – joined a new church in Australia – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 3 January 2024 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, arrived in Australia [in] October 2021 as the holder of an International Relations (subclass 403) visa and he applied for the protection visa on 27 September 2023.
The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm, within a reasonably foreseeable future on his return to Samoa. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the review application.
The applicant appeared before the Tribunal on 4 March 2024 to give evidence and present arguments. The applicant did not require the services of an interpreter and was able to speak English.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection in his Protection Visa Application are:
·     The applicant comes from a strict Catholic family. While in Australia the applicant changed church.
·     The applicant’s family in Samoa feel that the applicant has disgraced them by changing churches and have threatened violence if the applicant returns to Samoa. The applicant states his belongings have already been burned.
·     The applicant thinks if he returns to Samoa he will be beaten, have land rights and chiefly titles taken away, and will be banished by his family.
·     The applicant does not believe the authorities in Samoa will protect him if he returns because his family has contacts within the department.
·     The applicant does not believe he would be able to relocate in Samoa because there will be long term suffering if he returns home.
At the Tribunal hearing the applicant stated that he was born on [date] and he has a partner, they are not married. There are no children. His partner is a [Country 1] citizen.
The applicant left Samoa to work as a seasonal worker in Australia and arrived in May 2021 with a 3 year visa. He was working for a company, [Company 1], and he had some problems with them, so he stopped working for them in 2021, he now works for [Company 2] as a [Occupation 1].
Asked what he fears about returning to Samoa, he said that he changed religion from the religion of his parents, the London Missionary Christian Church. They are very dedicated people and they hold a position in the church. He is attending a new faith, a renew Christian reform. His parents belong to a Congregational Christian Church. He grew up in this church. In the village where he grew up, this church was the only one in the village, [Village 1]. The village is on Upoluu Island, the main island. The village is [number] hours by car from the capital Apia.
The applicant went to school in the village. When he finished school he lived in the same village. He worked in [Apia]. He worked in [Occupation 2] and [Occupation 3]. He did not stay in Apia as there was no one to look after his parents. He has [number] siblings in Samoa, but because he is the eldest he looked after his parents. One of his brothers is looking after his parents now. I put to the applicant that he can return to Samoa and he does not have to go to his village. He said that he fears returning as his parents have relatives everywhere and he will be threatened anywhere. Life in Samoa is corrupt.
I put to the applicant the independent evidence that Samoa has an effective police force and an Ombudsman to protect its citizens. He said he fears returning as Samoa it is very unsafe even if he returns to Samoa and lives in another village, his father will still find out where he is. His father still works, he works for the police office authority. When I put to the applicant that I did not accept that his father would harm him in light of his employment in the police service he responded that his father will use members of his family to do so.
I put to the applicant that he told the Department that he is Catholic and came from a strict Catholic family. He responded that his parents are dedicated Samoan church but his father has siblings and they do not attend the same religion and that is why he is fearful. The person who was documenting his application got it wrong. He is saying that his family church is Congregational Samoan church, it is a Christian reform Church.
I asked him for the address of his new church in Australia. He did not know where it is, stating the service is in a school hall. It is close to a Mall in [City 1]. I asked him if he had any personal references from the church of his membership. He said he does not have references “you just walk in and walk out, you do not have to belong”. He has been attending every Sunday since 2021 but when asked about the last date he attended he said that he cannot remember the date. When asked for the church’s name he said it is ‘Walk In and Walk Out Church’. I asked him how many branches of the church were in Samoa and he said none. I asked him to explain the differences between this church and the Samoan Congregational church and he said that there are no responsibilities unlike the Congregational church.
I asked the applicant what responsibilities he was referring to and he said that when he was growing up he had responsibility as choir master. This new church is not registered in Australia. I put to him he has not described any religious teachings and beliefs of his new church. I asked about the difference in this church’s interpretation of the Christian faith. He said that the Congregational church has a constitution, they require members to help. They are strict with their roles under the constitution and force you to attend and belong.
I put that his new church is not in Samoa. I put there are many Christian churches in Samoa and the Samoan constitution grants freedom of religion. I put that Samoa has an effective police force and if he has any complaints about the police he can go to the Ombudsman. He disagreed, he said police cannot attend for his safety and there is no protection for an individual. He said he cannot trust the police protection as his parents have relatives and he fears for his safety.
I asked him how his family knows he attends the Walk In and Walk Out church. He responded that when he first attended the church he told his parents he is going to the church and there was not a good response.
He said that he fears returning to Samoa as he feels very unsafe as his father has relatives everywhere. Even though he has relatives everywhere there is no accommodation anywhere. His father is very unhappy as he is not doing what he was told to do by his father. Asked what he does with his salary he said that he pays for clothes and for his car. I put he can sell his car and his assets and pay for somewhere to stay in Samoa. He said the money will not last because the weather in Samoa is hot and he needs to live in a house. I put that the weather affects all persons in Samoa.
I discussed the US State Department report that indicates there is an effective police force and independent judiciary, the Samoa Police Service is responsible for the safety and security of Samoa and its people from internal and external security threats. The judiciary interprets the law, ensures that the rule of law prevails and is the guardian of the constitution as the supreme law of Samoa. The applicant stated that he agrees with the independent evidence. He still feels unsafe as the police are not there 24/7 and his father can contact the police.
I asked him if he intends going to church on his return as the new church to which he now belongs is not in Samoa. He said he will not go to church. If he does attend another church his parents do not agree.
INDEPENDENT EVIDENCE
Samoa[1] is a Polynesian country northeast of Fiji. Samoa consists of four inhabited and a number of smaller, uninhabited islands. The capital Apia is located on Upolu, the most populous and developed of the islands. Upolu and Savai'i, the other main island, account for 99 per cent of Samoa's 201,000 population. In 1962, Samoa became the first Pacific island country to achieve independence.
[1] Samoa country brief | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
Samoa is a parliamentary democracy. Samoa's constitution and its political system take substantial account of Samoan traditions and culture. The National Legislative Assembly is elected by universal suffrage for five-year terms, with all seats reserved for matai – people who have chiefly status in Samoa's villages. Samoa has an independent judiciary and a separate court to resolve disputes over land and traditional titles.
The constitution provides for the right to a fair public trial, and an independent judiciary generally enforced this right.
Village councils handled many civil and criminal matters, but the councils varied considerably in decision-making styles and the number of matai involved in decisions. The law recognizes the decisions of village councils and provides for limited appeal to the Lands and Titles Court. The nature and severity of a dispute determines which court receives an appeal.
The constitution[2] provides for the right to choose, practice, and change one’s religion, and it defines the country as a Christian nation. Parliament debated repealing a 2017 law that required clergy to begin paying income taxes, from which they were previously exempt. In 2021, the government halted enforcement of the law. The government continued to use the Congregational Christian Church of Samoa’s TV2 station to convey political messages.
There was reportedly strong societal pressure at the village and local levels to participate in church services and other activities and, in some cases, to give large proportions of household income to support church leaders and projects. Some local denominations continued to own and operate their own television stations, which were available to other religious groups and nonreligious organizations for broadcasting their organizations’ messages.
The U.S. government estimates the total population at 206,000 (midyear 2022). According to the 2021 national census, Congregational Christians constitute 27 percent of the population; Roman Catholics, 19 percent; members of The Church of Jesus Christ of Latter-day Saints, 18 percent; Methodists, 12 percent; and members of the Assemblies of God, 10 percent. Groups together constituting less than 16 percent of the population include Seventh-day Adventists, Jehovah’s Witnesses, Congregational Church of Jesus, Church of the Nazarene, nondenominational Protestants, Baptists, Worship Centre, Peace Chapel, Samoa Evangelism, Elim Church, Anglicans, Baha’is, and small numbers of Hindus, Buddhists, Muslims, and Jews primarily in Apia. Less than 1 percent stated no religion or did not select a religion.
The Ombudsman is the country’s highest-ranking official responsible for human rights, including religious freedom.
Villages tend to have one primary Christian church. Village chiefs traditionally choose which church, based on the denomination of their extended families. Sources stated, however, that many villages, such as Vaitele and Vailima, had multiple churches serving different denominations and coexisting peacefully.
[2]
The Pacific Australia Labour Mobility (PALM) scheme commenced in 2021. Under the Programme, seasonal horticultural workers from Pacific countries are recruited by horticultural enterprises in Australia to meet their seasonal harvest needs. This enables citizens of select Pacific island countries including Samoa to take up low and semi-skilled work in rural and regional Australia for up to three years.
REASONS AND FINDINGS
On the basis of his Samoan passport, I accept that the applicant is a national of Samoa and a not national or citizen of any other country or has a right to enter and reside in any country other than Samoa. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Samoa is the applicant’s “receiving country” for the purposes of s.36(2) (aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the 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.
The applicant does not claim to have suffered any harm for reasons his race, religion, nationality, membership of a particular social group or political opinion when he lived in Samoa.
I accept the applicant arrived in Australia under the PALM scheme to work. He does not claim to have suffered any harm in Samoa when he lived there. I am satisfied the applicant came to Australia to work.
I have considered the applicant’s evidence singularly and cumulatively. I am satisfied the applicant did not suffer serious harm, in Samoa, for a refugee reason ie. for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
I am required to consider if the applicant will suffer serious harm, for reasons of his race, religion, nationality, membership of a particular social group or political opinion, on his return to Samoa, within a reasonably foreseeable future.
The most recent US State Department Country Report Human Rights Practices Samoa 2022 states that Samoa is a constitutional parliamentary democracy that incorporates traditional practices into its governmental system. The national police, under the Ministry of Police, Prisons, and Corrections Services, maintain internal security. Civilian authorities maintained effective control over the security forces. There were no reports that members of the security forces committed abuses. The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality.
The applicant claims that since his arrival in Australia he has changed his religion and now attends a new church, the Walk In and Walk Out church that holds its services in [City 1]. He claims that as a consequence of these actions his family and his father, who works for the police, do not approve and he will suffer serious harm from his father and extended family members.
I accept Samoa is a Christian country and there is strong societal pressure at the village and local levels to participate in church services and other activities. The majority of Samoans belong to the Congregational Church and often villages have one primary Christian church. Village chiefs traditionally choose which church, based on the denomination of their extended families but there are villages where different religions co-exist.
I do not accept that the applicant is a witness of truth. In his Protection Visa application the applicant claimed that he was Catholic from a strict Catholic family. When put to him, he stated that the person who filled out his application made a mistake. I do not accept his explanation. The applicant speaks, reads and writes English. He has worked in Samoa in an [Occupation 2] capacity. He has finished high school. I do not accept that anyone filled out his application form and made a mistake.
The applicant’s evidence is regard to the church that he had joined in Australia was unconvincing. He was not able to explain where the church was located, could not remember the date that he last attended the church and stated also that he did not belong to the church. The applicant did not provide any references from anyone from the church to support his claim of attendance at the church or the existence of the church. He was unable to explain any difference of this church’s interpretation of the Christian faith from the Congregational Church that he claimed his family belonged to, other than to state that the Congregational Church had required that he hold a position as choir master, that the Congregational church had a constitution, required members to help, were strict with their roles under the constitution and forced a person to attend and belong.
I do not accept as plausible that someone who claims to attend a church every week is unable to explain its religious teachings or its religious differences from the church he had attended in Samoa. I am satisfied the applicant is not a witness of truth and has created his claim of joining a new church in Australia in order to obtain the visa sought.
Therefore, as I do not accept that the applicant attends a new church in Australia I do not accept that he has been threatened with harm by his parents or any extended family members for changing his religion since living in Australia. I do not accept that his belongings were burned in his absence or that he fears he will be beaten, have land rights and chiefly titles taken away, and will be banished by his family for reasons of his religion.
Therefore I find there is not a real chance the applicant will suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion, on his return to Samoa, within a reasonably foreseeable future.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
I am required to assess if the applicant will suffer significant harm on his return to Samoa within a reasonably foreseeable future.
The applicant is an ethnic Samoan who came to Australia in order to work. He has not made specific claims for complementary protection separate from those put forward in relation to his refugee criteria. As stated above, I am satisfied that the applicant did not suffer serious harm in Samoa and I am satisfied he will not suffer serious harm at the hands of his family on his return.
The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. There is no evidence that there is a widespread condition of violence in Samoa and I do not accept that there is a real risk of harm from non-state actors.
Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Samoa that there is a real risk the applicant will be arbitrarily deprived of his life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

Therefore, the applicant does not satisfy the criterion set out in s.36(2)(aa).
CONCLUSIONS
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

ANNEXURE A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 2645

3 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction