2401230 (Refugee)

[2024] AATA 2366

2401230 (Refugee) [2024] AATA 2366 (6 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2401230

COUNTRY OF REFERENCE:                   Samoa

MEMBER:Lilly Mojsin

DATE:6 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2024 at 11:04am

CATCHWORDS
REFUGEE – protection visa – Samoa – getting into a fight – effective state protection – economic hardship – lack of employment opportunities – 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Samoa, arrived in Australia [in] October 2021 as the holder of [a specified] visa and he applied for the protection visa on 23 September 2023.

3. 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.

4. 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

5. See Annexure A

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant claims for protection are that if he returned to Samoa, he will face economic hardship and lack of employment opportunities. The applicant claimed that he has been stressed and worried about the social stigma he will face from fellow villagers given his inability to financially provide for his family as the oldest son. He fears social ostracism and mistreatment from fellow villagers.

7. At the PV interview, the applicant also claimed that his fellow villagers often commented that he was dependent on his parents despite working and helping his family at their property. The applicant claimed that aside from these comments made towards him, there has been no other incidents directed at him.

8. At the Tribunal hearing the applicant said that he did not suffer any harm in Samoa. He came to Australia to work as part of the Pacific Islander Scheme. His parents, brother and sister are in Samoa and he has one brother in New Zealand. He has cousins and uncles in Australia. His girlfriend, in Australia, is expecting his child, she is Samoan.

9. He came to Australia in 2021 for a 2 year work contract and it finished. He does not want to return as he wants to achieve his goals and build a good house in Samoa, he wants to work to earn an income in Australia.

10. When asked what he fears about returning to Samoa he said that he has small fears. He had a fight with kids in the village. In 2018 he got into a fight, he was [age] years of age, it was about a rugby game. The parents sorted it out. The police were not called because it was sorted out by the family. It was a misunderstanding.

11. I discussed independent advice that Samoa has an effective police force. I put that Samoa has an effective police service and he can call the police if it happened again. He agreed that he could.

    INDEPENDENT EVIDENCE

12. 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)

13. Samoa is a parliamentary democracy. Samoa's constitution and its political system take substantial account of Samoan traditions and culture. he 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.

14. 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

15. 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).

16. 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.

17. 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. He claims to have had a fight with some other persons in the village over a rugby game and in his Department claim that comments were made by villagers that he was dependent on his parents despite the fact he was working and helping his family at their property. I find that having a fight with other persons that did not result in any injury or harm and was resolved by the parents does not amount to serious harm. I also find that verbal comments about the applicant being dependant on his parents does not amount to serious harm.

18. I accept the applicant arrived in Australia under the PALM scheme to work.  He applied for a PV in order to extend his stay in Australia, to continue working to earn an income and save to build a home on his return to his village. 

19. 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.

20. 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.

21. 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.

22. I accept that the applicant fears getting into a fight again, but when put to him that he can call the police he agreed. I am satisfied that were the applicant to have a fight on his return to Samoa, the Samoan police are able to provide effective protection measures. Therefore I find remote the chance that the applicant will suffer serious harm within a reasonably foreseeable future on his return to Samoa.

23. The applicant did not claim to the Tribunal that he would suffer economic harm on return. He wants to save money by staying in Australia in order to build a house.

24. DFAT[2] reports that Samoa's economy was heavily impacted by COVID-19. Tourism was hard hit and has experienced a slower than expected rebound following borders reopening in August 2022. Record growth in remittances (22 per cent for the year to December 2022) from Samoan’s working abroad has provided some buffer.

    [2] Samoa country brief | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)

25. The applicant claims he would face economic hardship and a lack of employment opportunities in Samoa. The applicant worked in his family farm when he lived in Samoa. He does not claim to have suffered significant economic hardship that threatened his capacity to subsist when he lived in Samoa.  Therefore I find there is not a real chance that the applicant will suffer serious harm for reasons of economic hardship in Samoa on his return within a reasonably foreseeable future.

26. I have no independent evidence before me to suggest that the government discriminates in employment or denies employment to ethnic Samoans.  The applicant has been working in Australia and developing skills. Therefore I am not satisfied that there is a real chance that the applicant will suffer serious harm for reasons of a lack of employment opportunities in Samoa on his return within a reasonably foreseeable future.

27. 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 the Solomon Islands, within a reasonably foreseeable future.

28. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

29. I am required to assess if the applicant will suffer significant harm on his return to Samoa within a reasonably foreseeable future.

30. The applicant is an ethnic Samoan who has not made specific claims for complementary protection separate from those put forward in relation to refugee criteria.

31. As stated above, I am satisfied that the applicant did not suffer serious harm in Samoa and came to Australia in order to earn an income.

32. The applicant has claimed that life in Samoa is difficult, living in a village, he has been stressed and worried about the social stigma he will face from fellow villagers given his inability to financially provide for his family as the oldest son and comments have been made. I accept the applicant does not want to return to Samoa because he wants to earn sufficient money to build a house. I am not satisfied that feeling stressed or worried about the social stigma from villagers amounts to inhuman or degrading treatment or punishment.

33. Nor do I accept that a lack of employment opportunities in Samoa amount to significant harm because a lack of employment opportunities affect all Samoans and does not amount to inhuman or degrading treatment or punishment.

34. Therefore, having considered the applicants' circumstances singularly and cumulatively, I do not accept on the evidence before me, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Samoa, there is a real risk that he will be arbitrarily deprived of life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.

35. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

    Conclusions

36. 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).

37. 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).

38. 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

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

    Lilly Mojsin
    Member

    
    

    ANNEXURE A

40. 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.

41. 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.

42. 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).

43. 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.

44. 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

45. 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.

    …