2404024 (Refugee)
[2024] AATA 2931
•16 July 2024
2404024 (Refugee) [2024] AATA 2931 (16 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2404024
COUNTRY OF REFERENCE: Samoa
MEMBER:Dr Greg Weeks
DATE:16 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 July 2024 at 1:58pm
CATCHWORDS
REFUGEE – protection visa – Samoa – capacity to subsist – economic conditions, unemployment and poverty – fear of negative attitudes and mistreatment by extended family, church and village community – period as unlawful non-citizen – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (5)(d)-(f), 5K, 36(2)(a), (aa), (2A), 65, 426A(1A)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
SZBQJ v MIAC [2005] FCA 143
SZIGC v MIAC [2007] FCA 1725
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 (delegate) on 15 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [Age]-year-old woman and is a citizen of Samoa. She was born and resided in the village of [Village 1] on the island of [Island].
The applicant obtained a Temporary Work Visa to enter Australia on 13 September 2021 and arrived in Darwin [in] September 2021. The applicant was subsequently granted a Temporary Activity Visa on 8 November 2022. That visa ceased a year after it was granted. After a period of more than two months during which she remained in Australia unlawfully, the applicant applied for a protection visa and then obtained a Bridging Visa C on 24 January 2024.
The Tribunal has been provided with a copy of the applicant’s application for a protection visa dated 23 January 2024 (PV application).
Procedural history
The applicant did not attend an interview with the delegate, who refused to grant the visa on the basis that the applicant is not owed protection obligations under the Act.
The applicant was invited to appear before the Tribunal on Wednesday 22 May 2024. She did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal dismissed her application under s 426A(1A)(b) of the Act. The applicant applied for reinstatement of the application within the period prescribed under the Act. The Tribunal reinstated the applicant’s application in a decision dated 23 May 2024.
The applicant appeared before the Tribunal on 3 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages. The applicant was not represented in relation to the review.
Claims for protection
In the PV application, the applicant claimed that she left Samoa and came to Australia on a work visa because she anticipated severe and life altering challenges if she were to remain in Samoa, where conditions such as high poverty and unemployment made it difficult for her to envision a stable and secure future. The applicant claimed that she did not try to move to another part of Samoa, because that did not seem like a viable solution to the challenges she was facing. The applicant claimed that, if she returns to Samoa, she fears an uncertain future with limited opportunities for personal growth and stability. The applicant claims that a lack of familial support and employment prospects would place her in an environment where her basic sustenance and safety would be at risk.
The applicant claimed to fear potential harm or mistreatment if she returns to Samoa, including possible abuse from fellow Samoans who may treat her unfairly due to her changed living conditions. The applicant claimed that her fear is rooted in the perception that her altered circumstances might lead to negative treatment from others. The applicant claimed not to believe that the authorities can or will protect her because they seem unable to provide living conditions for financial assistance. The applicant claimed that she does not think she could relocate within Samoa since the challenges she anticipates are not limited to a specific geographical region within the country.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 (the refugee criterion).
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
For the following reasons, I have concluded that the decision under review should be affirmed.
The applicant gave evidence that her parents, [sister] and [brother] still live together in the family house in [Village 1]. Her parents are no longer employed and her brother was born with physical and mental disabilities which do not allow him to work. The applicant’s sister is employed at a [workplace] and her income supports the applicant’s family. The applicant gave evidence that, when she was employed in Australia, she also supported her family by sending $300 WST per month.
The applicant was employed as a seasonal worker [doing job task 1] at a [workplace] in [City] after she arrived in Australia. She gave evidence that she was employed for about a year and a half, after which she moved to Sydney. The applicant has not worked since that time. She lives with a friend whom she met at their church in Samoa and contributes to the household by caring for the friend’s grandchild as required. The applicant gave evidence that she only applied for a protection visa in order to remain in Australia when she was unable to find work in [City].
In Samoa, the applicant held only one paid job. Shortly after she finished high school, she worked for two years [doing job task 2]. She stopped working at that job when her employer went out of business. During periods of unemployment in Samoa, the applicant gave evidence that she supported her family by growing and selling tomatoes and onions. The applicant gave evidence that would probably grow and sell vegetables again to support herself if she returns to Samoa.
The applicant’s central claim was that her family is not rich and that they are “looked down on” by other members of the village and the church. The applicant gave evidence that these people are essentially members of her extended family. The applicant claimed that they say “negative things” about the applicant’s family and their perceived incapacity to meet their obligations to support the village and the church financially. The applicant gave evidence that the negative comments about her family caused her stress and once almost led to a physical altercation between her and a cousin. She did not otherwise claim to have suffered harm in Samoa before leaving to come to Australia.
The applicant reported having been diagnosed at a Samoan hospital with physical symptoms caused by stress. She also reported having suffered symptoms consistent with depression in Australia. She has not sought or obtained medical treatment for those issues in Australia. She gave evidence that she would “definitely” be happier if she were able to be with her family in Samoa.
I asked the applicant what “severe and life altering challenges” she fears that she will suffer if she returns to Samoa. The applicant stated that she had nothing to add to the evidence, summarised above, that she had already provided. I asked the applicant what “changed living conditions” or “altered circumstances” she fears will cause her to suffer abuse or mistreatment from others if she returns to Samoa. The applicant responded that the fear would be “in [her]self” due to the attitude of the other members of the village. She did not directly address the question but I accept that the applicant’s fears are related to her family’s financial circumstances.
I put to the applicant that she did not appear to be claiming that she fears harm if returned to Samoa for any of the reasons in s 5J(1)(a) of the Act, namely her race, religion, nationality, membership of a particular social group or political opinion. She replied that she fears the mental and physical effects of the attitude towards her family of their neighbours, including the applicant’s aunts and uncles. She emphasised this point repeatedly but did not claim to fear persecution for any of the reasons in s 5J(1)(a) of the Act.
The applicant did not claim, and I do not accept, that she or her immediate family have ever suffered or feared persecution for the reasons in s 5J(1)(a) of the Act. For that reason, I do not accept that the applicant has a well-founded fear of persecution for the reason of membership of a particular social group that consists of her family.[1]
[1] Section 5K of the Act; see 2206578 (Refugee) [2024] AATA 919 (29 January 2024), [130]-[137].
The applicant fears harm of a particular sort if she returns to Samoa but I do not accept that that she would be persecuted for any of the reasons in s 5J(1)(a) of the Act. I do not accept that there is a real chance that the applicant will face persecution for the reason of her race, religion, nationality, membership of a particular social group or political opinion if she returns to Samoa.
In any case, while the applicant fears that she will be under financial pressure if she returns to Samoa, I do not accept that such pressure would amount to serious harm on the basis that her “capacity to subsist” is threatened. That phrase, as it appears in s 5J(5)(d)-(f) of the Act, has been interpreted to refer to a level of economic hardship that challenges the ability of an individual “to continue to exist or remain in being”[2] in fact, rather than as a mere possibility. The applicant gave evidence that she has previously subsisted in Samoa while unemployed by growing and selling tomatoes and onions and that she expects to do so again if she returns. She would be able to live with her family in their home in [Village 1] as she did before leaving Samoa and gave evidence that she intends to do so in order to care for her parents. I do not accept that the financial pressures that she will face constitute a threat to her very existence. I do not accept that the applicant’s basic sustenance and safety would be at risk if she returns to Samoa.
[2] SZBQJ v Minister for Immigration and Citizenship [2005] FCA 143, [11]; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725, [23].
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
During the hearing, I put to the applicant that the stress caused by her family’s financial situation and the reaction of others to that situation may not constitute significant harm as that term is defined in s 36(2A) of the Act. She stated that the issues within her extended family are serious to her but did not disagree with my concern. I also put to the applicant that general socio-economic conditions are usually considered insufficient to create a real risk of significant harm to the extent that they are faced by the population of Samoa generally and not by her personally. The applicant did not respond directly to that issue. I do not accept that the harm feared by the applicant amounts to significant harm as defined in the Act.
The ‘real risk’ element of the complementary protection criterion has been held by a Full Court of the Federal Court of Australia to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3] That reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[4] For the reasons given above in relation to whether there is a real chance that the applicant will suffer serious harm if returned to Samoa, I do not accept that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Samoa.
[3] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, 551 [246] (Lander and Gordon JJ).
[4] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp170-1 at [1169], [1180].
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Dr Greg Weeks
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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