2404138 (Refugee)

[2024] AATA 1384

2404138 (Refugee) [2024] AATA 1384 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2404138

COUNTRY OF REFERENCE:                   Samoa

MEMBER:Hee-Jung Kim

DATE:29 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 29 April 2024 at 4:42pm

CATCHWORDS
REFUGEE – protection visa – Samoa – family’s financial struggle – no claims of harm or fear of harm – no additional material, response to hearing invitation or appearance at hearing – application includes applicant’s and father’s occupations, showing work history and capacity – applicant’s responsibility to specify particulars and provide evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), (4), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 425A
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Samoa, applied for the visa on 1 February 2024. 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.

3. On 5 March 2024, the applicant applied for review of the delegate’s decision to the Tribunal. Since lodging her review application, she has not provided any additional material in support of her protection claims to the Tribunal.

4. On 22 March 2024, the Tribunal invited the applicant to appear before it on 29 April 2024 to give evidence and present arguments in relation to the issues under review because it considered that it could not decide the review in the applicant’s favour on the basis of the material before it. The invitation was emailed to the applicant’s nominated email address provided by the applicant in her review application. There is no evidence before the Tribunal to indicate that the invitation was not received by the applicant or that it was returned to sender.

5. The applicant did not appear before the Tribunal on the day of the hearing at the scheduled time and place. The applicant did not contact the Tribunal to explain her non-appearance or to seek an adjournment. On the day of the hearing, the Tribunal Registry staff made several checks of the Tribunal premises prior to and after the time of the scheduled hearing but the applicant was not present.

6. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing and that notice of invitation to appear was given to the applicant in accordance with s 425A of the Act. The applicant failed to appear and has not provided any reasons for her non-appearance. She has not contacted the Tribunal since lodging her review application including in relation to providing material in support of her claims and updating her contact details. In these circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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. The Tribunal notes that there is no country information report for Samoa prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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

14. The applicant provided to the Department copies of the biodata page of her Samoan passport issued [in] 2021 in [Samoa] and her Samoan birth certificate issued [in] April 2021. The delegate was satisfied of the applicant’s identity and that she is a citizen of Samoa. In the absence of any evidence to the contrary, 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

15. In her protection visa application lodged online, the applicant provided that she was born in [Year] in [Location], is a Samoan citizen and does not have citizenship or a right to enter or reside in any other countries. She claimed that she has never been married and did not provide any family members’ details in Samoa, Australia or elsewhere. She claimed that she lived at an address in [Town] from birth to [December] 2021. She claimed that she has never studied. She claimed that she worked as [an Occupation] [with an Employer] in [Town] until 2 November 2021, and from [December] 2021 to 20 January 2024, she worked in [Job task] in NSW. She arrived in Australia [in] December 2021.

16. In relation to her reasons for seeking protection in Australia, the applicant claimed that she grew up in a small island of Samoa, seeing her parents struggle to provide and raise her and the family so she decided to move to Australia to work and help her family in Samoa. She stated that she did not experience harm in Samoa and she did not think she will be harmed or mistreated if she returns to Samoa. She stated the Samoan authorities can and will protect her, Samoa is a safe country and there is no way anyone or she will be harmed if she returns to Samoa.

17. Apart from the copies of her identity documents, the applicant did not provide any documents in support of her protection claims.

    Evidence before the Tribunal

18. As noted above, the applicant has not provided any further material to the Tribunal in support of her claims and she did not attend the scheduled hearing.

    Reasons and findings

19. 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).

20. The Tribunal has reviewed all of the material before it. The limited evidence which consisted of the applicant’s passport biopage, birth certificate and some information about her background and general claims in the protection visa application lacks specific details to satisfy the Tribunal of the applicant’s circumstances nor do they clearly articulate any claims for fear of harm in Samoa. In particular, the applicant has expressly stated that she did not experience any harm in Samoa, Samoa is a safe country, and she will not be harmed or mistreated if she returns to Samoa.

21. The Tribunal is prepared to accept the background information set out in [15] including that she was born in [Year] in [Town], has never been married, lived and worked in [Town] until her departure from Samoa, and worked in [Job task] since arriving in Australia in December 2021.

22. The applicant’s only claim for seeking protection from the material before the Tribunal is that she and her family struggled financially in Samoa. However, she has not provided detailed information about her family composition and the family’s financial circumstances for the Tribunal to be satisfied whether she and her family in fact experienced any economic hardship in Samoa. She also did not claim that she could not subsist in Samoa. Her birth certificate which provides her parents’ details show that her father’s occupation is ‘[occupation]’ and in her protection visa application, she provided that she was working in Samoa as [an Occupation] until shortly before her departure from Samoa. There is no information to suggest she could not work in Samoa or could not subsist with her earnings in Samoa. She has not provided any details about her siblings or other family members for whom she may be financially helping. There is also no information about her current circumstances to indicate she may face economic hardship if she returns to Samoa in the reasonably foreseeable future. The available information indicates that she has consistently worked in Samoa and Australia, which further suggests she will be able to work and earn an income if she returns to Samoa.

23. The applicant did not attend a hearing before the Tribunal to provide more detailed oral evidence about her claim and circumstances. There is insufficient evidence for the Tribunal to be satisfied that the applicant and her family struggled financially in Samoa nor that she will face economic hardship on return to Samoa.

24. Accordingly, on the available material, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm on return to Samoa in relation to any claimed economic hardship.   

25. For the reasons set out above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to Samoa for her claimed reasons or for any other reason in s 5J(1)(a), now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied the applicant has a well-founded fear of persecution in Samoa, and the applicant does not meet the definition of refugee in s 5H(1). The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligation under s 36(2)(a).

26. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons set out above, the Tribunal is not satisfied that there is a real risk that the applicant will be harmed upon return to Samoa. Therefore, 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 she will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

27. 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

28. 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.

    …