2401624 (Refugee)

[2024] AATA 3111

2401624 (Refugee) [2024] AATA 3111 (30 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2401624

COUNTRY OF REFERENCE:                   Samoa

MEMBER:Wayne Pennell

DATE:30 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 30 April 2024 at 4:06pm

CATCHWORDS

REFUGEE – protection visa – Samoa – no Convention nexus – economic conditions – employment – delay in applying for protection – return visit to Samoa – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 420, 424-426, 441, 499
Migration Regulations 1994, Schedule 2

CASES

ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

   [1]The delegate’s decision of 31 January 2024.

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

   [2]The applicant’s application was received by the Department on 6 September 2023..

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

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

3. The applicant filed an application with the Tribunal to review the delegate’s decision (‘review application’).[5] On 22 March 2024, the Tribunal dispatched an email to her nominated email address a letter advising that it had considered all the material before it relating to the review application but it was unable to make a favourable decision on that information alone. She was invited (‘hearing invitation’) to give oral evidence and present arguments at a hearing scheduled on 30 April 2024.

   [5]The applicant’s review application was filed with the Tribunal on 1 February 2024.

   CRITERIA FOR A PROTECTION VISA

4. The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.

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

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

5. The Act provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

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

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[9] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[10]

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

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

7. The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[11] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in the Act, which are extracted in the attachment to this decision.[12]

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

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

8. If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[14] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are expressly provided in the Act, which are extracted in the attachment to this decision.[15]

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

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

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

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

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

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

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

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

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

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

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

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

    MANDATORY CONSIDERATIONS

13. In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    BACKGROUND AND APPLICANT’S EVIDENCE

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

    Background, application and claims

14. The applicant’s migration history held by the Department shows that she has visited Australia twice. Those occasions were June 2021 and July 2023. For completeness, the following information from her migration history is relevant.

DATE	EVENT
09 June 2021	Granted a Temporary Work (International Relations) visa (subclass 403) (‘work visa’). This visa was valid until 15 March 2022. A work visa allowed the applicant to work in Australia under the terms and conditions of a bilateral agreement between the Australian Government and the Samoan government.
[June] 2021	Arrived in Australia.
26 March 2022	Granted a Bridging visa. This visa was valid until 25 October 2022.
25 October 2022	Granted a Temporary activity visa (subclass 408). This visa was valid until 25 October 2023. This type of visa relates to specific types of work on a short term, temporary basis.
[July] 2023	Departed Australia and returned to Samoa.
[July] 2023	Arrived in Australia.
06 September 2023	Lodged application for a Protection visa.
07 September 2023	Granted a Bridging visa in conjunction with her Protection visa application.

1. Upon lodging her application with the Department on 6 September 2023, the Department acknowledged receiving her application by dispatching to her email address a letter on 7 September 2023. In that letter, the Department advised her that she could provide additional information to the Department relating her claims and instructions were provided as to how she could go about providing that information. As of the date of the delegate’s decision, the applicant has not provided any additional information in relation to her claims and nor had there been any evidence that she attempted to contact the Department to provide any further information about her claims.

2. Extracted from the applicant’s Protection visa application and inserted below are the claims she expressed as to why she has a well-founded fear of persecution if she returned to Samoa.

Provide reasons why this applicant left that country or those countries:

I am currently residing in Australia on a work visa, having come here from Samoa. I respectfully request consideration for a protection visa to stay in Australia due to the severe and life altering challenges I will undoubtedly face if I return to my home country. In Samoa, I am confronted with an uncertain future characterized by high poverty, unemployment, and the  inability to return to my family home. My family there is unable to support me due to their own financial struggles, further exacerbating the situation. These circumstances would not only limit my opportunities for personal growth and stability but place me in an environment where basic sustenance and safety could be at risk. I am committed to abiding by all the  regulations and contributing positively to the Australian community. I deeply appreciate the consideration of my circumstances and hope to find a  solution that recognizes the hardship and challenges that returning to Samoa would impose on my life

Did this applicant experience harm in that country or those countries?

No

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

No

Give details for why this applicant did not try to move to another part of the country or those countries.

at the time of being in Samoa i was able to come to australia on a work visa so i did not try to move.

Explain what the applicant thinks will happen to them if they return to that country or those countries:

Returning to Samoa will definitely put my mental and physical wellbeing at risk, as well as put my children's up bringing into jeopardy

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

Yes

Give details including:

• the type of harm or mistreatment this applicant is likely to experience

• the person/people who would be responsible for the harm or mistreatment

• why they would harm or mistreat this applicant.

I fear the mental stress i will go through if i return to Samoa and I also am afraid of possible abuse from fellow Samoan's who may treat me unfairly now because of my current living conditions.

Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

No

Give details about why this applicant thinks the authorities could not, or would not, protect them.

the authorities in Samoa are not able to provide me with any living conditions nor can they help me financially

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

No

1. After assessing the applicant’s application, the delegate came to a decision that to satisfy the criterion for a protection visa in section 36(2)(a) of the Act, an applicant must be a non-citizen in Australia in respect of whom a decision maker is satisfied Australia has protection obligations because the person is a refugee. A ‘refugee’, as defined in section 5H(1) of the Act, is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The meaning of ‘well-founded fear of persecution’ is set out in section 5J of the Act and includes a requirement in section 5J(1)(a) of the Act that the ‘person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’.

2. It was also the delegate’s findings that the applicant’s claim that she would be unemployed if she returned to Samoa, and will not be able to support herself, or her family did not relate to any of the reasons in section 5J(1)(a) and there had been no other information before the delegate to suggest that the applicant would be subjected to harm upon her return to Samoa for one or more of those reasons. Therefore, the delegate was not satisfied that the applicant had a well-founded fear of persecution because she did not fear being persecuted for reasons of their race, religion, nationality, membership of a particular social group or political opinion as required by section 5J(1)(a) of the Act. The delegate was not satisfied that the applicant was a refugee as defined in section 5H(1) of the Act and accordingly found that she was not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

3. In respect to the alternative criteria (complementary protection), the delegate identified the applicant’s claims that if she returned to Samoa she would experience unemployment, and will not be able to support themselves, their family, or maintain their livelihood. The delegate also identified that the applicant had not claimed that she would be arbitrarily deprived of her life, the death penalty will not be carried out on her and she would not be subjected to torture. Nor was there any evidence that she would experience ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. For those reasons, the delegate was not satisfied that the economic hardship the applicant claims she would face amounts to ‘significant harm’ under section 36(2A) of the Act.

   REVIEW APPLICATION – HEARING

4. On 1 February 2024, the applicant lodged her application with the Tribunal to review the delegate’s decision (‘review application’). When lodging her review application, she also provided the Tribunal with a copy of the delegate’s decision record and the Department’s letter to her advising that her application for a Protection visa had been refused. It is also observed by the Tribunal that at the time of completing and lodging her review application with the Tribunal, she nominated that there was no representative appointed to act on her behalf and that the Tribunal’s correspondence should be sent to her. She provided the email address [specified] and this is the same email address she provided when she lodged her Protection visa application with the Department.  

5. On 15 February 2024, the Tribunal dispatched an email to the applicant’s nominated email address and enclosed a letter of acknowledging receiving her review application. In that letter, the applicant was advised that it was important that she:

   ·tell the Tribunal immediately if she changed her contact details (such as her residential address, mailing address, telephone number, fax number or email address). If she has a representative or authorised recipient, it is also important that she inform them of any change in her contact details. If she did not, she might not receive an invitation to a hearing or other important information and her case may be decided without further notice;

   ·tell the Tribunal immediately if her personal circumstances change and this is relevant to the review of the decision;

   ·use her case number 2401624 when she contacts the Tribunal.

6. She was also advised that if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible. Notwithstanding that advice, she has not provided the Tribunal with any evidence, material or written arguments to support her claims and nor had she provided any information to suggest that her personal or contact particulars had changed. Apart from a phone call she made tom the Tribunal on the day prior to the scheduled hearing, she has engaged with, or communicated anything to the Tribunal since lodging her review application. The specifics of that phone call are discussed later in these Reasons.  

7. On 22 March 2024, the Tribunal wrote to the applicant advising that it had considered all the material it had about her application but could not make a favourable decision on that information alone. The Tribunal invited her to give evidence and present arguments at a hearing scheduled to be held on 30 April 2024, commencing at 1:00pm. The invitation stated that if she did not attend the hearing, the Tribunal may make a decision on her case without further notice. She has never responded to that invitation.

8. Leading up to the scheduled hearing, the Tribunal sent an SMS reminder to the applicant’s mobile telephone about the hearing. The SMS reminder was sent on 29 April 2024, which is one business days prior to the hearing.[21] That SMS reminder outlined:

   Reminder - Your AAT hearing is on 30/04/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

   [21]SMS hearing reminder was sent to the applicant’s nominated mobile number at 11:36am.

1. At approximately 3:45pm on the afternoon the SMS reminder was sent to her, the applicant telephoned the Tribunal and spoke to a member of the Tribunal’s staff. She said that she only learnt about the hearing from receiving the SMS reminder. She was reminded about the hearing invitation emailed to her on 22 March 2024, and her response was to say that she had not been aware of the letter as her application had been lodged with the Tribunal by her representative who provided a different email address. The Tribunal does not accept that explanation because when her review application was lodged, her private email was indicated as the point of contact for all of the Tribunal’s correspondence. There is no record of the applicant having a representative, and when considering that the hearing invitation was sent to her private email address on 22 March 2024, the Tribunal is satisfied that she was invited to the hearing in accordance with the provision of the Act.

2. When the scheduled hearing was to commence, the applicant did not appear before the Tribunal. Consequently three telephone calls were made to her nominated mobile telephone number, being:

   1:00pm.The Tribunal telephoned the applicant. She did not answer and the call rang out before diverting to her voice mail. No message was left.

   1:15pm.The Tribunal telephoned the applicant. She did not answer and the call rang out before diverting to her voice mail. A message was left for her to contact the Tribunal as soon as possible on the Tribunal’s phone number of 07 3052 3000.

   1:29pmThe Tribunal telephoned the applicant. She did not answer and the call rang out before diverting to her voice mail. No message was left.

3. Although a considerable explanation has been outlined in these Reasons as to the events leading up to the scheduled hearing, the purpose of the explanation is to give a background of the proceedings and the Tribunal’s decision in this matter is not influenced by those events.

4. Having reviewed the Tribunal’s file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with section 441A(5) of the Act, and she had not returned the invitation to the Tribunal, and as already indicated in these Reasons, prior to the scheduled review hearing an SMS reminder was sent to the applicant to remind her about the hearing. In those circumstances, the Tribunal is satisfied that the applicant was invited under section 425 of the Act to appear before the Tribunal and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   APPLICANT’S BACKGROUND AND CLAIMS

   Background

5. The applicant is from Samoa. Because she has not engaged with the Department or the Tribunal, very little is known about her personal circumstances other than what is contained within her application.

6. Her application suggests that she was married, and she has nominated that both her parents are living in Samoa. She also indicated within her application that her husband in living in Samoa, as does her [number] children, all aged [age range]. She described that she had [number] siblings also living in Samoa, although in a slightly confusing way she indicated that two of those siblings were born on the same day as the applicant. The Tribunal is unsure whether that was a typographical error or the applicant is part of triplets. Because the applicant failed to appear at the hearing, this could not be clarified with her.  

7. In respect to her education, she nominated in her application that she attended primary school [between specified years], and then attended a girls college [between specified years]. She then  completed her school education in [year] before attending the Samoa university in [year]. She disclosed that she had not been employed when she lived in Samoa.  

   DELAY IN LODGING APPLICATION

8. An important issue for consideration in this matter is the delay between when the applicant first arrived in Australia to when she lodged her application for a Protection visa. Her migration history held by the Department reveals that she first arrived in Australia [in] June 2021 subject to the provisions of a work visa. She remained in Australia for a little over two years and then returned to Samoa [in] July 2023, however she only remained in Samoa for [number] days before then returning to Australia [later in] July 2023. After a passage of a further six weeks, she then lodged her application with the Department. 

9. The Tribunal is aware that a delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible and the significance of any delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[22]

   [22]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346: Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998.

10. Upon review of the Department’s file, the Tribunal is satisfied (and so finds) that after having arrived in Australia [in] June 2021, she stayed in Australia before returning to the very place that she is at risk of harm should she return. She remained in Samoa for [number] days, and as her applicant says, she did not experience any harm in Samoa. When a close examination is applied to the time line just explained, the Tribunal is satisfied that notwithstanding her return to Samoa for [number] days, her application for a Protection visa was made approximately two years and two months (26 months) after she first arrived in Australia.

11. The Tribunal has given careful consideration to the delay of 26 months between her arrival in Australia to when she made her application for a Protection visa, and the Tribunal is satisfied (and so finds) that under the circumstances relating to the features of this case, that delay is a significant delay. In respect to any consideration given by the Tribunal about that significant delay, guidance is found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 (‘Subramaniam‘) where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.

12. The applicant has not explained that significant delay, and when considering the nature of the claims made, along with the timing of her application as it is associated with the expiry of her work visa, the Tribunal is not satisfied as to genuineness or depth of her claimed fear of persecution should she return to Samoa. Therefore, the Tribunal is satisfied (and so finds) that the significant delay can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm because a significant delay is not behaviour indicative of someone who fears for their physical safety.[23]

    [23] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

    COUNTRY INFORMATION

13. Available for the Tribunal’s consideration is credible and reliable country information relating to the economic situation of Samoa, and whether the state (the government) is able to protect its citizens from serious harm.

    Economic situation in Samoa

14. When turning to the available country information relative to those economic claims, the Tribunal has considered the following reliable and credible country information about Samoa in regard to that country’s economy. This information is relevant to an assessment in respect to the applicant’s claim that should she return to Samoa, there is a likelihood of her experiencing unemployment, and she will not be able to support herself or her family, or maintain her livelihood.

15. Had the applicant attended the scheduled review hearing, the country information would have been outlined and described to her pursuant to section 424AA of the Act. Clear particulars of the country information would have been provided to her and the Tribunal would have ensured, as far as was reasonably practicable, that she understood why the information was relevant to the review, and the consequences of the information being relied by the Tribunal in affirming the delegate’s decision. She would also have been invited to comment on or respond to the information. Because she failed to engage with the Tribunal, that information could not be discussed with her.

16. The country information provides that Samoa is one of the most developed and connected of the Pacific Island economies and is the second largest economy in the Pacific, most industrially advanced, and the centre for re-exports. Tourism is the main engine of growth contributing about 40 per cent of GDP and a key source of foreign exchange earnings from Samoans working abroad representing the country’s largest foreign exchange earners.[24]

    [24]The World Factbook - Samoa, Central Intelligence Agency, 12 December 2016; Bang for buck: Getting the most out of Pacific Islander remittances, Collins J, The Interpreter, 18 January 2022, accessed 11 April 2024.

17. After nearly a decade of consecutive growth, averaging 3.7 per cent for the period of 2010 to 2018. The economy contracted in 2019 owing to domestic fiscal and monetary policy tightening and a downswing in global trade and a combined impact of COVID-19 and three tropical cyclones deepened the contraction to 22.1 per cent (cumulative) during 2020−21 and exacerbated pre-pandemic fiscal vulnerabilities. The reopening of international borders in December 2021 has spurred economic recovery and employment. Prior to the COVID-19 pandemic, Samoa had a poverty rate of 24.1 per cent in the period of 2019 to 2020 as defined by the national standards of living. The 2019 to 2020 Household Income and Expenditure Survey (HIES) estimated the incidence of extreme poverty at 1.3 per cent, which is on par with other Upper Middle-Income Countries (UMICs).[25]

    [25]Macro Poverty Outlook, Country-by-country Analysis and Projections for the Developing World, International Bank for Reconstruction and Development / The World Bank, 2023, pages 12 to 13, accessed 11 April 2024.

18. Samoa’s economy has expanded by 18.6 per cent in 2022. This is driven by a 71 per cent resurgence in total tourist arrivals compared to 2019 levels, particularly from Australia, New Zealand, and the United States of America. By the end of July 2023, arrivals had reached 101 per cent of the July 2019 figures. This growth is accompanied by an increase in investment and consumption activities, as evidenced by the rise in new consumption loans and remittances. The double-digit recovery is primarily driven by services-related sectors, including accommodation, transportation, wholesale trade, and finance. Economic recovery is estimated to have reduced poverty by UMIC standards and annual inflation was sitting at 3.1 per cent in 2022 due to low prices of alcoholic beverages and food items which had decreased to 0.3 per cent in July 2023 on account of lower fuel and kava prices. [26] 

    [26]Macro Poverty Outlook, Country-by-country Analysis and Projections for the Developing World, International Bank for Reconstruction and Development / The World Bank, 2023, pages 12 to 13, accessed 11 April 2024.

19. The economic outlook for Samoa is that the GDP is projected to grow by 7.7 per cent and by 2023 it was expected to surpass its pre-pandemic level if tourist arrivals reach 95 per cent of the 2019 level. It is expected to remain above three per cent over the medium term, assuming a complete recovery in tourism. The revival of the tourism sector and remittances is expected to have a positive impact on the poorest 40 per cent. The current account deficit is projected to decline over the medium term from 9.7 per cent of GDP in 2023 to 7.3 per cent in 2026 on account of higher tourism earnings and remittances. The new Samoan Government is supportive of fiscal consolidation and has already begun preparing a new national development plan, set to be finalised before the FY25 Budget. In the medium term, the Government is expected to maintain a prudent fiscal policy, improve public financial management, and implement growth enhancing reforms.[27]

    [27]Macro Poverty Outlook, Country-by-country Analysis and Projections for the Developing World, International Bank for Reconstruction and Development / The World Bank, 2023, pages 12 to 13, accessed 11 April 2024.

20. In respect to the applicant’s claims relating to the economic situation within Samoa, although she said that she faced an uncertain future characterised by high poverty and unemployment, the Tribunal is satisfied that greater weight should be placed upon the credible country information as opposed to the uncorroborated and unsubstantiated claims made by the applicant. The Tribunal is satisfied (and so finds) that in the absence of any supporting evidence, no weight should be attributed to what she claims about her experiencing economic hardship. She indicated that her husband lives in Samoa, yet she provided no information about whether he is employed or that he contributes to the household finances and expenses

    State protection

21. The applicant claims that does not think that the Samoan authorities could protect her from harm. She described that the authorities are not able to provide her with any living conditions not can they help her financially. It appears from what she is saying in her application is that if she returned to Samoa, then she fears that she will experience ‘mental stress’ and possible abuse from fellow citizens who may treat her unfairly. It is notes that this claim is vague, it lacks clarity and very non-specific in how she would be harmed because of her living conditions.  

22. The country information available to the Tribunal shows that the Samoa Police Force is generally seen as capable and impartial, although there have been historical reports of members of the force being involved in the adverse treatment of opposition activists. Samoa has a police-to-population comparable to Australia, and its police force has been assessed as being among the more capable in the Pacific[28] and is considered to be a generally professional law enforcement organisation, albeit under-resourced.[29]

    [28]The DFAT Country Information Report, Samoa, 27 September 2017, page 27, paragraph 5.8.

    [29]Samoa 2018 Crime & Safety Report', Overseas Security Advisory Council (OSAC), 26 June 2018, p.[8]

23. The Samoa Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Samoa police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’. Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve. Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies. The Samoa Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[30] 

    [30]The DFAT Country Information Report, Samoa, 20 May 201 2022, pages 22 to 23, paragraphs 5.6 to 5.10.

24. When an assessment is undertaken of the country information and then weighed against those claims made by the applicant about the Samoa government and police not being able to protect its citizens, so far as the country information available to the Tribunal is concerned, the Tribunal is satisfied that greater weight should be placed upon the credible and reliable information about Samoa’s ability to protect its citizens as opposed to the uncorroborated claims made by the applicant.

    CONCLUSION AND REFUGEE FINDINGS

25. At first blush, when the claims are relied upon are examined, a significant feature is that they relate specifically to the applicant’s economic circumstances. In so far as to whether she meets the criteria of a refugee as provided under the Act, the claims appear vague, they are ambiguous and they lack specificity. Despite opportunities provided by both the Department and the Tribunal, she has not provided any evidence, information or material to support the claims she makes. The only evidence she relies upon is what was inserted into her application for a Protection visa.

26. The very nature of a review hearing before the Tribunal is that the hearing is conducted from the beginning (anew) and the Tribunal is to review the material, information and evidence made available to it. The Tribunal is to consider all of that material, information and evidence afresh and make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Tribunal is not bound by technicalities, legal forms or rules of evidence; and must act according to substantial justice and the merits of the case.[31]

    [31]Migration Act 1958 (Cth), s 420.

27. Although the very nature of a review hearing is inquisitorial, and the Tribunal can seek out evidence it requires in order to reach a determination, however it has no obligation to seek out evidence to support the applicant’s claims, even though the Tribunal is entitled to do so.[32]

    [32]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

28. The Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish her claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of her claims, or to establish or assist in establishing her claims.[33] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[34]

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

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

29. The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because she claims that she will 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 the statutory elements are made out.

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

2. The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Samoa, there exists a real risk that she will suffer significant harm or there is a real chance she would suffer serious harm because of the economic circumstances of Samoa. .  

3. The applicant has been given the opportunity by both the Department and the Tribunal to provide all of the details of her protection claims. The application form that she completed informed her that she should provide all of her claims for protection and all documentation or other evidence to support her claims. On 7 September 2023, the Department sent a letter to the applicant acknowledging receiving her valid application. In that letter she was advised that she could provide additional information relating her claims, and she was advised how she could provide this to the Department. When she filed his review application with the Tribunal, the Tribunal wrote to her on 15 February 2024 and advised that if she wished to provide material or written arguments for the Tribunal to consider, then she should do so as soon as possible. She has provided no material, information or evidence to either the Department or the Tribunal.

4. In respect to the applicant’s claims, it is noted that the claims she relies upon relate specifically to her coming to Australia on a work visa, and if she returns to Samoa she will likely experience unemployment, and will not be able to support herself. The Tribunal finds that economic hardship does not fall within the ambit of ‘persecution’ as defined in section 5J(1)(a) of the Act in that she has a well-founded fear that if she returns to Samoa she will be persecuted because of her race, religion, nationality, membership of a particular social group or political opinion.

5. After careful consideration of all the material available, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as she does not fear that if she returns to Samoa she will be persecuted for any of those reasons prescribed in section 5J(1)(a) of the Act. Therefore the Tribunal is not satisfied that she is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that she is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

   COMPLEMENTARY PROTECTION CONSIDERATIONS

6. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[35] the Tribunal has considered the alternative criterion.[36] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Samoa, there is a real risk that she will suffer significant harm as it is defined in the Act.[37]

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

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

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

7. Significant harm is defined within section 36(2A) of the Act that a person will be arbitrarily deprived of his or her life; the death penalty will be carried out on that person; the person will be subjected to torture; the person will be subjected to cruel or inhuman treatment or punishment; or the person will be subjected to degrading treatment or punishment.

8. Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that she will suffer significant harm if returned to Samoa. The Courts have adopted the principle that the test for ‘real risk’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[38]

   [38]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

9. Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[39] The question of ‘real chance’ is the test to be applied on an application for a protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[40] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[41]

   [39]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.

   [40]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.

   [41]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

10. When carefully assessing the claims made by the applicant, the Tribunal is not satisfied the harm the applicant fears could constitute either of the forms of significant harm as defined in section 36(2A) of the Act. The Tribunal particularly notes that when a careful assessment is made of the information before the Tribunal, the applicant has not claimed that she will be arbitrarily deprived of her life, the death penalty will be carried out on her or that she will be subjected to torture. Nor is there any information before the Tribunal to indicate that she would suffer any of these forms of ‘significant harm’ in section 36(2A)(a)-(c) of the Act if she returned to Samoa.

11. The Tribunal has also given careful consideration to whether the harm she claimed she feared could constitute either of the other forms of significant harm in section 36(2A)(d)-(e) of the Act, that is ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. Both of these forms of significant harm are defined in section 5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and be intentional. The ordinary meaning of intention implies a plan or aim and the High Court found that intention requires a perpetrator to have an ‘actual, subjective, state of mind’.[42] The Tribunal is aware that there is no information provided by the applicant to show that there will be a perpetrator of any harm to her and therefore there is no actual, subjective state of mind, meaning there will be no intention to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment). For those reasons, the Tribunal is not satisfied that the economic hardship the applicant claims she would face amounts to ‘significant harm’ under section 36(2A) of the Act.

    [42]SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34, [27].

12. The Tribunal’s observations of her claims are that the real risk she claims which would cause her to suffer significant harm is one of economic hardship and being exposed to having limited opportunities for employment. The Tribunal is therefore satisfied (and so finds) that these claims are something which is faced by the population of Samoa generally and is not specifically targeted towards the applicant and it is not a situation whereby she is specifically the only person who faces this personally.[43]

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

13. Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returns to Samoa now or in the reasonably foreseeable future she will be arbitrarily deprived of life, the death penalty will be carried out on her, or she will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will she be subjected to degrading treatment or punishment.

    CONCLUSION: REFUGEE CRITERION

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

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

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

    OVERALL CONCLUSION

16. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.

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

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

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Wayne Pennell

    
    

    Senior Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …