2404136 (Refugee)

2404136 (Refugee) [2024] AATA 3947 (21 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2404136
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Hee-Jung Kim
DATE:21 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 May 2024 at 3:07pm
CATCHWORDS
REFUGEE – protection visa – Samoa – economic opportunities – working in Australia to support family – no claim or fear of harm – new claim of dispute with relative who insisted applicant’s remittances be given to him – applicant’s wife harassed, injured and excluded from family village – hesitant, vague and repetitive or inconsistent oral evidence – no reasonable explanation for late claim and unfavourable inference drawn – wife living and working in town – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), (4), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulation 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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 3 March 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Samoa, applied for the visa on 3 August 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
On 5 March 2024, the applicant applied for review of the delegate’s decision to the Tribunal. The applicant appeared before the Tribunal on 20 May 2024 to give evidence and present arguments. The applicant was accompanied by his cousin [as] his support person and she did not give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.
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-5LA, 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 to the extent that they are relevant to the decision under consideration. There is no country information assessment prepared expressly for protection status determination purposes by the Department of Foreign Affair and Trade in respect of Samoa.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa under s 36(2) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant provided to the Department a copy of his Samoan passport issued [in] 2021 in Apia, Samoa. At the hearing, he presented the same passport to the Tribunal and provided information about his identity in a straightforward manner. On the information before it, the Tribunal is satisfied that the applicant is a citizen of Samoa and that Samoa is the receiving country for the purpose of assessing the applicant’s claims for protection under the refugee and complementary protection criteria.
Evidence before the Department
The applicant’s protection visa application lodged online contained very limited information. He provided that he was born in [Year] in Apia and does not have citizenship or a right to enter or reside in any other countries than Samoa. He claimed that he has never been married and did not provide any family members’ details in Samoa, Australia or elsewhere. He claimed that he lived in [Location 1], Apia from birth to [November] 2022 (his claimed arrival in Australia) but did not provide a specific address. He claimed that he has never studied or worked. However, he stated that he works as [an occupation] at a family [company] in Australia, he gets paid $800 per week and it is a good job to make money to help his family and parents back in Samoa, as well as supporting himself while living in Australia.
In relation to his reasons for seeking protection in Australia, the applicant claimed that he left Samoa to look for help and a better future and he chose to move to Australia to try to help his poor family to survive. He stated that he is happy to be in Australia to get good money from working hard to help his family in Samoa, he is the only hope for his family in Samoa, he knows this is the only way he can help his family and provide for them, and this is why he is applying for the visa. He stated that he did not experience harm in Samoa, he did not think he will be harmed or mistreated if he returns to Samoa, and he did not think anything will happen to him in Samoa because he didn’t escape but rather came to Australia to look for good work and good money to help his family. He stated the Samoan authorities can and will protect him because he is not a criminal or a bad person. He stated that he doesn’t need to relocate in Samoa because Samoa is a safe country.
Evidence before the Tribunal
At the hearing, the applicant presented his Samoan passport which contained a departure stamp from [the] Airport in Samoa on [in] December 2022, and a letter of offer dated 5 October 2023 for ‘[Company] Casual Morning Shift’ commencing on 8 November 2023 at a company in Sydney.
The applicant claimed that no one assisted with his protection visa application lodged online, he read the English questions and answered them himself and while he believed everything was correct, true and complete, he could not recall everything he put in the application. As the information contained in the application form was very limited, the Tribunal asked details about his background, family composition and life in Samoa, which is summarised below:
·The information stating ‘never married’ in his application is incorrect. He could not remember when he married but he was between [Age range] years of age and it was before his [children] were born. His children are [Ages] years old. His wife and the [children] live in a rental property in Apia town since about 6-7 months ago. Before moving to Apia, they lived in the applicant’s home village in [Location 1]. His wife is originally from [Location 2].
·The applicant has not had any contact with his biological parents since he was very young. He does not have any biological siblings. Soon after he was born, he was looked after by his paternal grandparents until they passed away in 2003 or 2005. He then lived with his paternal uncle and the uncle’s family including [cousins] whom he regards as his own siblings. His younger cousins go to school and the others are working in [businesses] owned by [Nationality]. He has not had contact with his uncle’s family since he came to Australia in 2023.
·He has another paternal uncle and a paternal aunt in Australia. He contacts them sometimes but not regularly. His cousin who came to the hearing as a support person is the daughter of his paternal uncle in Australia.
·His wife works fulltime for the government in [job task 1]. She is working and raising the children herself. He sends money to his wife and children and no one else.
·He has only ever lived in [Location 1] with his family in Samoa. After completing [grade], he started working on the family plantation until he left Samoa. He worked alone, preparing the land and planting crops such as taro and banana. Since he left Samoa, his uncle’s family is looking after the land.
·He came to Australia in December 2022. He’s not sure what visa he held but it was a government trip with a group of people. In Australia, he currently lives alone. He worked [when] he first arrived for around 7 months, and since November 2023, he has been working as [an occupation] at a [workplace].
In relation to his reasons for seeking protection, the applicant claimed that he came to Australia to look for a better future and opportunity for himself and his children, as things are unsettled and difficult back home and there is no future for himself, his wife and his children. He raised a new claim about a family dispute with his uncle who threw his wife and children out of the family village in [Location 1]. He claimed that he is worried and scared to return because his family is in danger within the family circle. His oral evidence at the hearing, where relevant, is referred to below.
Reasons and findings
It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).
The applicant confirmed that he could understand the interpreter clearly and did not raise any communication issues throughout the hearing. I did not observe any obvious difficulties in the applicant’s communication through an interpreter and at times where the applicant elected to answer in English but did not address the question, I repeated the question through the interpreter to ensure that the applicant understood the question put to him. I am satisfied that the applicant was afforded a real and meaningful opportunity to give evidence and present arguments at a hearing. I found the applicant to be evasive and hesitant in his responses to my straightforward open questions and even when specific follow up questions were put to him in various ways, his answers often did not address the question or the issue. His evidence was also vague and repetitive. He was unable to articulate who will harm him and how he will be harmed if he returns to Samoa, but rather repeated that he was requesting for an opportunity to remain in Australia for a better future for him and his family.
Family dispute with uncle in Samoa
It was clear from the applicant’s evidence at the hearing that the information in his visa application, particularly in relation to his family composition, education and work history were incomplete and inaccurate. Given his evidence that he could not recall what he had put in his visa application and that he completed it himself (with limited English), I prefer the evidence he gave at the hearing through the interpreter. Although the applicant did not freely offer information and more precise details about his life in Samoa, the background information summarised at [15] is uncontroversial and I accept them.
The applicant claimed that there was nowhere for him and his family to live in Samoa because his wife and children had been thrown out of the family village by his uncle. His wife and children are living in a rental property in Apia. They can’t live with the wife’s family in [Location 2] because his wife has issues with her sister.
He claimed that the issue with his uncle was over the money he sent to his wife and the children. His uncle insisted that the money be given to him and the trouble started there. He constantly harassed his wife mentally and physically, and by constantly putting pressure on her she was stressed, could not bear it anymore and had to move out. Since his wife and the children moved to Apia, the only harassment or contact from his uncle was that he told his wife and the applicant to never come back to the village and if they return, that he will request the village council to remove them from the village and bar them. His house in the village has been demolished and they will be barred if his uncle has his own way.
I asked why he must return to the village and whether he could live in Apia where his family currently lives. He claimed that finance is the main issue because although his wife works, their combined wages will not be enough to put their children through school and provide for the family’s daily needs and rent.
I explained to the applicant the effect of s 423A of the Act, that I must draw an unfavourable inference to the credibility of this new claim and the evidence about the family dispute, unless he could explain why he did not raise these before the delegate’s decision. The applicant stated that it was his fault for not raising them earlier and repeated that he is requesting for an opportunity to remain in Australia for his family’s better future.
Given his evidence that his wife and children left the [Location 1] family village about 6-7 months ago, I find that his family has been living in Apia from around October/November 2023. As the delegate’s refusal decision was not until March 2024, I consider that the applicant had at least 3 months to provide updated information about his circumstances, particularly his family dispute with his uncle which he claims is one of his main reasons for fearing harm on return to Samoa. However, he did not provide any updated details to support his protection claims since lodging his online application to the Department in August 2023, nor correct the incorrect information about his marital status and family details in his visa application. I do not consider his admission that it was his fault for not raising the claim earlier is a reasonable explanation for not providing his family dispute claim and evidence before the delegate’s decision. The late introduction without a sufficient or reasonable explanation raises doubt about his claimed dispute with his uncle over money.
In addition to the above concern, the applicant was unable to articulate with any meaningful and convincing details why his uncle will harm him if he returns to Samoa. He confirmed that previously when his wife and children were still living in the family village, he would tell his wife to give some of the money he sent to his uncle. Currently he only sends money to his wife and children. He claimed that he worried there will be trouble between himself and his uncle which could get worse. When asked to elaborate, he claimed that he saw no way he can get back to his home because his uncle has already barred him from going back to his village. I asked if he did not return to his village, whether there would be any trouble with his uncle. The applicant did not squarely address the question and claimed that from his conversations with his wife who often runs into people from his village, his uncle has already barred him and his family from returning to the village. Despite the repeated rephrasing and request for details, the applicant’s evidence about the claimed trouble he feared with his uncle was vague. His responses after prompting, that he is already barred from returning to his village, was also a shift from his earlier evidence that his uncle will bar him. These added to my concern about the credibility of this late introduced claim.
Despite the above concerns, I am willing to accept that the applicant’s wife and children left the family village to live in a rental property in Apia around 6-7 months ago because she could no longer bear the uncle’s pressure that he receives the applicant’s earnings. I do not accept the applicant’s vague claim that his wife was physically harmed by the uncle in relation to this money dispute because he did not provide any specific details to substantiate the claim. However, I am willing to accept that the uncle told the applicant and his wife that they should never return to the family village in [Location 1], after the applicant’s family moved to Apia. I am not satisfied based on the applicant’s vague evidence that the uncle has in fact barred the applicant and his family from returning to the village or that the applicant’s village home was demolished.
I do not accept that the applicant and his family must return to his family village in [Location 1]. He could not explain why he must return to the village, particularly when his immediate family is already living in Apia. I do not accept his claim that he cannot live in Apia due to finances because his vague claim that his and his wife’s combined income will not be enough was not supported by any specific details such as the necessary income for the family’s daily needs, rent and schooling. He did not provide sufficient details to suggest that his family would be unable to subsist nor provide any specific details about their claimed financial difficulties. He also did not provide any details about how the circumstances will change upon his return such that he could not live in Apia. His repeated request was for an opportunity to remain in Australia to work.
I find that the applicant will return to Apia to live with his wife and children. I do not accept that he and his family have nowhere to live based on his own evidence that his family has been living in a rental property in Apia since about 6-7 months ago.
Based on the applicant’s claim that the only harassment from his uncle since his family moved to Apia is the warning never to come back to the village and that he will request the village council to bar them, I find that the applicant’s family have not been harmed in any way by the uncle in relation to this family dispute, and that they have not been harassed or contacted by the uncle in Apia. The applicant’s evidence at the hearing was that he only contacts his immediate family (i.e. wife and children) and has not had contact with his uncle and other family members in Samoa since he came to Australia. Based on this evidence regarding the lack of contact, I find that the uncle has not directly contacted or harassed the applicant in relation to the claimed dispute. Further, I am not satisfied on the applicant’s vague evidence and inability to articulate the claimed ‘trouble’ with his uncle, that there will be trouble or an ongoing dispute between the applicant and his uncle in Samoa.

I do not accept that the applicant and his family are in danger from other family members or within the family circles because the applicant did not claim that any other family members in Samoa have harmed his family nor that they were seeking to harm him and his family in relation to this claimed dispute with his uncle. The applicant throughout the hearing could not articulate with any specificity or convincing details how he may be harmed in Samoa by anyone including his uncle.
In light of the above and having considered all of the applicant’s evidence, I do not accept there is a real chance that the applicant will face any harm including harassment or physical harm by his uncle or any other family members in the family circles in relation to his claimed dispute with his uncle if he returns to Samoa now or in the reasonably foreseeable future. As the ‘real risk’ test for the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons, I do not accept there to be a real risk the applicant will face significant harm in relation to his claimed dispute with his uncle, as a necessary and foreseeable consequence of being removed from Australia to Samoa.
Economic hardship
[1] MIAC v SZQRB (2013) 210 FCR 505.
The applicant repeatedly claimed throughout the hearing that he requests to be allowed to stay in Australia and work for the future of his family. I accept that the applicant is currently employed by a [company] in Sydney as a casual [occupation] and that his preference is to remain in Australia to work in this job to financially support his family in Samoa.
I discussed with the applicant that he may prefer to stay and work in Australia to earn the higher wages than in Samoa but such preference and any claimed economic hardship due to lesser wages earned in Samoa did not appear to meet the refugee and complementary criteria’s legal requirements. Specifically, I explained that any economic hardship he may face in Samoa would not appear to be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion, as required for the refugee assessment. I also explained that the economic situation in Samoa including the lesser wages than Australia appears to be a general situation faced by everyone in Samoa and there does not appear to be any intentional or deliberate act or omission of a third party to harm the applicant, which was necessary to constitute the types of significant harm for the purposes of the complementary protection assessment. The applicant confirmed that he understood the legal criteria but did not have any comments in relation to my concerns.
I also discussed with the applicant that information about the recent economic situation in Samoa indicates that there has been growth with increased formal sector employment, revived tourism and implementation of infrastructure projects and that tourism and construction should continue to drive growth in the Samoan economy.[2] I noted that he has gained transferable skills in Australia through employment and living in a bigger city which would enable him to find work in Samoa. The applicant claimed that the main obstacle to his finding work in Samoa is probably that he does not have any qualifications as such. I noted to him that he was able to find a job without qualifications in Australia and asked why he couldn’t do the same in Samoa. He answered that the difficulty for him is he doesn’t know what sort of jobs are available back home.
[2] Asian Development Bank, ‘Economic trends and prospects in developing Asia: The Pacific – Samoa’, Samoa and ADB, (Web Page, April 2024) < Shalveen Chand, ‘Employment drives growth’, Samoa Observer (online, 11 March 2024) <>
I have considered the applicant’s personal circumstances including that he has work experiences in [farming], which he has been able to engage without formal qualifications, and that his wife in Samoa is currently working full-time in a government job. I do not accept the applicant’s claim that he will not be able to find a job in Samoa because he doesn’t know what sort of jobs are available back home. I also do not accept the general and vague claim that there is no future for the applicant and his family in Samoa. I have found that he will return to Apia, which is an urban centre with more job opportunities and higher wages than rural areas.[3] I accept that it may take the applicant some time to find a job in Samoa upon return but having regard to his experiences, I find that he will be able to find similar type of manual labour work in Samoa, and until he finds work, his wife will continue to support and contribute to the family income with her full-time job.
[3] In 2017, urban Apia had the highest employment-to-population ratio and the highest average wage in Samoa: see International Labour Organisation, ‘Samoa National Employment Policy 2016-2020: Labour Market Monitoring Report’ (June 2019), pages 4, 6, 16.
I accept that the earnings in Samoa may not be as high as in Australia and the applicant would likely earn less in Samoa than in Australia. While I accept his strong preference is to remain in Australia to earn a higher income to support his family in Samoa, I am not satisfied on the applicant’s vague evidence that his lesser earnings in Samoa will lead to financial difficulties for his family such that he and his family will not be able to subsist. Importantly, the available information and the applicant’s evidence do not indicate that he will be unable to find a job or that he will earn less in Samoa because of his race, religion, nationality, membership of a particular social group or political opinion. I also do not accept, having regard to the applicant’s personal circumstances, that any claimed economic hardship in Samoa would be so significant to the extent that it would threaten his capacity to subsist, nor that he would be denied access to basic services or be denied capacity to earn a livelihood of any kind, where such denial threatens his capacity to subsist. Accordingly, I do not accept that the applicant faces a real chance of serious harm for one or more of the reasons in s 5J(1)(a) in relation to his economic hardship claim.
Further, the available information and the applicant’s evidence do not indicate that any economic hardship the applicant may suffer in Samoa would arise from the intentional or deliberate act or omission of a third person or persons such that it constitutes arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. There is no information before the Tribunal to suggest that the death penalty will be carried out on the applicant. Accordingly, having regard to all of the information before the Tribunal, I do not accept that any claimed economic hardship would result in the types of significant harm identified in s 36(2A) of the Act.
Conclusions
For the reasons set out above and having considered all of the applicant’s claims and evidence individually and cumulatively, the Tribunal is not satisfied that if the applicant returns to Samoa now or in the reasonably foreseeable future, he faces a real chance of serious harm for his claimed reasons or any other reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s 5H of the Act. The applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal has also considered the applicant’s claims under the alternative criterion in s 36(2)(aa). For the reasons set out above and having considered all of the applicant’s claims and evidence individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Samoa, there is a real risk that he will suffer significant harm. Therefore, the applicant is not 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.
Hee-Jung Kim
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 3947

21 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice