2419857 (Refugee) - [2024] ARTA 536

2419857 (Refugee) [2024] ARTA 536 (7 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 2419857
Tribunal:General Member A. McMurran
Date:7 November 2024

Place:Sydney
Decision:The Tribunal affirms the decision under reviewnot to grant the applicant a protection visa.

Statement made on 07 November 2024 at 3:57pm

CATCHWORDS
REFUGEE – Protection Visa – Samoa – threats from his ex-partner’s family – infidelity – no evidence of the families of the applicant and his ex-partner being in a continuing dispute –– there is effective state protection available to the applicant – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 379, 441, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application lodged 26 June 2024 for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 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 national of Samoa, applied for the visa on 10 September 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant faced a real risk of significant harm from his former partner or her family in Samoa. The applicant found that s 36(2A) was not met because s 36(2B)(b) was not satisfied. The delegate further found that the applicant did not meet s36(2)(aa) of the Act.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. This application falls into that category.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal in place of the AAT.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Protection Claims
The applicant’s claims are set out in the application form lodged 10 September 2023 and in an email received by the AAT on 26 September 2024.
The application claims the applicant had four children with his partner in Samoa. He first arrived in Australia on [date] February 2017. He departed and returned on several occasions on temporary short stay visas between 2017 and 2021.
After he returned to Australia on [date] June 2021, he started a relationship with another Samoan woman in about August 2021, whom he describes as [a colleague]. He lived with the woman in regional NSW for approximately six months, when he decided to end that relationship in about February 2022.
When he told his partner in Samoa about a month afterwards, she was “hurt”. He apologised to her but his partner’s family were angry. They told him that when he returns to Samoa “they will kill me” as “payback”. The applicant’s family sought to intervene to protect him, to no avail.
He claims infidelity is not tolerated by families in Samoa, and no help would be forthcoming and he will be “mistreated”. He claims to have now separated from his ex-partner since 2022, after he informed her of his infidelity and decided not to return to Samoa.
He claims Police would not act to protect him if he returns, unless or until there was actual “physical abuse” and whilesoever he remains in Australia.
He is afraid to return to Samoa because he has been threatened by his ex-partner’s brothers and believes he might be killed, as his ex-partner’s relatives have “unforgiveness in their heart”.
On 26 September 2024, the applicant made further claims that:
·His birthdate needed correction for his Australian records;
·His ex-partner has a new boyfriend of 9 months;
·His ex-partner sent him a video of his daughter being beaten with an electrical cord, which he submitted with an email to the AAT;
·Since his relationship ended in 2022, he has been in dispute over the children;
·The dispute was resolved recently with court intervention. The children were asked to choose who they wanted to live with. He now has custody of two children, who live with his sister and brother in Samoa. His ex-partner has custody of two other of their children, who live with her family. She has moved in elsewhere with her new partner.
·The applicant is now living with his new partner in regional Australia.
·There are “rumours” which he believes that his ex-partner’s brothers still want to kill him if he returns;
Background
The applicant is a [age] year old male citizen of Samoa, who has a former partner and four children currently residing in separate households in Samoa.
The applicant arrived in Australia on [date] February 2017 on a Subclass GD 403POOO visa (also referred to as a Temporary Work International Relations subclass 403 visa). This 403 visa allows a person to work in Australia under the terms of a bilateral agreement between the Australian Government or State/territory and a government of another country, in this case, Samoa. An applicant can stay for up to four years when the visa is granted.
The applicant departed Australia on [date] June 2017 when his visa expired. On 25 January 2018, the applicant was granted a further Subclass 403 visa and re-entered Australia on [date] January 2018. He departed Australia again on [date] June 2018 and then applied for a third seasonal worker visa which was granted on 31 May 2021. The applicant returned to Australia on [date] June 2021.
The applicant has remained in Australia since [date] June 2021. On 3 May 2022, the applicant was granted a Temporary activity visa Subclass 408 (pandemic event visa), which visa ceased on 3 June 2022. The applicant then applied for a second 408 visa, granted 3 June 2022, which ceased on 3 May 2023. His third 408 visa was granted on 5 May 2023 and ceased on 5 May 2024.
On 10 September 2023, the applicant lodged his Protection visa application which was refused and which is the subject of this review. The applicant is currently on a Bridging visa pending this review outcome, and working part-time in [regional] NSW, picking fruit.
On 25 September 2024, the applicant was invited to update his information for the AAT and his claims. The AAT invitation invited him to provide updated information as to his personal circumstances and that of his family in Samoa.
On 26 September 2024, the applicant responded to the AAT as follows:
“Thank you for your email sent it on 25/09/2024 requesting more informations about my details.
My details are still the same except my date of birth is wrong. This was the error from the immigration when I lodged my protection visa. I put my right date of birth of [date] and the letter from the immigration came back with wrong date of birth which was [date]. At the mean time I am not able to work due to the wrong of my date of birth which is not match on the system when I apply to any job. I rang and send several of emails in regards the correction of my date of birth but still not corrected and I dont know why.
My family in Samoa has a changed of circumstances due to a problem between me and my partner who is the mother of my 4 children. She left my children to her family and she is staying with her boy friend about 9 months.
My ex partner sent me a video on October last year beating my youngest daughter in an electric cord wire. This was a heart breaking video seeing my daughter cry out loud for help.I was fighting for a full custody of my children but came back with a decision that I have another two children and my ex partner has another two children. Due to the case I did for the full custody of my children both of our families which is my family and my ex partners family are fighting a lot because of my children. All rumors that my family in Samoa heard from my ex partners family that they want to kill me when I am coming back in Samoa. I’m so scared to go back because this matter continues with no end
I attached the video in this email for your informations.”
Hearing process- commenced in AAT - finalised in ART
On 30 September 2024, the AAT invited the applicant to a hearing on 4 November 2024 at 10 am for 2 hours in Sydney. The invitation informed the applicant that it was unable to make a favourable decision on the available information.
On 4 November 2024, the applicant initially did not appear at the scheduled time. The Tribunal was satisfied that the applicant was notified of the day, the time, and the place for the hearing by the AAT by email sent to his recorded address and in accordance with then s441A(5) of the Act[1]. The Tribunal considered dismissing the application.
[1] Repealed 14 October 2024 and now s 379A of the Act.
The applicant did arrive at the Tribunal approximately 2 hours late and after the scheduled time. The Tribunal understood the applicant had driven from [regional] NSW which is a trip of approximately 6-7 hours to arrive for the hearing. The applicant was willing to proceed and the Tribunal was able to re-schedule the hearing with another interpreter, to start at 2pm the same day. A further invitation for the re-scheduled hearing was issued and handed to the applicant, and accepted.
The applicant appeared unrepresented before the Tribunal on 4 November 2024 at 2 pm to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages. The interpreter appeared remotely by video. The applicant could see and hear the interpreter and no issues were raised or detected by the Tribunal concerning interpretation.
The applicant did not seek further time or an adjournment before proceeding. He said he was willing to proceed and wanted the review to continue as re-scheduled on the same day.
Evidence before the Department
The applicant submitted all his information in the application form itself, together with a copy of his Samoan passport and his Birth certificate. No other documentary evidence was available for the Department.
The applicant had correctly written his birth date in the application form as [date] and which correlates with the date on his passport and Birth certificate.
The applicant notified the Department that the date on his visa did not match his correct birthdate which had been recorded as [date]. The applicant states the Department record has remained incorrect on his visas and does not record his correct birthdate.
He has attempted to correct the Department record and lodged a form to do so, but maintains that his issued visas still record the wrong birthdate and “do not match my passport”. He states this has caused him difficulties with employment because the dates do not match and the Department has not corrected his record as his current Bridging visa reflects the wrong birthdate.
The applicant was invited to an interview with a Department officer conducted by telephone on 5 December 2023. The applicant was located in regional NSW at the time of the interview. The Department’s letter to the applicant requesting the interview recorded the applicant’s birthdate incorrectly. The officer however did not question the applicant’s identity which was accepted based on the bio data information from his passport. The Department’s decision then correctly referred to the applicant stated birth as [date] and found no issue with his identity.
The Department interview raised questions about the applicant’s relationship with his former partner. He had explained he was separated from about December 2021. He discussed his family and explained that he was the only family member who had an income. He sends money to his mother regularly who uses the money to help support his children. He explained at the time (December 2023) that there was not a good relationship between him and his ex-partner. He thought the relationship between his mother and his ex-partner however was “good”.
He told the Department officer he had an uncle and aunt living in Queensland. He said he was working on a farm on a full-time basis, six days a week and with Sundays off. He explained he did not want to return to Samoa because of threats from his ex-partner’s family who said he would be killed because he had been unfaithful. He said this was because he had started a relationship in about August 2021 in Australia with another Samoan woman whom he had lived with for about six months, until February 2022. He had told his ex-partner about the relationship while he was living in Australia about a month after it had ended, because he wanted her to know and he was feeling guilty. He has not returned to Samoa since.
The applicant told the officer that in Samoa under civil law, you are “put to death for doing things like this”. He thought his ex-partners brothers would “give me a hiding”. He said he had been threatened in a phone call he received in Australia from Samoa. He said he did not report it to police because “I was in the wrong as well. It was my fault. That’s why I didn’t tell them”. He further stated that police would not intervene because “it’s not affected anyone, I’m here in Australia. So I didn’t report to police”. He explained that is why he had applied for protection so he could “stay here in Australia”.
He told the officer that he had no evidence of any of the phone calls or threats made to him. He said he had no documentary evidence to produce or to show to police. He told the officer that he thought “when I step back into Samoa they will end my life”. He explained to the officer that his ex-partner’s brothers know where he lives and they would be able to find him. He told the officer he had no other history in Samoa of any threats and before he left in 2021, had a good relationship with people in Samoa.
The officer asked him about the delay in bringing his application, from March 2022, when he had informed his ex-partner and she and her family became angry, until lodgement on 10 September 2023. The applicant explained that he did not know about the visa until he had assistance from a family member, his cousin in Queensland, who told him he should apply. The interview concluded when the applicant had nothing further to add.
The delegate accepted the family information provided by the applicant orally at interview. The delegate accepted the applicant’s description of his family’s situation and that of his ex-partner. The delegate formed the opinion that the applicant had established a “good” relationship with his ex-partner despite their separation. The delegate also accepted that the applicant may have received threats from his ex-partner’s family.
The delegate found the applicant had waited for 18 months before applying for his visa. The delegate rejected the applicant’s reason for this extended delay. This was because the delegate thought it implausible that the applicant would not have been aware of the opportunity to apply for protection and that his delay indicated he did not have a genuine fear for his personal safety or future well-being and overall, raised concerns about the credibility of the applicant’s claims for fearing persecution.
From these findings, the delegate concluded that available country information showed the applicant would be protected by state authorities in Samoa in the event protection was required because of actions by family members on his return. Because of the availability of effective protection measures, the delegate found the applicant did not have a well-founded fear of persecution under s5J(2) of the Act.
Evidence before the Tribunal
The Tribunal had the Department file available for consideration together with the delegate’s decision. The Tribunal also listened to the interview recorded 5 December 2023. The applicant had provided an email on 26 September 2024[2], with an attached short video. The Tribunal has had regard to that information which was submitted to demonstrate the applicant’s concern for his youngest ([age]-year-old) daughter and the fact she was subject to abuse by his ex-partner’s family members.
[2] At par 19 above
The Tribunal has also had regard to the Act and the Regulations, Department policy and relevant court authorities and the applicants oral evidence from the hearing.
The Tribunal explained the hearing process to the applicant who maintained that everything he had informed the Department was true. When asked, the applicant did not seek time to obtain further assistance or to submit any further information or documents. The applicant indicated he was ready to proceed.
The applicant repeated the history set out above which he had provided in his application and at the Department interview. He said he was aware of the delegate’s recent decision which had been read to him. The Tribunal explained that the Department had not been satisfied there was a real chance of him being seriously harmed if he returned to Samoa.
The applicant explained that at present, he was finding it difficult to obtain work. He thought it was because there was a mistake as to his birth date recorded on his Bridging visa and which did not align with the date in his passport. He said this was causing some potential employers to refuse him work. He had friends from the Samoan community who were assisting him. The Tribunal responded his Bridging visa was a matter for the Department, which he should take up with them until it was corrected.
The applicant talked about his family and how currently it was difficult for him to support his two children. He explained he was only working approximately one day per week, “picking [fruit]”. He explained his sister was looking after his two children and with his younger brother who was still at school. He said his sister was not working.
He was asked why he would not return to Samoa to look after his children. He responded that he had not received any contact from his ex-partner’s relatives, who were looking for him to return “so they can hurt me”. He was afraid to return. His second reason was to stay in Australia so he could earn an income to support his family because “there is no work in Samoa”. He said he wanted stay in Australia “and bring my children here for a better future”.
He was asked about his relationship. He said he had never married his ex-partner and his four children were now aged [various ages]. He said following an agreement reached very recently in 2024, in a court settlement, with the assistance of his solicitor, the children had been “split”, and given the choice who they would live with. Two of them chose to live with his ex-partner, and two with him. He explained his ex-partner had formed a new relationship. The new partner was helping to support the two children living with her. He was responsible for the two children who are now living with his sister and brother in Samoa.
He was asked about his current relationships. He said his former partner in Australia had returned to Samoa and he now has another Samoan partner in Australia with whom he lives and who is employed for a [company]. He said, “We have no children, just living together about nine months”. He said he does not talk with his ex-partner in Samoa any more, since they have made their decision to “have our own lives now”. He said she had a conversation with him wanting to know if they could renew their relationship, but he said he declined as they both had gone “our own way and we both have got new partners”. He said that was when they decided “split up” permanently and take the children “as they wished”. He said his ex-partner’s new partner was living and working in [another country] and helping to support their two children.

The applicant said that his ex-partner had never threatened him since their separation, but that she has abused the children physically. He referred to the video he had recently submitted. He said he does not want to see the children abused. He said her brothers had sent threatening messages since they separated in 2022, and more recently “through Messenger”. He said he had blocked the messages and changed his social media details so they cannot contact him.
He was asked if he had informed anyone about the messaging threats. He said ‘no’, he had not informed his solicitor or the police. He said this was because “ while I’m in Australia nothing will happen to me”. He was asked about the threat he had received. He said it was from his ex-partner’s older brother, [Mr A]. He described the threat stating: “we’ll put a knife or machete on your neck”. He was asked whether he actually believed the threat and he responded: “I believe it because in our village, [the] fishermen are pretty rough.”” He said there is a police station at the airport about half an hour from [the] village which would be the closest place for reporting the threats from the brother, [Mr A].
He said that village is about [a few hours’] drive away from [City 1], where he was living. He said there is only one market in [City 1] where it is possible they might “bump into each other” or “meet accidentally”. He thought that was a real possibility.
He was asked whether he had considered reporting the threats to the police, as it was against Samoan criminal law. He explained there were two reasons. Firstly, because he would have to go to the main police station and be resident back in Samoa to do so. Secondly, because the initial threat was two years ago and he had no evidence. He was reminded of the latest threat he claims was made early in 2024. He repeated however he would have to be back in Samoa to make the report. He was told that country information indicates Samoan police are very effective, and do act upon such threats. He agreed they are effective. He was asked but did not know anyone in Samoa whom he could recall had been injured as a result of a family dispute and claimed “no, I haven’t experienced that but I know there are cases reported on social media”.
He was asked for any further explanation for not reporting to police, and he repeated that “I was in the wrong as well, which meant it was my fault”. It was put to him that was not a reason for police not to offer protection to him under Samoan law, as Police there operate effectively and have undertaken to protect the whole population. He agreed that there was no reason preventing him from providing a report to police when he was in Samoa. He thought that not only [Mr A], but all his brothers were involved in the threats.
He was asked that given he and his ex-girlfriend had resolved their differences and were now going their separate ways and there was no more dispute between them, would she not be able to deter her family from any continuing threats against him. He said they would not listen to their “little sister” who would not be able to tell the males in the family what they should do.
He was asked what he thought the risk would be of any continuing threats or actual harm. He thought it would be as high as 100%. He was asked having considered the matter afresh with the Tribunal if he would change his view about reporting his claims to police in Samoa in order to protect him. It was put to him that country information demonstrates Samoan police were quite effective preventing crime and prosecuting wrongdoers. It was put to him that currently in Samoa steps are being taken to implement humanitarian considerations, not only to protect women but also to protect children and that child abuse is high on that agenda. He was asked if he would consider taking steps to protect his children if required from any child abuse and that police would act effectively if he did so. He was asked why he would not consider involving police if he was concerned about his children, with his ex-partner’s family, being abused. He responded that now that he has considered it further, he thought it sensible and that he should do so at the first opportunity when he was in Samoa because police there are effective. He said that his ex-partner’s family are by nature “aggressive”, and believes that if he were threatened again in Samoa, he could be protected.
He was asked about delay in bringing his application. He repeated what he had said to the delegate, namely that he had not learnt about the visa until he spoke with his cousin in Queensland in September 2023 and had told her what had happened. She told him then about the visa and that because of his history, he should apply. Prior to that he had felt safe while living in Australia and was not pressed to seek protection until his temporary visa was going to expire.
On conclusion of the hearing, the applicant did not seek any further time for submissions or for providing further information.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant’s establishes a well-founded fear of persecution within the meaning of the Act (s 5J) on account of his membership of a particular social group, namely, Samoan citizens in need of protection from family violence. The claim requires the applicant to establish he is outside his country of nationality, is unwilling or unable to avail himself of the protection of his country of nationality and that there is a real chance the applicant faces persecution involving serious harm to his person.
Identity and Receiving country
The Tribunal has found no issue with the applicant’s identity, and has noted the discrepancy as to his birthdate recorded first by the Department incorrectly on its letter of request for interview, and then claimed to be also repeated on his Bridging visa. The Tribunal is satisfied his correct birthdate is [date] as evidenced by his passport and submitted Birth certificate, and as recorded in the delegate’s decision on 26 June 2024. There was no evidence before the Tribunal of any of the substantive visas or bridging visas granted to the applicant.
The Tribunal finds that the applicant’s receiving country is in Samoa.
Credibility – no concerns
The Tribunal finds that the applicant has been generally truthful in his evidence at hearing and has no credibility concerns as regards the factual background and account given. This was generally consistent with what was recounted both to the Department officer and to the Tribunal. The applicant confirmed he had understood the interpreter and had answered the questions asked as best he could remember.
That is not to say however that the Tribunal is not troubled by the plausibility of the applicant’s explanations in seeking protection. The Tribunal must be satisfied there is a real chance of the applicant suffering serious harm and in circumstances where he cannot be protected by Samoan state authorities. The prospect of serious harm is a foreseeability test, based largely on past events and the likelihood of the apprehended events occurring.
Well-founded fear of persecution
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of claimed fear or that it is ‘well-founded’ for the reason claimed. Simply asserting something without more carries little or no weight.
Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
A decision-maker is not required to make the applicant's case for them. It is the responsibility of the applicant to specify all particulars of the claim and therefore to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.
The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or to assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Real chance of serious harm
In this instance, there is no history of any prior harm occurring to the applicant in Samoa before he came to Australia. The threat or risk of harm arises from a broken relationship caused by the applicant’s infidelity after he had left Samoa. He reported the events to his ex-partner personally while he was “safe” in Australia. The applicant has not returned to Samoa since he told his ex-partner, and his claim for protection arises solely on the basis of his apprehension that he will be harmed by her relatives if he returns.
In assessing the likelihood of that occurrence, the applicant relies upon oral threats he claims to have received from his ex-partner’s elder brother. He claims also these were repeated in social media text messaging. He was unable to submit any text messages in evidence which he claims were deleted when he blocked the messaging and changed his contact details. He was unable to repeat the details from the messaging.
In listening to the evidence, the Tribunal can accept that his ex-partner was angry at the time in February or March 2023 when she learned of the applicant’s new relationship. The Tribunal can accept it was reported to her family. The Tribunal can also accept that the family members were angry and threatened the applicant that if he returned, he would be harmed. How this was done was largely evidenced by an oral communication, in a phone call from the ex-partner’s brother, on at least one occasion in 2023. The Tribunal has placed little weight on the claimed social messaging as recently as early 2024, as more recent events show both the applicant and his ex-partner have “moved on”, have resolved their differences over their four children and have both re-partnered. The applicant claims his ex-partner has maintained a “good” relationship with his mother. The Tribunal finds it is satisfied there is no evidence of the families of the applicant and his ex-partner being in a continuing dispute.
Country information and effective State protection
The Tribunal has considered country information put to the applicant and which information shows that Samoan authorities are effective and active in preventing criminal behaviour, such as personal attacks and physical abuse. This is especially so in respect of violence committed against women and children[3]. The State is particularly concerned with protecting children and implementing human rights protections for all citizens in the country[4]. Country information shows that Samoa has been very active in this regard in recent times in pursuing humanitarian goals to benefit its population.
[3] Samoa Human Rights Report 2023, US Department of State on human rights practices at p14
[4] United Nations Human Rights Council, 12 November 2021, on Samoa; see [18], [25],[29], [38],[49] and [51].
Police in the country are regarded as effective and responsive to the government and in protecting citizens. DFAT reports on the close relationship between the two countries which includes the provision of policing support from the AFP for Samoa. DFAT notes: “In 2009, the Australian Federal Police (AFP) and the Samoa Police, Prisons and Corrections Service (SPPCS) signed the Samoa-Australia Policing Partnership (SAPP), to enhance the performance and responsiveness of the SPPCS. The AFP currently has three members deployed to Samoa, including one member supporting the Pacific Transnational Crime Coordination Centre in Apia.” On its current website, DFAT reports that the crime rate in Samoa is “not high”. Although this relates to travellers, there is no information made available for the Tribunal which contradicts the general information that policing in Samoa is effective both for its local citizens and for visitors and that it actively take steps to protect all persons from violence and abuse.
Samoa has conducted an extensive investigation of family violence through the Ombudsman Office of the National Human Rights Institution, 2018. The Ombudsman’s report was extensive [5] and included recommendations (now enacted) banning child abuse including “corporal punishment and harsh verbal punishment in homes”. Child abuse is now a crime in Samoa and may be prosecuted with penalties including imprisonment. The form of abuse may include the concerns raised by the applicant in his submissions made September 2024, attaching a video claimed to be of one of his children receiving corporal punishment. The Tribunal finds that were the applicant to report his concerns over such a matter, he would be supported by the authorities, in addition to any personal violence threatened against him.
[5] >
The applicant relies upon his broken relationship with his ex-partner as grounds for his perceived “real chance” of serious harm occurring should he return to [City 1], and because “ it was my fault”. He has acknowledged that it is appropriate for him to report to police and he further accepts they would be effective in protecting him from the anticipated violence from the named individual, [Mr A], if that were to continue.
Having listened carefully to the evidence, the Tribunal does not accept the applicant’s claim that his risk of serious harm on his return to Samoa would be “100%”. The Tribunal finds that were the applicant to report his concerns to police and appropriate State authorities, it is more likely that he would be offered protection and the risk of serious harm would be significantly less than his assessment. There is little reason for any further threats either to continue or to be carried out where both he and his ex-partner have moved on, re-partnered, and there is a cordial relationship between his own family (his mother) and his ex-partner. In the Tribunal’s opinion, this further reduces the chance of serious harm eventuating.
The Tribunal is satisfied the applicant himself felt responsibility for the relationship ending and that, unlike the delegate, some form of retribution would be plausible, both then, and continuing into the future from the ex-partner’s brothers. As time passes, the Tribunal assesses any ‘real’ chance diminishes.
Given the history explained by the applicant and the availability of State protection, and which the applicant is willing to avail himself of which is both active and effective, the Tribunal finds that the chance of serious harm occurring to the applicant on his return to Samoa is low, and unlikely to occur, as the applicant himself has considered unless by accident or chance meeting. That is of course premised on the fact also that the applicant will take steps himself to seek protection from relevant Samoan authorities, who are willing to offer protection, rather than simply “accept” that he is responsible for any violence to him personally. He has confirmed he would do so.
The Tribunal is further satisfied that it is open to the applicant to report any child abuse which he apprehends is occurring in respect of his children, and that such report would result in investigation and probable action from State authorities in Samoa against any family perpetrators.
Does the applicant satisfy the refugee criterion for protection?
In considering whether there is a real chance of harm if the applicant were returned to their home area of the receiving country in the reasonably foreseeable future, the Tribunal finds that there is little real chance of harm occurring for the reasons given.
Furthermore, any harm is not likely to reach the threshold of ‘serious harm’ as defined in s5J(5) and the Tribunal finds that there is little likelihood of continuing threats of violence against him because the Tribunal is satisfied that there are effective protection measures available to the applicant in Samoa (ss 5J(2) and 5LA of the Act) and which are accessible to him.
The applicant therefore does not meet s 36(2)(a) of the Act and is not a refugee as defined.
Does the applicant satisfy the complementary protection criterion for protection?
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).
The Tribunal has found that there is no real risk of significant harm for the applicant in the reasonably foreseeable future, for the reasons and findings set out above.
The Tribunal is 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 under review not to grant the applicant a protection visa.
Date of hearing: 4 November 2024
ATTACHMENT
- Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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