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AR (Samoa) [2016] NZIPT 800905 (8 January 2016)

Last Updated: 17 April 2016

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND

[2016] NZIPT 800905-908

AT AUCKLAND

Appellants: AR (Samoa)

Before: A M Clayton (Member)

Counsel for the Appellants: K Partington

Counsel for the Respondent: No Appearance

Date of Hearing: 7 & 9 December 2015

_{Date of Decision: 8 January 2016}

_{REFUGEE AND PROTECTION DECISION}

[1] This is an appeal against a decision of a refugee and protection officer declining to grant refugee or protected person status to the four appellants, a married couple in their early fifties and two of their daughters, aged 15 and 13. The husband and wife and elder daughter are citizens of Samoa; the younger daughter was born in American Samoa and is a United States national.

THE ISSUES

[2] Mr and Mrs AA have been disowned by family and banished from their home village in Samoa. The central issue is whether, as a consequence, the family members (individually or cumulatively) will be able to access effective state protection from such harm.

[3] The Tribunal does not find the appellants to be refugees as it determines there is effective state protection available in regard to the banishment and that the possibility of physical or other harm to the family is speculative only.

THE APPELLANTS’ CASE

[4] The accounts which follow are summaries of the evidence given by three of the appellants and two witnesses at the appeal hearing.

Evidence of Mr AA

[5] Mr AA was born in Village A on Island A. He knows his biological father’s name but nothing else about him, not even whether he remains alive.

[6] At the age of five, Mr AA moved with his mother and his mother’s new husband (his stepfather) to his stepfather’s village, Village B, on Island B. His mother and stepfather had a further eight children (Mr AA’s half-brothers and sisters).

[7] After Mr AA finished high school in Apia (where he stayed in a hostel during term time), he worked in Apia for three years, two years as an accounts clerk and another year as a risk officer. He and Mrs AA, also from Village B, married and returned to live and work on the family plantation.

[8] Mr and Mrs AA stayed on in Village B for approximately 14 years. Thereafter they spent five years living and working in a cannery in American Samoa. They returned to Village B for one year before coming to New Zealand in

2005.

[9] In the meantime, Mr and Mrs AA had five children; a son BB and daughters CC and DD, now all in their twenties, and daughters EE and FF who are included in the present appeals and are aged 15 and 13.

[10] In 2000, daughters CC and DD came to New Zealand to be adopted by Mrs AA’s sister here. In October 2005, having discovered that their daughters were being mistreated, Mr AA came to New Zealand to take over their care. Mrs AA and younger daughters EE and FF joined them in New Zealand in February 2007. Their son BB arrived in December 2007.

[11] While the older daughters CC and DD became citizens of New Zealand as a result of their adoption, Mr and Mrs AA, son BB, and their younger daughters EE and FF struggled to regularise their immigration status in New Zealand after their visas expired in 2009. In 2011 Mr and Mrs AA were taken in by a scam and paid for false “Aotearoa citizenship” certificates. Since then, they have made numerous

applications to Immigration New Zealand and requests to the Minister of

Immigration to be permitted to stay.

[12] Immigration New Zealand records reveal that their son BB was recently granted residence, in October 2015, on the grounds of his partnership with a New Zealand resident. However, Mr and Mrs AA and their daughters EE and FF have been unlawfully in New Zealand since February 2009 (although Mrs AA appears to have been granted a limited visa from 29 May to 29 November 2015). Mr AA was working and supporting the family until he was served with a deportation order and taken into custody on 14 April 2015. He remains in custody.

[13] Meanwhile, in 2008, Mr and Mrs AA’s second daughter DD had a relationship with Mr AA’s stepfather’s sister’s grandson (in palagi terms, the equivalent of her second cousin, although there is no consanguineal relationship). In 2009 she had this young man’s child.

[14] DD’s relationship ended when members of her boyfriend’s family discovered she was pregnant to him. Their relationship was considered in Samoan terms to be incestuous. Mr AA’s half-siblings and extended family were extremely angry. Initially, Mr AA was angry himself but he loves his daughter and had to forgive her. Her breach of the taboo against incest, however, was a wrongdoing for which the rest of DD’s family has had to carry the burden.

[15] When it was discovered that his second daughter DD was pregnant, a first cousin of her boyfriend by the name of GG came to the AA’s home and insulted the family. She assaulted their first daughter CC and the police were called. GG also sent a number of text messages to DD and posted an offensive Facebook message about her which was able to be seen by Mr AA’s family members in Village B.

[16] There was considerable adverse reaction to DD’s pregnancy from Mr AA’s half-siblings and his mother. One of his half-sisters living in New Zealand, HH, rang Mr AA more than five times. She said that she and her siblings did not want to call him “brother” anymore and that he should have instructed DD about the rules of family. She alleged that his daughter DD had behaved as she did because Mr AA did not regard their father as his real father.

[17] Another half-sister in New Zealand, JJ, used to visit the AA family before

DD became pregnant. After, she made no contact with them.

[18] Prior to his daughter DD’s pregnancy, Mr AA worked with his half-brother KK and their respective families attended the same church and socialised with each other frequently. KK had in fact sponsored the appellant to come to New Zealand and they had lived together before Mrs AA had joined her husband. Following the discovery of DD’s relationship, KK and his family did not visit the AA home anymore other than on one occasion when KK visited in order to chastise DD and Mr AA. At one point during his visit he approached DD and threatened that he would kick and hit her. He left only when Mr AA said he would otherwise call the police. Mr AA continued to see KK at work where KK would berate him for what DD had done.

[19] Two of Mr AA’s half-sisters lived in Australia at the time. Prior to DD’s pregnancy one would call quite regularly to inquire after the family, but she made no contact afterward. The other half-sister told Mr AA, as did her siblings, that their father had “wasted his love” on him and that he had shamed their family.

[20] Mr AA’s half-brother LL and half-sister MM remain on the family land in Village B with Mr AA’s mother. MM used to contact Mr AA frequently to see how the family was and to ask for financial assistance. However, after his daughter DD became pregnant, she contacted Mr AA only to say he had embarrassed them all and destroyed the family name.

[21] Mr and Mrs AA received no further communication from Mr AA’s family members until, in late 2004, DD became engaged to marry another second cousin from Mr AA’s stepfather’s family. The marriage was set for a date in December

2014.

[22] Mr AA’s family reacted angrily again. By this time, Mr AA’s stepbrother KK had moved to Australia. KK called and told Mr AA that he had wasted his love on him. Half-sister HH called approximately three times and said the same things as before, that she and her siblings disowned Mr AA as their brother.

[23] Mr AA’s mother also rang and criticised him, saying he should never have gone to New Zealand and that he had not given sufficient thought to her situation given that she has to live within his stepfather’s family. Mr AA’s last contact with his mother was after his daughter DD’s intended wedding in December 2014, when his mother told him that if anything further happened she would rather die. She cursed both Mr AA and DD, and said she never wanted to see either of them again. She relayed to Mr AA that his half-siblings did not want him back in Samoa and that he would be physically hurt as soon as he arrived in the country.

[24] The fact that DD subsequently cancelled the wedding and broke off her relationship did not make any difference to the attitude of Mr AA’s family members. He believes that her intended wedding gave licence to his family to revisit her earlier transgression with an extended family member. DD’s now six-year-old daughter is a permanent reminder of that relationship.

[25] In early 2015, Mrs AA’s niece NN, who still lives in Village B, contacted Mr and Mrs AA and told them there had been a meeting of the fono (village council) and that they had been banned from the village. Mr AA said he needed proof and gave NN his workplace fax address.

[26] On 23 February 2015 Mr AA received a fax at his workplace. It contained a letter from NN which, translated, stated that since his daughter DD and Mr AA’s “nephew” had breached the “sister and brother covenant” by having a child, this had brought shame on the family. DD was cursed and disowned by “our family”. Mr and Mrs AA were not to enter the village and Mr AA was not to be seen or to see his family in Village B. The family would not be welcomed back to Samoa.

[27] It also contained a notice from the mayor of the village which was translated as:

All Grace goes to God for his kindness and protection throughout our daily life.

With all due respect I [deleted], Mayor of [Village B], am writing this letter in regards to [Mr AA]. [Mr AA] is a descendant of this village. He was a well known and respected person in the community. He has a kind heart towards his peers. Due to the disgrace brought by his daughter to his family [Mrs AA] and [Mr AA] are banned for good from [Village B]....

[28] If Mr AA is forced to return to Samoa he would not know where to go. He would not contact anyone who lives in Village B. He would find it difficult to trust people in his church. Paid employment is extremely hard to get in Samoa.

[29] Mr AA would only return to Village B if his half-siblings and his mother agreed to a reconciliation. He has not asked to talk to them about a reconciliation but he did ask his mother if he could make a traditional apology last time they spoke. She told him it was too late as the family was already embarrassed. Mr AA would not be willing to take legal proceedings in Samoa against his banishment because he believes the village fono has more authority than the courts or government in Samoa.

[30] Avoiding Village B will not resolve the AA family’s situation. The shame

Mr AA has brought to his family is not confined to his home village. His family will

find out he has returned to Samoa and seek him out, wherever he might be. He fears that his half-brother LL and other extended family members will physically harm him and his family, as they have already threatened to do.

[31] As far as his younger daughters EE and FF are concerned, it will be very hard for them to return to Samoa. They might commit suicide.

Evidence of Mrs AA

[32] Like Mr AA, Mrs AA grew up in Village B. Her parents have died but two of her sisters remain in the village. As for her other siblings, two are in the United States, one in American Samoa, and two in New Zealand.

[33] While Mrs AA’s sister in New Zealand has expressed surprise at the attitude of Mr AA’s family, her two sisters in Village B have to be careful about their place in the village. They have not called Mrs AA since Mr AA was taken into custody in April 2015.

[34] Mrs AA believes that anger had been building up in Mr AA’s family since their daughter DD’s child was born in 2009. After DD had given birth, a relation called GG telephoned and said “you wait, better off if we come and kill you”. Mrs AA has not heard from GG since. When DD breached the incest taboo for a second time, the anger towards their family reached the point where it is now unsafe for them to return to Samoa.

[35] If Mrs AA was forced to return to Samoa she would not return to Village B. Even before she and her husband were banished she would not have returned as there is nothing in the village, no future there for her children. Now, because they have been banished, she and her family would be chased away and they may even be killed. Mrs AA would rather commit suicide than return to her family in the village.

[36] Even if she and her family did not return to Village B, and lived for instance in Apia, they would be sought out and there would be serious consequences for them, perhaps ultimately death. She and her husband are blamed for their daughter DD’s transgressions. While this blame does not extend to their younger daughters EE and FF, the girls could be harmed if they got in the way of physical retribution against Mr and Mrs AA.

Evidence of DD

[37] DD is the second of Mr and Mrs AA’s five children. She and her elder sister CC became New Zealand citizens following their adoption in 2000 by Mrs AA’s sister in New Zealand. Despite their adoption, she and her sister remain part of Mr and Mrs AA’s family.

[38] After DD had her baby in 2009, a relation named GG posted an insulting message about her on the internet which could be seen by every family member in Samoa. Apart from calling her a “loose woman” and making various sexual comments about her, it said that the family wanted to kill DD and threatened “a hiding”.

[39] Approximately two years after DD’s baby was born, GG came to the AA family’s house in New Zealand with another cousin and assaulted her older sister CC.

[40] At around the same time, DD made arrangements to go to Samoa for a holiday. Coincidentally, her grandfather (her father’s stepfather) died and so she visited Village B for one day for his funeral. She did not eat or communicate with the family. They did not want to look at or talk to her.

[41] When, in December 2014, DD intended to marry another relation of her father’s stepfather (apparently the same relationship to her as her baby’s father), family members from Samoa rang and said “some very nasty things”. As a result, DD spoke to her fiancé and called the wedding off. Around the same time her paternal grandmother called and said the family was banished and that DD’s father was no longer her son. Her father’s half-brother from Samoa also called.

[42] DD believes that if her family return to Samoa they will have nowhere to live. They have brought shame to the village as well as to the father’s family. If they return to Village B they will be injured or killed. If they go anywhere else, her father’s family and the villagers will find them.

[43] DD acknowledges that what she has done is very serious and feels guilty for the situation she has created for her family. The loss of honour is felt by the whole family, not just DD as an individual. People in Samoa hold the whole family responsible and they will say nasty things and threaten her parents and her sisters. She herself would never return to Samoa and she does not believe that her family will ever be safe there.

Evidence of EE

[44] Mr and Mrs AA’s daughter EE is in Year 10 at school and has little or no memory of Samoa or American Samoa. EE overheard her relation GG threatening her sister DD over the telephone by saying that she would come over and put DD “in the oven”.

[45] EE is frightened of returning to Samoa. She believes her family’s house may be burnt down. She fears her father’s and mother’s family members, although she does not know what they would do. If sent back to Samoa, she would not dare to leave the airport. She is not sure that her parents could protect her in Samoa.

Evidence of PP

[46] PP met the AA family at church in 2012. She knows of the family’s ongoing efforts to obtain residence status in New Zealand, including purchasing a citizenship certificate (which they believed to be authentic) from a Maori gentleman. By 2012, Mr and Mrs AA knew they were here unlawfully and seemed lost and scared. They told PP they needed to stay here for their children to have a better education and to support their second daughter DD and her baby.

[47] Throughout her dealings with them, though, it seemed to PP that Mr and Mrs AA were holding something back. It was not until they told her about their banishment that she discovered their secret, that their daughter had had an incestuous relationship.

[48] PP remembers that, when she was a child in Samoa, an uncle of hers was alleged to have committed incest with some nieces aged under 16, and was banished from their village. When she saw him a little later, he had knife marks on him and his wife and children had also been assaulted. The family was able to migrate to New Zealand; they simply could not stay in Samoa.

[49] PP knows that the AA family will not be safe anywhere in Samoa. Banishment contradicts the law but not the culture. The police will only help after someone is hurt and the damage is done. The law cannot override Samoan custom. Even though there was no blood relationship in this particular case, if someone is raised within a family then they are treated as part of that family. She does not believe the AA family could rely on support from their church in Samoa. PP knows no-one in Samoa who does not live with their family.

Evidence of Ms SS

[50] Ms SS has over 25 years’ experience as a social worker within the justice and social services, she is also engaged in social policy research, community development (including international development in Samoa) and working with Pacific families in crisis. She is a matai which she says means she has the responsibility for the well-being and leadership of a large extended family.

[51] Ms SS prepared a report (3 September 2015) for the AA family in response to matters and questions raised by the Refugee Status Branch.

[52] In her report, Ms SS noted that incest was deemed to have been committed between the second daughter DD and her “first cousin”. This relationship is seen in the Samoan cultural context as a relationship with her brother, as a cousin is synonymous with a sibling. At the hearing, Ms SS added that there is no distinction in Samoa between a son and a grandson; nor is a connection by blood paramount. The sexualisation of the forbidden relationship between DD and a person viewed as her “younger brother”:

... immediately ignited justifiable outrage in [Village B] once it was discovered. This outrage was heightened further when a child was born to this forbidden union.

[53] The penalty for any incestuous relationship is for the family to be expelled from the village. The offence is viewed as having been committed collectively and therefore Mr and Mrs AA bear direct responsibility for their daughter’s actions.

[54] In her report, Ms SS extrapolated on the Samoan concept of “banishment”

which, she says, covers the two concepts of fa’ateaga and atimalelau.

[55] In Samoan culture, fa’ateaga defines the consequences for an individual and their family for a gross offence against the “laws” of the village council. Penalties will be exacted for such things as public drunkenness, infidelity, and incest. Atimalelau is the more extreme level of sanction because it means to “pull up by the roots”, meaning that the family concerned is removed from the village but is also removed in “mental, physical, spiritual genealogical terms which impact intergenerationally”.

[56] Reading the notice of banishment at the hearing for the first time, Ms SS confirmed her view that it is the cultural concept of atimalelau which is at the centre of the AA family’s situation. This is despite the fact that some of the notice is couched in complimentary terms in regard to Mr AA. The AA family experience the consequences of atimalelau as being “like a curse” which blights their present

lives but will also cause harm to their futures and, because their banishment affects their descendants, to the futures of their children. In the experience of Ms SS and, she says, of her colleagues, they have never known a village council to rescind an order for banishment.

[57] As for the prospect of returning to the village of his birth, Village A, unless there has been an ongoing contribution by Mr AA, it is unrealistic to expect him to return there. He is like a stranger to that village. Even if he could return to Village A, it would not be long before the reasons for the family’s relocation would surface and he and his family would become subject to ostracism once again.

[58] All the people whom Ms SS knows who have been banished from their village have emigrated from Samoa. If a banished person does not have a sympathetic side of the family to turn to (who would need to live in another village), or cannot emigrate, their situation is “choice-less”.

[59] The serious harm is ongoing because the family is essentially severed from its roots. Village fono are empowered by law to keep order in their village and are expected to do so by the small police force in Samoa. Samoan police are usually only called in at the extreme end of criminal offending. Local police officers stationed in rural districts would be unlikely to intervene rapidly to prevent potential harm.

[60] The possibility of the AA family living in any other village is not an option because both Mr and Mrs AA come from the same home village. Banishment means, in practical terms, never being able to cite genealogical connections with Village B and therefore means living in a disconnected way which is foreign to Samoans. It can be seen as a mental unwellness, a “spiritual death”, which could culminate in suicide.

[61] Ms SS also considers it unrealistic to expect the AA family to rent in the urban setting of Apia, given the reasons for their fa’ateaga and atimalelau. She considers they are open to being physically assaulted wherever they are. The family has offended a large number of people and there is a lot of feeling around the issue of incest. They would be at risk in Apia from young people with allegiances to the village. In Ms SS’ experience, there have been incidents of serious assault when there have been chance encounters by these sorts of people, not only with the person banished, but also with the banished person’s extended family. While police are the primary law enforcers in an urban area, the

police would still defer to the village fono if there was, say, an assault in a public place which arose by reason of a banishment.

[62] Rental accommodation in Apia is expensive and difficult to find. Employment in Apia will be very difficult for someone in Mr AA’s situation when there are a lot of younger people available and he has a limited number of work skills. The sort of person who might be able to live independently in Apia is, say, a young person or a young couple employed in a specialised area, perhaps the public service or in retail or a particular trade. Unskilled work is highly sought after and very low paid (approximately two tala (NZD1.30) per hour). There is no government support in Samoa.

[63] Ms SS describes a Samoan without family as a “leaf in the wind”. Not having family negates a person’s identity as a Samoan and this is part of the “curse” to which the AA family is subject. The only alternative is to emigrate. As for their younger daughters EE and FF, they would grow up in their parents’ “living death” situation and will be denied their genealogical rights because of the banishment.

[64] As for legal protection against banishment, Ms SS considers there to be a “long distance” between the legislation and village practice where, at the end of the day, the village council is sovereign. The legal cases provided by the Tribunal at the hearing, in particular Tutuila, show how dangerous the consequences of disobeying village sanctions can be in reality.

Material and Submissions Received

[65] The respondent has provided the Refugee Status Branch and Immigration New Zealand files in regard to the family’s applications and requests, including their claim for refugee or protected person status.

[66] For the appellants, their counsel has submitted: opening submissions (2 December 2015); a copy of the banishment notice from the Mayor of Village B plus translation; a copy of NN’s letter concerning the banishment (23 February

2015) plus translation; statutory declarations and/or briefs of evidence from DD, EEAA, PP and Mr and Mrs AA; letter from Reverend RR (undated) advising that he was to be the celebrant at DD’s wedding which was called off for family reasons; brief of evidence of Ms SS (1 December 2015) and a copy of her earlier report (3 September 2015); closing submissions (10 December 2015); and further comment from Ms SS (15 December 2015) in regard to the three Samoan

Supreme Court and Court of Appeal decisions provided by the Tribunal at the hearing.

ASSESSMENT

[67] Under section 198 of the Immigration Act 2009 (the Act), on an appeal under section 194(1)(c) the Tribunal must determine (in this order) whether to recognise an appellant as:

(a) a refugee under the 1951 Convention Relating to the Status of

Refugees (the Refugee Convention) (section 129 of the Act); and

(b) a protected person under the 1984 Convention Against Torture

(section 130 of the Act); and

(c) a protected person under the 1966 International Covenant on Civil and Political Rights (section 131 of the Act).

Credibility

[68] In determining whether any or all of the appellants should be recognised as a refugee or protected person, it is necessary first to identify the facts against which those assessments are to be made.

[69] The appeals were heard jointly and the evidence of three of the appellants and their witnesses was given, by consent, in support of all the appeals. Also by consent, Mr AA gave his evidence first, without younger daughter EE or Mrs AA in the hearing room. Mrs AA gave her evidence without their younger daughter EE present.

[70] The appellants Mr and Mrs AA and younger daughter EE and their two witnesses, second daughter DD and fellow church attendee PP gave credible evidence at the hearing as to past events. The relevant facts as found are as follows.

[71] Mr and Mrs AA both grew up in Village B and it is the only village in Samoa to which they would normally be entitled to return. Mr AA was not his stepfather’s biological child but was brought up as a member of his wife’s family. Mr AA came to New Zealand in 2005 where two of the couple’s five children, now New Zealand

citizens, had lived since 2000. Mrs AA and their younger daughters EE and FF, and then their son BB, followed in 2007.

[72] Mr and Mrs AA’s daughter DD had a relationship with a second cousin on her father’s stepfather’s side of the family and had his baby in 2009. This attracted a large amount of negative reaction from Mr AA’s family, immediate and extended.

[73] DD’s further relationship with a man of a similar relationship to her, in 2014, also attracted the ire of Mr AA’s family. Some threats of physical harm were made. Mr AA was disowned by his mother and half-siblings. On 23 February

2015 he and Mrs AA received a banishment notice from the Mayor of Village B. They had received no notice of the fono’s intention to banish them.

Assessment of the Claims to Refugee Status

[74] Article 1A(2) of the Refugee Convention, incorporated into the Act via section 129(1), provides that a refugee is a person who,

... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

[75] For the purposes of refugee determination, “being persecuted” has been defined as the sustained or systemic violation of core human rights, demonstrative of a failure of state protection – see Refugee Appeal No 74665 (7 July 2004) at [36]-[90]. In other words, it is the infliction of serious harm arising from a breach of human rights, coupled with the absence of state protection.

[76] In determining what is meant by “well-founded” in Article 1A(2) of the Convention, the Tribunal adopts the approach in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA), where it was held that a fear of being persecuted is established as well-founded when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective – see Refugee Appeal No 76044 (11 September 2008) at [57].

[77] The principal issues are therefore (see Refugee Appeal No 70074

(17 September 1996)):

(a) Objectively, on the facts as found, is there a real chance of the appellants being persecuted if returned to the country of nationality?

(b) If the answer is yes, is there a Convention reason for that persecution?

Objectively, on the facts as found, is there a real chance of the appellants being persecuted if returned to Samoa?

[78] While the Tribunal accepts that the Village B fono has purported to banish Mr and Mrs AA, it first investigates the reason for that action. It then determines the legal status of banishment in Samoa, the potential harm arising from the appellants’ situation in Samoa, and the availability of effective state protection.

(a) Incest in terms of Samoan cultural mores

[79] Incest is broadly defined in Samoan cultural terms, according to Jeannette Marie Mageo (in “Spirit Girls and Marines: Possession and Ethnopsychiatry as Historical Discourse in Samoa” (1996) 23(1) American Ethnologist 61). Mageo states that incest can include sexual relations with “the most distant and tenuous of relatives” (at p 72).

[80] As Ms SS told the Tribunal, in terms of Samoan incest prohibitions the distinctions between cousins and siblings and between generations are not recognised in the same way as they are in palagi culture. In his paper “Incest Prohibitions and the Logic of Power in Samoa” (1976) 85(2) The Journal of the Polynesian Society 275, Bradd Shore states:

Incest includes heterosexual relations between paternal parallel cousins (tauusoga tama), maternal parallel cousins (tauusoga tina), between parent and child, as well as between cross-cousins and siblings. The taboo on cousins is said to be an extension of that between true siblings, while the prohibition of sexual relations between transgenerational relatives is said to be based on that between true parent and child. Upon examining cases of incest and the principles by which they are classed as mata’ifale, however, one comes across individuals whose relationship is considered incestuous and yet who have no blood connection whatsoever. Their relationship is regarded as incestuous not because they are related by blood (they are not) but because they are regarded as ‘aiga ‘kin’.

[81] Mr AA has blood ties to his half-siblings but he was not related consanguineally to his late stepfather. His relationship with his stepfather was nevertheless based on patterns of behaviour appropriate between father and son in the aiga (family or kin). Echoing Ms SS’ evidence that the relationship of aiga can be through blood ties or behavioural patterns, Bradd Shore confirms:

It is now apparent how two individuals not related consanguinally, can be considered as committing incest. Anyone residing, whether permanently or temporarily, in a ‘au’aiga ‘residential unit’, and fulfilling behavioural expectations as a member of that unit, is considered subject to all the rules and prohibitions

concomitant with the status of an ‘aiga member. Thus, a male adopted member of the residential unit is expected to regard the girls of that unit as his sisters, and treat them accordingly.

[82] Mr and Mrs AA’s daughter DD had sexual relations with her grandfather’s sister’s grandson and therefore in terms of Samoan custom she offended the brother/sister relationship, which Shore also contends is the central relationship throughout Samoan social structure.

[83] Ms SS’ evidence that the AA family, in particular Mr and Mrs AA, bear the shame and a collective responsibility for DD’s offence against customary law is accepted. Ms SS also gave evidence that the consequences of atimalelau are intergenerational. Consequently, the Tribunal accepts that if it was to determine that any of the AA family have a well-founded fear of persecution, the claims of all four appellants would be determined in the same way.

(b) Banishment in Samoa

[84] Banishment is a feature of Samoan life which is perhaps not as uncommon as it might first seem. Associate Professor in History at the University of the South Pacific, Morgan Tuimaleali’ifano, observes in “Village Authority & Governance in Samoa: The case of O le Afioga Tutasi a le Aiga Taua’ana, Falelatai” (paper presented to Samoa Conference II, National University of Samoa, Apia, 4-8 July

2011):

While I do not have precise figures, I believe the banishment has dire consequences for Samoa’s future footprints. To be sure, some villagers are reinstated and return, but many do not. Banishment has led many families to find alternative accommodation. Many are unable to afford freehold property and many live in settlements such as Vaitele, which are bursting at the seams. Many eventually move out of Samoa.

[85] Tuimaleali’ifano identifies three forms of banishment: tua ma le faiganu’u where an individual may stay in the village but is not permitted to participate in village governance; tua ma le nu’u (behind the village) which implies banishment from the village; and a third, ati ma le lau (the type of banishment Ms SS has identified in the AA family’s case) which means that a family must immediately depart the village and their property is appropriated, slashed or burned. This third, and most serious, kind of banishment implies that the identity and existence of those banished are erased from memory.

[86] This type of banishment from a village where the banished, like the AA family, will normally have family and family land, is a potential breach of Article 12 of the International Covenant on Civil and Political Rights. Article 12 states:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

...

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

...

[87] The Human Rights Committee’s General Comment 27 CCPR/C/21/ Rev.1/Add.9 (1999) at [6] provides that the “... state party must ensure that the rights guaranteed in Article 12 are protected not only from public but also from private interference”. The Committee offers as an example of a breach of Article

12 the situation where a woman’s right to move freely and choose her residence is made, whether by law or practice, subject to the decision of another person, including a relative.

(c) Legal response to Banishment

[88] The concept of banishment and its place in Samoan customary and legislative law has been addressed on a number of occasions by the Samoan Supreme Court and Court of Appeal.

[89] A case note by Miranda Forsyth, senior law lecturer at the University of the South Pacific, discusses Leutuala v Mauga, Kilfifi et al [2004] WSSC 9, a Samoan Supreme Court decision dealing with banishment (see Miranda Forsyth “Banishment and Freedom of Movement in Samoa: Leutuala v Mauga, Kilfifi et al” (2004) 8(2) Journal of South Pacific Law). The case dealt with banishment of a schoolboy and his family after allegations were made of misconduct by the boy towards the village’s pastor and the pastor’s family. Forsyth observes that the judgment of Justice Vaai in Leutuala demonstrates that the “courts can play a crucial role in supervising and controlling the powers of the village council”.

[90] Dealing with the village leaders’ submission that banishment was an appropriate remedy given the ‘custom and usage’ of their particular village and the special position held by a pastor, Vaai J stated:

Perhaps the most unpleasant consequence of the submission is that with hundreds and hundreds of Village Councils in Samoa and with so many variations and different interpretations of customs and usages as well as the different procedures adopted by the different Village Councils, fair and equal treatment of village residents cannot be guaranteed. Article 9 of the Constitution confers on every

person a right to a fair trial which includes the right to be informed promptly and the right to defend himself.

[91] Vaai J confirmed that the Village Fono Act 1990 did not confer on fono the legal authority to order banishment from a village. His reasons were that, first, banishment from a village is not only preventative but also punitive. To allow fono to order banishment, he said, “would be tantamount to winding back the clock of progress”.

[92] Second, Vaai J recorded that the Village Fono Act simply authorises each village council to exercise its powers and authority in accordance with the custom and usage of the village. Section 6 of the Village Fono Act gives the fono authority to impose traditional punishments (for village rules broken) such as the imposition of fines or provision of fine mats, animals or food. Power and authority are not defined and cannot include something unlawful or contrary to law.

[93] It followed that a fono could not order anyone to be removed from customary land as that power is lawfully vested in the Lands and Titles Court (as per the Lands and Titles Court Act 1981). Vaai J stated that the exclusion of the power to banish as a punishment was intentional on the part of the legislature. Given there was no guarantee of a fair trial, including the procedure of giving notice to the accused person, it would be “difficult, in fact impossible to comprehend” why the legislature would have given fono the power to make banishment orders.

[94] This approach was followed by Slicer J in Tutuila v Punitia [2012] WSSC

107 (21 June 2012), a case before the Supreme Court of Samoa in which the plaintiff and her family were banished from their village by the fono following a Land and Titles Court decision permitting the plaintiff and her family to continue residing on land the fono considered should be used for the expansion of church grounds.

[95] Slicer J discussed banishment in terms of section 2 of the Village Fono Act which defines village misconduct as “any act, conduct or behaviour which is or has been traditionally punished by the Village Fono of that village in accordance with its custom and usage”. His Honour determined that different villages might develop variations in custom or tradition but that the section was not open-ended and was not a weapon to be used by the majority “to act on whim” (at [25]). It was also noted that the banished plaintiff had not been provided with any notice of the meeting which ended with the sanction of banishment, thereby breaching the right

to a fair trial. The Supreme Court awarded damages totalling over WST900,000 for the unlawful banishment of the banished plaintiff and her family.

[96] Slicer J also cited section 6 of the Village Fono Act which does not permit “disproportionate or capricious punishment” (at [27]). His Honour described banishment as:

... a limited power and does not extent to banishment of the innocent, for politics, difference of religion or a device to deprive persons of their land. It does not extend to a non resident or a person, other than a matai who resides on freehold or leasehold land.

[97] When the village leaders appealed the Supreme Court judgment, in Punitia v Tutuila [2014] WSCA 1 (31 January 2014), the Court of Appeal (Fisher, Hammond and Blanchard JJ) clearly dismissed the notion that a fono had any legal power to banish (at [39]):

Even assuming that the power to banish under customary law had survived the Village Fono Act, which we do not accept, the constitutional question is whether the customary village power to banish has continued to represent a reasonable restriction in the interests of public order.

[98] On that further question, the Court of Appeal did not accept that a customary law permitting banishment by fono represents a reasonable restriction in the interests of public order. It noted that if village fono wish to banish they are not denied the opportunity completely, as there is a “carefully circumscribed power of banishment” vested in the Land and Titles Court wherever justified. The Court’s final word on banishment by fono was (at [43]):

Direct banishment decrees without the involvement of the [Land and Titles Court]

are unlawful and a breach of the Constitution.

[99] Counsel for the appellants submits that there are three features of the present case which distinguish it from Tutuila. These are that the fono in Tutuila banished the family in direct defiance of the Land and Titles Court decision, a clear abuse of power. Second, that the matter concerned a land dispute, not a deeply felt spiritual and sacred cultural law as in the present case. Third, the Court in Tutuila was occupied with the issue of damages whereas there was no monetary amount attributed to the actual banishment.

[100] As to the first submission, that the Tutuila family was banished in direct defiance of a Land and Titles Court decision whereas the AA family was not, the Tribunal does not accept this to be a factor distinguishing the cases. The outcomes of the companion decisions of the Supreme Court in Tutuila and the Court of Appeal in Punitia were not premised on the fact there was a pre-existing

Land and Titles Court decision prior to the purported banishment by the village leaders. Both decisions state clearly and simply that banishment is unlawful and unconstitutional if it is not undertaken by the Land and Titles Court.

[101] Nor is there any basis on which to conclude that the issue of an unconstitutional banishment by a fono would be decided in a different way simply because the trigger for banishment was the breach of a customary incest prohibition, rather than as a result of a land dispute. No such distinction is made in any of the case law to date. The case of Leutuala, for instance, dealt with a personal and/or family conflict rather than a land dispute.

[102] Finally, contrary to the third submission, the Samoan courts appear to be willing to award “vindicatory damages” (see Court of Appeal in Punitia at [92]) by way of compensation for banishment per se. It is acknowledged that the Court of Appeal reduced the award of damages to the Tutuila family for “intangible harm”, described (at [85](b)) as physical or mental suffering, humiliation, invasion of privacy, and loss of freedoms of speech or movement, but this was in part due to the “very high special damages” (at [95]) and does not detract from the Samoan courts’ willingness to make such awards.

[103] Mr and Mrs AA’s so-called banishment order was not issued by the Land and Titles Court. It is therefore unlawful and a breach of the Samoan Constitution. Furthermore, Mr AA and his family received no notice prior to the meeting of the fono (at which he and Mrs AA were presumably banished) and were therefore unable to represent themselves. That constitutes a further breach of natural justice principles. The Tribunal is satisfied that appropriate safeguards against such arbitrary or unjust banishment exist under Samoan law.

(d) Willingness to exercise legal remedy

[104] It is further submitted by counsel that even if the legal determination in Tutuila is that a fono does not have the power to banish, this has no effect on how fono exercise their powers in reality. Evidence of that reality, it is contended, is the issuing of the banishment order by the fono in situations such as the present case.

[105] However, as already discussed, insofar as some village fono persist in issuing unlawful banishment orders, there is a domestic legal remedy available to the AA family. In answer to a question at the hearing, Mr AA said that he would choose not to instigate legal proceedings against the village council of Village B because fono have more authority than the courts in Samoa. While this may

appear to Mr AA to be true in terms of the day-to-day running of the village, it is simply not correct when it comes to challenging a banishment.

[106] Mr and Mrs AA say that if they were to return to Samoa now they would not attempt to return to Village B because of the hostility they would encounter there. Mr AA gave evidence that he would only countenance a return to the village if his mother and half-siblings agree to a reconciliation. As noted above, he would not choose to initiate legal proceedings in regard to the alleged banishment.

[107] On the question of the availability of state protection, in Refugee Appeal No

75228 (19 November 2002), the Refugee Status Appeals Authority (RSAA)

observed (at [90]):

Refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable

[108] Tuning to consider the issue of the exhaustion of domestic remedies in the context of claims for refugee status, and drawing on the well-known decision of the Supreme Court of Canada in Canada (Attorney General) v Ward [1993] 2 SCR

689, the RSAA held (at [100]):

Because the issue of domestic remedies is in the present case so directly relevant to the question of state protection, we wish to underline the point that international human rights law itself gives considerable emphasis to available domestic remedies. The Ward principle is consistent with the general principle recognised in international human rights law that domestic remedies should be exhausted before recourse is had to an international forum. As we apply international human rights instruments in our determination of the persecution element of the Refugee Convention, it is appropriate that the relationship between the Ward principle and the exhaustion of domestic remedies be acknowledged.

[109] In that case, the appellants feared harm in both Indonesia and Malaysia as a result of their inter-faith marriage, but had taken no steps to register their marriage in either country. The RSAA held that they had not established that there would be a failure of effective state protection (at [111]).

[110] Given the clear legal position regarding the unlawfulness of the fono’s action against the AA family, there is little doubt that the fono would be forced to rescind their banishment. The Tribunal recognises that the shame attached to the allegation of incest and of dishonouring his family may make taking proceedings an uninviting prospect for Mr AA. Notwithstanding this, if the AA family chooses not to avail itself of an available legal remedy, this cannot be said to amount to a failure of state protection for the purposes of the Refugee Convention.

(e) Threats of physical harm

[111] Evidence was also given (and accepted) that there have been threats of physical harm from various members of Mr AA’s family in the past.

[112] Mr AA’s half-brother KK threatened DD physically shortly after his discovery of her pregnancy to her second cousin. On that occasion, KK went to the AA home and would not leave until warned by Mr AA that he would call the police. That was in 2009 and there was no evidence given that KK made any further threats or attempts to physically harm their daughter DD, Mr AA or any other member of his family. This was despite the fact that Mr AA and KK continued to work together.

[113] GG was another relation of Mr AA, apparently also a relative of the father of DD’s child, who made threats against the family, including threatening Mrs AA and/or her family with death (see [34] above). She also made sexual allegations against DD. Nonetheless, while GG made her presence known both physically and online in early 2009, the family had no further contact from her until approximately 2011 when, during the course of an argument with the eldest sister CC at the AA family home, she assaulted CC. It is understood that the police were called but it was not claimed that CC was badly hurt.

[114] As to threats of future physical harm from family members in Samoa, such threats have been conveyed to Mr and Mrs AA principally by Mr AA’s mother and Mrs AA’s niece in Village B. Witnesses PP and Ms SS also referred to incidents in their experience where banished parties have been physically harmed. Ms SS highlighted the fact that violence against banished persons is referred to in some of the Samoan legal cases including, in one worst case scenario, a banished person being killed. However, that particular instance occurred in 1993. The reaction to it in Samoa was described as one of “outrage” and the perpetrators of the offence were, in line with the normal course of the criminal justice system, charged with murder and manslaughter (see Slicer J’s judgment in Tutuila, at [44]).

[115] A murder (which was treated as such) related to a case of banishment

22 years ago, together with isolated incidents of harm experienced by some victims of banishment, does not provide any basis for concluding that the risk of physical harm to the appellants rises to a real chance level. It remains only a remote and speculative possibility.

[116] On the evidence presented, the Tribunal finds that the strongest reactions were demonstrated by Mr AA’s family in Samoa at the time of his daughter DD’s pregnancy in early 2009 and when she transgressed the incest prohibition for a second time in late 2014. In between, when DD visited Village B herself in 2011 for instance, she was not welcomed but she was not hurt or threatened. Mr AA’s family have told him they have disowned him and Mrs AA’s sisters living in Village B have not contacted her for months. The status quo is one of ignoring the appellants rather than seeking them out to harangue or threaten them.

[117] It is accepted that should the AA family issue proceedings against the Village B council this would increase the risk of heightened feelings by Mr AA’s family and also some villagers. The first point to be made, however, is that there is no reason to conclude this will lead inexorably to harm, as opposed to ostracism (as happened with DD when she returned to the village in 2011).

[118] Second, in the event of the threat of harm, any concerns the AA family has could be easily brought to the attention of the police. While Ms SS’ evidence as to the size of the Samoan police force and its reluctance to challenge decisions of the fono is taken into account, the issue here is not so much a perceived

‘challenge’ by the police to the fono by intervening in a dispute arising from an (unlawful) decision it has made, but enforcement of the general law. There is no evidence or country information before the Tribunal that establishes that the police force or criminal justice system in Samoa are so unwilling or unable to protect so- called banished people as to mean that adequate and effective domestic protection is not available to the AA family.

(f) Living in Apia

[119] On the evidence given by Mr and Mrs AA that they do not wish to return to Village B, and given the public attention and shame and family hostility that the option of issuing proceedings and/or returning to Village B would potentially engender, the Tribunal accepts that the AA family is unlikely to try and return to their home village. It is also accepted that they cannot simply move to another village in Samoa. It is most likely they will have to rent accommodation in the more urbanised environment of Apia.

[120] If the appellants were to live in Apia, the possibility of meeting people who might have a special allegiance to Mr AA’s half-siblings or to his village and who will consequently wish to hurt them is remote and speculative. Also speculative is

the contention that members of the family would actively seek out Mr AA or any other family member in order to hurt them.

[121] It is accepted that finding accommodation and employment in Apia will be challenging. Nonetheless, the appellants do not point to any restrictions by the Samoan state on their ability to rent accommodation or seek employment, or be employed in either the public or private sector, in Samoa.

[122] Mr and Mrs AA will face the same challenges and have the same opportunities for obtaining employment as any other person with similar skills in Samoa. If they are identified as the parents of a woman who has been accused of an incestuous relationship, this may be an impediment in the eyes of some potential employers, but there is no suggestion that any such reluctance to employ would be with the approval of the state. Further, Mr and Mrs AA have three adult children living in New Zealand which raises the possibility of remittances to help them meet living costs in Apia.

(g) Psychological harm

[123] Setting aside any question of being unable to return to their home village, It is submitted that the cultural consequences of their banishment mean that the AA family’s genealogical and spiritual ties to their ancestry, extended family and land have been “erased” in a permanent intergenerational way. The implication is that this constitutes psychological harm of a serious nature.

[124] Ms SS’ evidence assisted the Tribunal to understand Samoan cultural attitudes to incest (despite the fact that, in palagi terms, their daughter DD’s actions do not appear to be a breach of that taboo) and the sensitivity and shame with which the issue is surrounded. However, any psychological or emotional harm arising from the appellants’ culturally based ostracism does not engage the Refugee Convention. The Samoan state does not condone or encourage such practice and potential harm to the appellants is minimised by the Samoan courts’ confirmation that banishment is unlawful. Any feelings of shame that impinge on the family’s enjoyment of life are self-imposed or culturally imposed mores over which the Samoan state has no responsibility.

[125] Moreover, there remains in the Samoan culture the possibility of reconciliation, a point acknowledged in Mr AA’s evidence that he would never return to Village B unless there was a reconciliation organised by his mother. There is also the possibility of the family living in the more urban environment of

Apia. While Mrs AA believes that the children would be teased at school, there is no suggestion that they would be unable to attend school in Samoa.

[126] Notwithstanding the Tribunal’s findings in the present appeal, it does recognise the AA family’s humanitarian circumstances. The family faces ostracism and cultural dislocation from their wider family grouping. Moreover, the appellant children EE (aged 15) and FF (aged 13) have lived in New Zealand for nine years and have little or no memory of life in Samoa. Their three older siblings and their one niece all have permanent status here. Mr and Mrs AA have made numerous efforts to attain legal immigration status in New Zealand over the years, latterly against the backdrop of rejection by their family and village in Samoa. Presently, in the absence of Ministerial intervention, Mr AA and the other appellants are not eligible to lodge humanitarian appeals against their liability for deportation.

[127] However, these circumstances do not provide a basis for finding any of the appellants to be entitled to refugee status. Objectively, on the facts as accepted, the Tribunal does not find there is a real chance of any or all of the appellants suffering serious harm arising from a breach of their human rights demonstrative of a failure of state protection if returned to Samoa. It is not therefore necessary to address the issue of the youngest daughter being a United States national, although the Tribunal notes that in any event it has not been contended that she has a well-founded fear of being persecuted there.

[128] For these reasons the first principal issue is answered in the negative.

Is there a Convention reason for the persecution?

[129] Where a claimant is not found to have a well-founded fear of being persecuted, it is unnecessary to go on to consider the second limb of the test, that is, whether there is a Convention reason.

Conclusion on claim to refugee status

[130] For the foregoing reasons, none of the appellants has a well-founded fear of being persecuted if they return to Samoa. They are not entitled to recognition as refugees.

Assessment of the Claims under Convention Against Torture

[131] Section 130(1) of the Act provides that:

A person must be recognised as a protected person in New Zealand under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.

[132] Section 130(5) of the Act provides that torture has the same meaning as in the Convention Against Torture, Article 1(1) of which states that torture is:

... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

[133] The facts relevant to this inquiry are the same as those before the Tribunal in relation to the refugee status inquiry. For the same reasons as have been explained above in relation to the claim to refugee status, the Tribunal finds there are no substantial grounds for believing that any of the appellants would be in danger of being subjected to torture if returned to Samoa.

Assessment of the Claims under the International Covenant on Civil and

Political Rights

[134] Section 131 of the Act provides that:

(1) A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.

...

(6) In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment.

[135] However, section 131(2) provides:

(2) Despite subsection (1), a person must not be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if he or she is able to access meaningful domestic protection in his or her country or countries of nationality or former habitual residence

[136] Again, the facts relevant to this inquiry are the same as those before the

Tribunal in relation to the refugee inquiry. The Tribunal accepts that the collective

banishment of the appellants is a punishment that, while imposed by a lawfully constituted body, the village fono, is nevertheless unlawful. But, just as the appellants must establish that there will be a lack of effective and meaningful protection in the context of their refugee claims, they must do so in relation to their claim for protected person status (see section 131(2) above). That is, where there exists an effective domestic remedy which would obviate the danger of the appellants being subjected to cruel treatment, compelling evidence must be shown to establish that this is not available to them. For the reasons given in relation to their refugee claim, the appellants have not done so.

[137] As for their socio-economic predicament, if Mr and Mrs AA cannot find paid employment and are forced to resort to remittances from their three adult children in New Zealand, whatever hardship that entails will not be as the result of any action or inaction by the Samoan state. It does not constitute a sustained or systemic violation of a core human right demonstrative of a failure of state protection. In particular, it does not constitute “treatment” within the context of the prohibition on cruel, inhuman or degrading treatment in Article 7 of the International Covenant on Civil and Political Rights (see generally BG (Fiji) [2012] NZIPT 800091).

[138] For the same reasons as above, the Tribunal is satisfied that there are no substantial grounds for believing that the appellants would be in danger of being subjected to arbitrary deprivation of life or cruel, inhuman or degrading treatment if deported from New Zealand. Accordingly the Tribunal is not satisfied that the appellants are entitled to recognition as protected persons under section 131 of the Act.

CONCLUSION

[139] For the foregoing reasons, the Tribunal finds that the appellants:

(a) are not refugees within the meaning of the Refugee Convention;

(b) are not protected persons within the meaning of the Convention

Against Torture;

(c) are not protected person within the meaning of the Covenant on Civil and Political Rights.

_{[140] The appeals are dismissed.}

“A M Clayton” A M Clayton Member

Certified to be the Research

Copy released for publication

A M Clayton

Member