2401267 (Refugee)

2401267 (Refugee) [2024] AATA 2424 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2401267

COUNTRY OF REFERENCE: Samoa
MEMBER:Lilly Mojsin
DATE:9 May 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 May 2024 at 2:10pm
CATCHWORDS
REFUGEE – protection visa – Samoa – religion – Christian – opposition for changing denominations – fear of physical assault – reverting to family’s church – access to land – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 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, applied for the visa on 20 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 28 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection in his Protection Visa Application stated:
·     There is no specific person who is threatening but the whole family who have made remarks and threats to never set foot in Samoa because he brought disgrace to the family
·     He will not be forgiven by his family because he will not go back to the Methodist church. He will be beaten up by immediate and extended families if he returns home. He will be punished and have nowhere to go. They have already burned his belongings
·     He will be stripped of all rights to lands and chiefly titles. The caused of all those things because they will not be satisfied he changed his belief. They said he will bring disgrace to the family and also he set up a bad example to others.
·     The applicant ended up ‘offering their life to Jesus’ after an hour discussion with a teenage boy who shared on the goodness of God and salvation of Chris with them. The applicant met this person when he went shopping at the [named shopping centre].
·     The applicant claims to attend the [Church 1] and is a deacon at the church. The applicant volunteered at the church fundraisings at the [local venue] every Saturday, joined the Evangelism Ministry and attended church service every Sunday morning and evening.
·     The applicant’s family church in Samoa is Methodist Church at [Village 1] Samoa.
·     He knows the difference of the teachings in both religions. He spent 20 years in the Methodist church but it felt meaningless. But now his life has changed. He was addicted to alcohol and now after he ‘felt the touch of God in his life’, he has not drunk any alcohol for 7 months.
·     His family would not allow anyone to convert to another religion and when he returns he will be beaten and would not have the right to stay because he will not have the identity that he belongs to the family.
·     He would not be able to resolve the conflict with his family because he would not return to the Methodist church.
·     There is no assistance to seek protection for people like the applicant in Samoa and issues like this are dealt within the family and not the government.
At the Tribunal hearing the applicant stated that he is single, divorced since 2018. He has one [child] in Samoa. He came to Australia on the Pacific Islander Scheme and he did not leave Samoa fearing harm.
His protection visa form was filled out by an agent, [named]. I asked him if it was filled out in accordance with his instructions and he said that she wrote exactly what he told her to write.
I asked why he does not want to return to Samoa and he said that he came here and changed his church, his extended family in Samoa are not happy about that. He does not have immediate family in Samoa, parents are deceased and his [siblings] are in Australia and New Zealand. I put that he has a [child]. He said that [this child] is almost [age] years old and lives in [Village 2]. He came from another village. The applicant said that there is no family home now, it is being used by the extended family. They have a village chief who made the decision. I asked if he wanted to go back to live in his village home and he said his cousins are still living there. He needs to seek approval from the family. There is a mixture of different families in the villages.
When he lived in Samoa he was a Christian Presbyterian. I asked if everyone was the same religion he said no. I asked why anyone would threaten him if he changed from one Christian denomination to another and he responded that his cousins ring him from Samoa and they ask why he changed the church. His brother is a pastor in his new church and they got angry with both of them. I asked if anything happened to his brother when his brother went back and he said nothing happened, but they did not know he was back. He went to visit a different village [details deleted].
I put to the applicant that the Samoan constitution provides for the right to choose a religion, to practice a religion and to change one’s religion. I put that police protect the citizens, there is an Ombudsman and an independent judiciary. The applicant agreed.
He fears his cousins might come and punch him as they are all believers. Their extended family rules are to retain the same faith. I put there are a lot of conversions in Samoa to new religions that are expanding. He said that this is just a rule within his family.
The applicant said that the village chief is part of their family and he makes the family decisions. He is only worried about his cousins punching him. His father was Methodist, his mother Presbyterian. He lived in his father’s village. The applicant then said that both his parents came from the same village and the families were different religions.
I asked what the difference was between the two faiths and he said there was no difference, but his family keeps to one church.
I asked the applicant if the [Church 1] where he now belongs has a church on his island and he said no. I asked if he was to go back to Samoa will he return to the Presbyterian church. He said that he will go back to the Presbyterian church on his return. He said they may be still angry and maybe they will punch hm. He agreed that he can go to police.
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.
The September 2016 joint Pacific Community and United Nations Office of the High Commissioner for Human Rights (OHCHR) report[2] provided the following information regarding the Samoa Police Service:
‘The Samoa Police Service, commanding 500 officers, is responsible for the enforcement of law and order, the preservation of peace, and the protection of life and property. The Samoa Police Service has also provided officers for regional and international peacekeeping efforts.’
[2] 'Human Rights in the Pacific: A Situational Analysis', Pacific Community and the United Nations Office of the High Commissioner for Human Rights (UNOHCHR), 15 September 2016, p.107
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.
In 1962, Samoa became the first Pacific island country to achieve independence. The constitution[3] 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.
[3]
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.
In its United States Country Report on Human Rights in Samoa for 2022, reports:
‘The national police, under the Ministry of Police, Prisons, and Correction 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 US Overseas Security Advisory Council (OSAC)[4] reported the following in October 2021 in relation to the Samoan police force:
‘The professionalism of the Samoan police is above average in comparison with neighboring (sic) Pacific islands. Local chiefs deal with minor crimes;
[4] 'Samoa Country Security Report 9 June 2023', Overseas Security Advisory Council (OSAC), 09 June 2023
The August 2021 joint Pacific Community and United Nations UN OHCHR report provides the following in relation to the judiciary:
‘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. Article 66 of the Constitution lays down the establishment of the Supreme Court, which consists of the Chief Justice, who is also the principal judicial officer and responsible for its administration, and a number of Supreme Court Judges presiding in the Supreme Court. The Court of Appeal has jurisdiction to hear and determine all appeals from any judgment, decree or order of the Supreme Court, whether civil or criminal, and touches on matters involving a substantial question of law as to the interpretation or effect of the constitution. In 2014, a Family Court was established as a division of the District Court to provide protection and recourse for victims of family violence.
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.
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 not a national or citizen of any other country or that he 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 that the applicant did not suffer serious harm in Samoa and came to Australia in order to earn an income.
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, and I accept, that since his arrival in Australia he has changed his religion and now attends [Church 1], where he is a Deacon. His [sibling] is a Minister of this Church. The applicant claims that he fears harm from his family because he changed his religion but that on his return to Samoa he would revert to the family faith, Presbyterian.
Additionally, the applicant claimed at the Tribunal hearing that his former family home was being used by his family, his cousins, since his departure from Samoa, and he would need to ask the Chief of the Village, his relative, to return to that home. The applicant did not claim he would suffer any harm in regard to returning to his home.
At the Tribunal hearing, the applicant stated that his immediate family are in Australia or New Zealand and he only has cousins in the village where he grew up in Samoa. It is the cousins who are threatening to harm him, punch him, about his change of religion. The applicant himself grew up with a mother who was Methodist and a father who was Presbyterian. As the applicant and his cousins are Presbyterians and he would return to that faith, I do not accept that he was a Methodist for 20 years would not be able to resolve the conflict with his family because he would not return to the Methodist church. I also do not accept as plausible that the family would threaten or physically harm him, if he returned to the Presbyterian religion. As for his fear of being punched I accept were the applicant to be punched it does not amount to serious harm as detailed by s.5J(5).
Therefore I do not accept that the applicant will be harmed for his religion on his return to Samoa. I also do not accept that the applicant would be punished and have nowhere to go or that he will be stripped of all rights to lands and chiefly titles or he will be beaten and would not have the right to stay because he will not have the identity that he belongs to the Presbyterian family, as he claimed at hearing that he will return to the Presbyterian 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 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 came to Australia in order to earn an income.
The applicant’s claims for complementary protection are the same as those put forward in relation to his refugee claims. I am satisfied he will not suffer serious harm at the hands of his family.
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 2424

9 May 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction