2402015 (Refugee)

2402015 (Refugee) [2024] AATA 2512 (18 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402015
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Gabrielle Deal
DATE:18 June 2024.
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 June 2024 at 3:17pm
CATCHWORDS
REFUGEE – protection visa – Samoa – participant in activity – fights after activity events – passage of time and no enduring public profile – father in family dispute about will and land – applicant’s fear of harm from one relative, associated with a specified person – applicant not directly involved or not harmed, and dispute now largely resolved – reintegration and employment – delay in applying for protection – members of family unit – de facto partner from another territory and young child not registered and claimed to be stateless – country information – child may have gained citizenship automatically, and will probably be registered in due course – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 19 January 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants comprise a man (the applicant) and his de facto partner, who claim to be citizens of Samoa and American Samoa, respectively, and their young son who claims to be stateless.[1] The applicant arrived in Australia [in] October 2016, his de facto last arrived in Australia in 2010, and their son was born in Australia in [Year]. The applicants applied for the protection visas on 22 August 2023.
[1] While the applicant’s de facto and son are joint applicants they are not making their own claims for protection and instead rely on the applicant’s claims and their membership of the same family unit.
On 19 January 2023 the delegate refused to grant the protection visas. While the delegate accepted the applicant was a professional [activity participant] who travelled to Australia to [take part in an event] and that there might have been physical fights in Samoa after [events] on occasion, the delegate found the applicant had not [done the activity] for years and did not accept he had an enduring profile of interest in this regard in Samoa. The delegate appeared to accept the applicant’s father may have had a long-running family dispute related to a will but noted the applicant was not subjected to harm in relation to this and did not accept it concerned the applicant directly or personally. The delegate appeared to accept an extended family member may have been [an employee] for a [specified person] at one point but did not find this connected to the applicant’s claims. The delegate did not accept the applicant had any political profile in Samoa based on his brief evidence. The delegate also noted the applicant arrived in Australia in 2016 and did not apply for the protection visa until some 7 years later in 2023 and did not accept the various explanations for this delay as adequate in circumstances where the applicant claimed to fear for his life or safety in Samoa. Overall, the delegate found the applicants did not meet the relevant definition of refugee, did not face a real risk of significant harm, and were not persons in respect of whom Australia had protection obligations.
At the review stage, the applicants provided the Tribunal with a copy of the delegate’s decision.
The applicants appeared before the Tribunal on 5 June 2024 to give evidence and present arguments[2]. While the son attended the hearing, he is only about [Age] years of age and did not provide any oral evidence.
[2] At hearing the applicant and his de facto said that they had a lawyer, the same lawyer who had assisted them at the primary stage, but that their lawyer would not be attending the hearing because they could not afford to pay her to attend the hearing.
At hearing it was noted that a number of hyperlinks (seemingly to stories and videos on social media showing a number of assaults, generalised violence, and related to the applicant’s [relative]’s claimed work as [an occupation]) required the reader to login to an account to access them or appeared broken and that this material was therefore unable to be accessed by the Tribunal. They were advised that if they wished for the Tribunal to have regard to these documents in making its decision, they would need to provide the Tribunal with electronic copies or readily accessible links and were given until 11 June 2025 to do so. No such copies or links have been provided to the Tribunal to date.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
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.
CLAIMS
The applicant’s de facto and son rely on the applicant’s claims and the applicants rely on their membership of the same family unit.
The applicant’s claims can be summarised as follows:
·He is from [Location], Samoa, and in his [age range]. He grew up in the family home in [Location], and they were poor. After completing high school, he worked in various capacities including as [occupations]. He has [brothers and sisters]. His father and mother and [one] brother live in the family home in [Location]. [One brother] lives with his own family in [Country 1]. His [sisters] have been in [Country 1] but are returning to Samoa shortly. [Another] brother lives in American Samoa because his partner is there.
·He travelled to Australia in 2016 with his [activity group] to [take part in an event]. He subsequently [did the activity] for a couple of years in Australia.
·In May 2017 he met his now de facto who also [did the activity] at that time. They have been in a de facto relationship since. He has not worked or studied in Australia. They have moved about in Australia, and currently live with his de facto’s family in Melbourne. After [miscarriages] his de facto gave birth to their son in [Year].
·His son, who was born in Australia, is stateless.
·He is well known or has a public profile in Samoa because of his [activity]. Physical fights would break out after [activity events] in Samoa, and he sometimes became involved. He fears harm and being targeted in connection with this.
·He supports the HRPP party and the current party that governs is FAST. He claims this is also an issue.
·He has been involved in a long running family dispute between his father and his father’s siblings regarding a will and some land that was left to his father and his siblings. He fears being harmed in connection with this and does not want to take his family back to this.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant has consistently claimed to be a citizen of Samoa, not to be a citizen of any other country, and to not have a right to reside elsewhere, and based on this and his Samoan passport I accept this and that he is in his [age range]. I consider Samoa the applicant’s receiving country.
The applicant’s de facto has consistently claimed to be a citizen of American Samoa and a [Country 2] National, has provided a copy of her American Samoan passport which shows she was born in American Samoa and is a [Country 2] National in her [age range], and I accept this. She has consistently said she does not want to make any claims of her own and to instead rely on the applicant’s claims and her membership of the same family unit. She has not made any claims for protection of her own. On the evidence I am not satisfied she faces a real chance of harm in American Samoa or [Country 2]. ‘Real chance’ and ‘real risk’ involve the same standard. For the same reasons, I am also not satisfied she faces a ‘real risk’ of significant harm.
The protection visa application shows that the applicant has a large family in Samoa, comprising his mother and father, [brothers] and [sisters]. At hearing the applicant confirmed this explaining that his father and mother lived in the family home in [Location] Samoa, which was where he grew up and had always lived in Samoa. His mother was a housewife, and his father was [an occupation]. He said that one of his [brothers] was living in American Samoa as he had a partner there, and [another brother] had moved to [Country 1] in 2019 and worked in a [workplace 1]. His de facto said that the applicant’s brother was lucky as he “got the quota” for [Country 1] citizenship and that this brother and his family had therefore relocated to live in [Country 1]. The applicant said his sisters had been living in [Country 1] and working with his brother in the [workplace 1] but that they would be returning to Samoa next week and would live in the family home with their father. He said [one] brother still lived with his parents in the family home in [Location] and was attending high school. The protection visa application form also shows that the applicant worked as [occupations] in Samoa after finishing high school which he confirmed at hearing was correct. He said he had not worked in Australia in the past as he did not have work rights but that he had recently secured a work visa and so would start working shortly. The protection visa application indicates the applicant worked at a [workplace 2] in [Country 1] from 2001 until 2011, although his de facto said that that was her and that the dates were wrong, and it appears that some of their details have been confused in the forms. As reflected in the protection visa application form, at hearing the applicant’s de facto said her parents and siblings were [Country 1] citizens and lived in Australia and were applying for Australia citizenship and that she knew the applicant’s family in Samoa. She also said her parents and grandparents were born in Samoa. She has consistently claimed to have lived in American Samoa, [Country 1] and [Country 2] in the past, to have completed high school in [Country 1] and to have worked for [Employer] in [job task], a [workplace 2] in [Country 1], to have completed a Certificate III in [Subject] and to have worked in [work sector] in the past. The protection visa application form also provides details in relation to their son stating he was born in Australia in [Year]. The applicants also claim to be Christian although have articulated no claims in this regard and nor do I consider any arise on the material. They have consistently claimed to have met in 2017, moved in together around that time, and had [miscarriages] before their son was born in [Year]. At hearing the applicant’s de facto said they met through [activity] as she also [did the activity] at that time. When asked if they planned to marry, they said that they did.
Based on the consistency and detail I accept the applicants’ background claims in relation to their address, education and work histories and the information provided in relation to their families and their locations, work, and migration histories. I accept they have been in a de facto relationship for about 6 or 7 years, had their son in [Year] after [miscarriages], and that they intend to marry. As the applicant always lived in [Location] when in Samoa, where he still has family, I consider that if he were to return, he would very likely return to there. The applicant’s claims for protection are couched in a way that indicates if he were to return it would be with his de facto and son, and given the length of their relationship, that they have a son, and intend to marry, I accept this.
At the primary stage the applicant claimed his son was stateless and that they had not yet registered him with the Samoan authorities or obtained a passport for him. At hearing when asked what his claims for protection were, the applicant did not mention this claim. I asked whether they had registered their son and when they said they had not, I asked why. They indicated it was because of the cost. They said they had not been working as they did not have work visas but had recently secured these and would start working soon. When I asked if they were saying that when they started working, which would be soon, that they would register him as a citizen, and they said that that was correct. I noted that under the Samoan Citizenship Act 2004, as the applicant was a Samoan citizen by birth, his son would be a Samoan citizen by descent. I explained that one report[3] indicated that this happened automatically suggesting he would automatically be a citizen on birth. I noted however, that another report[4] suggested they were required to lodge a completed application form, together with the applicant’s birth certificate or passport and their son’s Australian birth certificate and pay the requisite fee which, as at 2018, was $150, and that this could be arranged in Australia. The applicants said they appreciated the provision of this information. On the evidence, I accept as plausible that the applicants will promptly register their son with Samoan authorities prior to any travel to Samoa.
[3] 'Comparative Regional Report on Citizenship Law: Oceania', Anna Dziedzic, Global Citizenship Observatory (GLOBALCIT), 18 February 2020, 20200902084006
[4] Visit World, ‘Obtaining permanent residence in Samoa :naturalisation, duel citizenship, citizenship by investment’ (4 October 2022) < 2023 Country Reports on Human Rights Practices - Samoa', US Department of State, 22 April 2024, 20240423142458.
The hearing in this matter was originally scheduled for 28 May 2024. On the eve of the hearing the applicant’s de facto emailed the Tribunal advising the applicant and their son were ill, had been to the doctor, and had to have blood tests and requested that the hearing be postponed. They provided a medical certificate stating that the applicant had a “medical condition” and would be unfit for the hearing on 28 May 2024. Accordingly, the hearing was postponed. The Tribunal endeavoured to contact the applicants multiple times and left messages, although they did not return the Tribunal’s phone calls. Accordingly, the hearing was re-scheduled for the following week. At hearing it transpired that the Tribunal’s calls had been mistakenly missed. When the applicant was asked what illness he had, he said COVID19. When asked if he felt well enough to proceed or whether he wanted to attend a video hearing on another date he and his de facto declined this offer and said they were able to proceed and that they would like to proceed with the hearing. At hearing the applicant’s symptoms did not appear pronounced and he appeared able to understand and respond meaningfully to the questions put to him.
As was noted at hearing the applicant arrived in Australia in 2016 and did not apply for the protection visa until 2023. The applicant has consistently attributed this delay to some confusion over the length of his original [visa], stating that he thought it was 2 years but in fact it was only for 2 weeks and that he had a number of [group members] who were in the same position and had also overstayed. He has also consistently claimed that the delay was in part because his de facto had [miscarriages] before they eventually had their son in [year]. At hearing they also said they were afraid of the consequences if they applied at that time. At hearing I asked the applicant when and how he discovered his original visa was for only 2 weeks. He said his de facto had told him after she checked the system, although he was vague on when he found this out. At hearing the applicant also added that he did not know how to apply for protection and that he had heard it was expensive and they were not working. Based on the consistency of the claim and detail provided I accept his de facto suffered [miscarriages], that the applicant may have been initially confused about the length of his original visa, believed the application would cost money, and that they feared the applicant may be returned to Samoa if he intercepted with Australian authorities. However as was noted at hearing, the applicant’s delay in lodging the protection visa application spanned some 7 years in total, and I do not accept these as adequate explanations for this lengthy delay in seeking protection and consider that if he genuinely feared for his safety in Samoa for the reasons claimed there would not have been such a long delay.

The applicant claims to fear harm on account of his political profile. In his statement the applicant briefly claimed “I support the HRPP party (human rights) and the current party that governs is FAST. This is also an issue”. As was noted in the delegate’s decision at the protection visa interview the applicant did not appear to know anything about HRPP and said he had not had any involvement with them other than having voted for them in the past. I noted this at the hearing and the applicant did not have anything to say in response and nor did he raise any claims of a political profile when given an opportunity to detail his claims for protection at hearing. While I am willing to accept as plausible that the applicant voted for the HRPP in the past, on the brief evidence I do not consider he has otherwise been involved in any political groups or activities and I do not consider that he would, now or in the reasonably foreseeable future, because he has not done so in the past and has not indicated any intention to do so. I do not accept he has a political profile as claimed.
At the primary stage the applicant claimed he became involved in fights in Samoa and that he believed he would be harmed or mistreated in this regard in the future and could not take his family back to this and that his public profile from [activity] made it worse. He variously claimed to fear harm in relation to fighting after [activity events], between people of different villages, and in relation to a family dispute over a will and land bequeathed to his father. He also claimed at the primary stage that his father’s [relative’s] husband worked as [an occupation] for the [specified person] and was always getting into fights with their people.
In support of these claims the applicant has provided as series of hyperlinks to pages on social media sites. As noted above, at hearing I noted a number of hyperlinks required the reader to login to an account to access material or appeared broken and the material was therefore inaccessible. At hearing I provided them with some additional time to provide electronic copies or readily accessible links which they said they would provide, although none have been provided to date. Save for one hyperlink to a video on “Tik Tok” which takes the reader to material that seems to change daily and appears unrelated to the applicant’s claims, all the hyperlinks to videos appear broken. The uniform resource locator (URL) for the broken hyperlinks to videos indicate they appear on “Facebook” and the applicant’s accompanying email describes them as showing specific fights and more generalised violence in Samoa, which the applicant indicated at hearing showed one of his relatives, although I was unable to view these. Based on the URLs the other hyperlinks appear to be stories and items shared on people’s Facebook profiles. Those that were accessible took the reader to stories or pages that appeared unrelated to the applicant’s claims (such as in relation to a cruise ship and a market) although a few showed now dated photos of the [specified person] in various settings with the same man beside him who the applicant claims is the husband of his father’s [relative] who is in dispute with his father. He claims this man worked as [an occupation] for [the specified person], has provided this [relative]’s name, and based on this and the detail provided including this man’s name I am willing to accept this [relative] worked as [an occupation] for the [specified person] in the past.
The applicant has consistently claimed to be [an activity participant] and to have travelled to Australia in 2016 to [take part in an event]. The applicant has suggested he has some sort of a public profile or was well known in Samoa because of his involvement in [activity]. At the primary stage the applicant provided a 2023 reference letter from someone (their role is not described and the letter is unsigned) from the [activity authority] attesting to the applicant’s historical involvement in [activity] and his talent, a letter dated in 2016 confirming his invitation to [participate in the activity event], and an Australian Certificate of Incorporation for [an activity group] that appears to have been associated with the [event], as well as several photos of him with his [activity group] (it appears at [events]) and photos of [awards] for [activity] including one from an Australian [activity group]. The images show them in matching [group] outfits, and it appears he travelled to Australia on a visa to [participate in the event]. Based on the documentary evidence and his consistent claims I accept the applicant [did the activity] for [a group or groups] in Samoa and travelled to Australia in 2016 to [participate in the event]. As was noted in the delegate’s decision, at the protection visa interview last year the applicant said he last [did the activity] in 2018 which is consistent with the photo of the [awards], noted above, issued by an Australian [activity group] indicating he [did the activity] for a couple of years after first arriving in Australia, and I am willing to accept this. The applicant has also consistently briefly said he might resume [doing the activity] if he were to return. As was noted at hearing the applicant has [done the activity] with his [group] in Samoa for some 8 years, and he has not [done the activity] at all for some 6 years (despite initially playing when he first arrived in Australia), and while I am willing to accept as plausible that he was known by other players and the [activity] community when he used to play and that he may play socially at some stage in the foreseeable future given his interest in the [event], on the evidence I do not accept he has an enduring public profile in Samoa as claimed or that he will return to [the activity] in the foreseeable future.
The applicant claimed at the primary stage that the fights in relation to [activity events] were between [groups of participants] at the end of [an event], especially at [specified events], and that even the [specified people] got involved. As detailed in the delegate’s decision (who did not accept the applicant had an enduring profile of interest on account of these claims) when asked about these fights the applicant said he had become involved in the past, was thrown out of the [group] because of this, and subsequently joined another [group]. Based on the consistent claim I am willing to accept as plausible there may have been some [violence] after [events], players sometimes became involved, as did the applicant on a limited number of occasions when he was thrown out of his [activity group] because of this, suggesting this was not condoned by the [activity organisations or groups]. However, as noted above and at hearing, I do not accept the applicant has an enduring public profile in Samoa as claimed, or that he will return to [the activity] in the foreseeable future, and it has now been some 8 or more years since these incidents and he last [did the activity] in Samoa or was in Samoa and on the evidence I am not satisfied the applicant faces a real chance of harm in connection with [the activity] or his past limited involvement in these fights. ‘Real chance’ and ‘real risk’ involve the same standard. For the same reasons, I am also not satisfied the applicant faces a ‘real risk’ of significant harm for the reasons claimed.
The applicant claims to fear harm in connection with a family dispute between his father and extended family members. At the primary stage in the applicant’s statement he made a number of generalised claims about fighting in Samoa, stating there were fights between different villages, fights had been going on for many years even before he was born, there were fights because a person was from a different village, fights in retribution, because of long term rifts between villages, land disputes, because certain people married, because a person was an alcoholic junkie who was just abusive, that husbands beat their wives, and that he had extended family members who had died because of fighting in Samoa. The statement said the applicant and his brothers would always be involved and had to fight many times for their lives when in the city market because everyone knew who everyone else was and the island was small. He claimed that this was why one of his brothers had moved to American Samoa because he had a partner there, and to get a better life, and that his other brother had moved to [Country 1] and that this brother was blessed to leave the country. It was claimed the police did nothing because they were easily bribed, and the country was poor. He claimed that you could not move villages because you would not be accepted in another village. As noted in the delegate’s decision, when the applicant was asked how this affected him personally, he said he had to stand up for his family. When pressed for more detail as was noted in the delegate’s decision, the applicant claimed there had been in-fighting between family members about land. It was claimed that the applicant’s father was the only son, an adopted son, and that when his father’s father passed away, the applicant’s father was left almost all the assets and so the applicant’s [relatives] disputed this and wanted to claim everything. One of the [relative’s] husbands worked as [an occupation] for [the specified person] (which as noted above I accept) and he was fighting with their people. After the protection visa interview the applicant provided the Department with a copy of his father’s birth certificate and a purported will dated in 2009, bequeathing the deceased’s estate to the applicant’s father essentially on trust to be equally distributed among his father and his father’s [relatives].
In relation to his own involvement, at the primary stage the applicant briefly claimed in his statement that he had to fight for his life and would always be involved and had to fight. When asked to detail his claims for protection at hearing he said there were still arguments and that when he was in Samoa, he was “involved in a lot of arguments with his dad’s family” so when he had the chance to travel to Australia with the [activity group], he took it. He said he had heard there were still some “fights and stuff” in the family, and he did not want to go back because he might be involved and get hurt. He wanted to apply for a visa to stay here and not go back so he could help his father purchase land so they could move out of where they were now staying. It was also claimed his father’s [relative] had been threatening to take them to court on social media “and stuff like that”. His de facto said there was an evil [relative] and another [relative]. She said the whole drama started because the applicant’s father was adopted, and the birth [relative] did not get anything in the will, and she had always been against the fact that the father was left everything. There had always been drama and threats, even to the extent that “someone” had been put into hospital. She reiterated that the [relative] was married to [the specified person’s employee] and so he had the power to make threats that they would be locked up and beaten, which is why they were all trying to get away to get a better life. When I asked which [specified person] it turned out to be [Mr A] who I noted at hearing was no longer [in a specified position], in fact he ceased being the [specified person] in 2021[5] (which is consistent with the images noted above in some of the hyperlinked documents which are now dated) so this [relative] would no longer enjoy the same privileges or power that they claim he may have had in the past. As was noted in the delegate’s decision there have also been no particularised claims of the applicant or his immediate family including his father having been harmed in the past, despite his parents and [one] brother remaining in the family home.
[5] [Source].
As was also noted at hearing the will requires the applicant’s father to distribute the assets equally among his siblings, not retain all the assets himself, and if he has retained them this might explain why there is a dispute. In response the applicant’s de facto said that the family had discussed all this after the will and decided it would all be the applicant’s father’s land as he had looked after their parents, but that there was still so much drama. I note this indicates there was discussion and agreement about the distribution of assets after the dispute first arose. I noted at hearing that a paper[6] reported that land disputes in Samoa were common, and that there were several systems in place to help resolve these disputes. I said land disputes were reportedly usually resolved by the Land and Titles Court, but ultimately it would depend on the type of dispute, and that there were other methods such as the Land Investigation Commission, and that Samoa was reported to have a robust and well-qualified judiciary served by able administrators. I also noted that this dispute arose from a will dated some 15 years ago (2009), directly concerned his father and his father’s siblings, not the applicant, and that the applicant’s father had not sought to move away despite the claimed dispute and still lived in the family village with his wife and [one] son. At hearing I noted that given the passing of time and that the family had not sought to move away that it would appear they had come to some resolution in that time or that his father was managing the situation and it was not as violent or problematic as applicant was suggesting. I also noted that I had found the applicant’s evidence in relation to the claim vague or brief and that it may be that he is unable to elaborate on events because his knowledge is based on what he has been told or heard rather than any personal or direct involvement in the dispute himself. When I asked the applicant how the dispute affected him personally, he only said that if he returned, he would “100 percent” get involved in the fighting.
[6] Jennifer Clare Corrin, ‘Resolving land disputes in Samoa’ (2008) <
Based on the documentary evidence and broadly consistent claim I am willing to accept that there may have initially been a dispute within the family about the will some time ago when tensions may have been high and someone may have been hurt, although the evidence is that discussions were subsequently held, and an agreement reached. While one of the [relatives] may still be disgruntled and argue with [the applicant’s father] and she and her husband (who used to work for the [specified person]) may have weighed in on this dispute and made some hollow threats to the applicant’s father in the past, given the lack of detail, particularly in relation to the applicant’s personal involvement, and the lack of any particularised claims of the applicant or his immediate family having been harmed despite remaining in the family home, and the delay in the applicant’s application for a protection visa, I consider events have been exaggerated and I do not accept the dispute is as serious or violent as claimed, that the applicant is personally or directly involved, has been physically harmed as a consequence, or that he fled Samoa in fear or his safety or genuinely fears harm in connection with this dispute. While the applicant’s [relative] may still be disgruntled, there may be some acrimony and “drama” within the family, and the applicant’s [relative] may send abusive messages on social media to the applicant’s father threatening to take him to court, which the applicant dislikes and does not want to be involved in or involve his de facto and son in, based on their profiles and the country information above I am not satisfied that these circumstances amount to serious harm. For the reasons noted above I am also not satisfied that these circumstances amount to ‘significant harm’ as defined for the purposes of s 36(2A). There is not a real risk the applicants would be arbitrarily deprived of their lives, or subject to the death penalty, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment.
In the applicant’s statement provided with his protection visa application he briefly alluded to “being poor in Samoa” but has not since elaborated on this, including at hearing when asked to provide his claims for protection. While I acknowledge publications[7] indicate an unemployment rate of 9.4 percent and that some 24.9 percent of the population in Samoa are multidimensionally poor, as was noted at hearing the applicant has family in [Location], Samoa, where he previously lived and worked (and where I consider he would very likely return should he return) and he and his de facto have both completed high school, his de facto has completed a Certificate III in [Subject], and they have worked in various capacities in the past, are young, and while they have a son to support, there is nothing to indicate they cannot work. While there might be fewer employment opportunities and lower wages than in Australia, and they may face initial reintegration issues if they were to return, including delays in securing employment, on the evidence and based on their profiles, I am not satisfied these circumstances would threaten their capacity to subsist or otherwise amount to serious harm, even when taking into account the applicant’s father’s family dispute. For the reasons noted above I am also not satisfied that these circumstances amount to ‘significant harm’ as defined for the purposes of s 36(2A). There is not a real risk the applicants would be arbitrarily deprived of their lives, the death penalty, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment.
[7] Statista, ‘Samoa unemployment rate from 2004 to 2023 < Samoa - unemployment rate 2004-2023 | Statista> (8 April 2024); 'Samoa Multidimensional Poverty Index 2022', Samoa Bureau of Statistics, 2022, 20231025142056
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations for the reasons claimed. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Gabrielle Deal
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2512

18 June 2024.

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Immigration

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Procedural Fairness

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