1510442 (Refugee)

[2017] AATA 986

1510442 (Refugee) [2017] AATA 986 (2 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510442

COUNTRY OF REFERENCE:                  Solomon Islands

MEMBER:Tigiilagi Eteuati

DATE:2 May 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 02 May 2017 at 6:59pm

CATCHWORDS

Refugee – Protection visa – Solomon Islands – Threats from ex-girlfriend’s family – Lack of state protection – Fabricated claims – Credibility issues

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 36, 65, 91R, 91S, 424AA, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Solomon Islands, applied for the visa [in] November 2014 and the delegate refused to grant the visa [in] July 2015.

3. The applicant appeared before the Tribunal on 29 April 2016 to give evidence and present arguments.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Refugee criterion

5. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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, is unable or, owing to such fear, is unwilling to return to it.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. 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 a protection 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 the applicant 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

    CLAIMS AND EVIDENCE

19. In his protection visa application, in response to the question as to why the applicant left the Solomon Islands, the applicant stated:

    “I LEFT MY COUNTRY AND JOB DUE TO CONTINUOUS THREATS POSED ON MY LIFE BECAUSE OF MY RELATIONSHIP WITH A GIRL FROM [TOWN 1], MALAITA PROVINCE, SOLOMON ISLANDS. I HAVE ALWAYS BEEN CHASED BY GROUP OF MEN ARMED WITH KNIVES AND SOME KIND OF WEAPONS ALMOST EVERY DAY.

    THEY CLAIMED TO BE THE BROTHERS AND UNCLES OF THE GIRL WITH WHOM I FELL IN LOVE. I WAS ONLY LUCKY TO ESCAPE THE TRAPS THEY OFTEN SET FOR ME.

    I FELT THAT MY LIFE WAS REALLY IN GREAT DANGER SO I HAD TO LEAVE MY JOB AND COUNTRY AND COME TO AUSTRALIA.”

20. In response to the question as to whether  the applicant had ever experienced harm in the Solomon Islands, the applicant stated:

    “I WAS JUST LUCKY THAT I HAVE ALWAYS MANAGED TO ESCAPE EVERY TRAPS AND PLOTS OFTEN SET FOR ME. BEING SUBJECTED TO THIS KIND OF FEARFUL SITUATION HAS BEEN THE WORST EXPERIENCE EVER.
    IT IS INDEED MENTALLY HARMFUL BEING SUBJECTED TO KIND OF SITUATION, WHERE ALMOST EVERYDAY PEOPLE ARE LOOKING OUT TO KILL YOU.
    COMPARING MY MENTAL STATE OF STABILITY WITH BEFORE I CAME TO FACE THIS SITUATION, THINGS ARE NOT REALLY THAT NORMAL ANYMORE, ESPECIALLY IN THE EVENTS OF FEAR OR SHOCK.
    I HAVE LOST THE ABILITY TO MAINTAIN MY MENTAL CONFIDENCE IN THE EVENTS OF FEAR.”

21. In response to the question as to what the applicant feared may happen if he returned to the Solomon Islands, the applicant stated:

    “MY GREATEST FEAR IS THAT THEY WILL HAVE ME KILLED IF I GO BACK.

    HAVING BEEN ABLE TO ESCAPE THE TRAPS OFTEN SET FOR ME WAS INDEED A GREAT MIRACLE. TO ME, GOING BACK WOULD MEAN ‘GIVING UP ON LIFE.’ HOWEVER, I STILL BELIEVE I HAVE A FUTURE TO ACHIEVE. HENCE I DO NOT WANT TO GO BACK.”

22. In response to the question as to who the applicant thought would harm/mistreat him if he were to return to the Solomon islands, the applicant stated:

    “THE BROTHERS AND THE UNCLES OF [MS A], MY GIRLFRIEND.”

23. In response to the question as to why the applicant thought he would be harmed if her returned to the Solomon Islands, the applicant stated:

    “THEY WANT TO HAVE ME KILLED NOT ONLY BECAUSE OF THE RELATIONSHIP WITH [MS A], BUT ALSO BECAUSE I BADLY INJURED TWO OF THEM WHEN I GOT INTO A FIGHT WITH THEM FOR DEMANDING UNNECESSARY COMPENSATIONS.

    IT IS IMPORTANT TO HIGHLIGHT THAT [TOWN 1 PEOPLE] TAKE SUCH CASE SO SERIOUSLY AND THE ONLY PENALTY FOR SUCH IS DEATH OR SERIOUS HARM EVEN IF YOU PAY HUGE AMOUNT OF MONEY FOR COMPENSATION.

    I HAVE PAID COMPENSATION THREE TIMES ALREADY, BUT THAT DID NOT HEAL ANYTHING, THEY HAVE BEEN TRYING TO KILL ME. IT WAS INDEED A MIRACLE THAT I HAVE ALWAYS MANAGED TO ESCAPE THEIR TRAPS SET FOR ME.”

24. In response to the question as to whether the applicant thought that the Solomon Islands authorities could and would protect him if he were to return to the Solomon Islands, the applicant stated:

    “FROM EXPERIENCE AND OBSERVATION, POLICE OFFICERS OR PROTECTION RESPONSIBLE AUTHORITIES IN MY COUNTRY DO NOT HAVE SO MUCH CONCERN FOR CASES SUCH AS PERSONAL THREAT ENCOUNTERS AND DOMESTIC VIOLENCE.

    THEIR FOCUS IS MORE ON WHAT THE PUBLIC WITNESSES. IN OTHER WORDS, THEY ONLY TRY THEIR BEST TO ADDRESS THE PROBLEMS THAT ARE EXPOSED TO THE PUBLIC AND NOT WHAT INDIVIDUALS ARE FACING.

    I HAVE REPORTED MY CASE TO THE POLICE TWICE ALREADY, BUT NOTHING HAS BEEN DONE ABOUT IT. THE PROTECTION RESPONSIBLE AUTHORITIES DO NOT ONLY TAKE THINGS LIGHTLY BECAUSE OF THEIR FOCUS IS SO MUCH ON PUBLIC AFFAIRS, BUT ALTIMATELY BECAUSE THEY DO TAKE THINGS PERSONAL. THEY ONLY INTEREST IN SERVING THEIR RELATIVES AND FRIENDS BEFORE OTHERS.

    THIS NON-PROFESSIONAL ATTITUDE IMPLIES TO ME THAT THERE IS NO WAY I CAN TRUST THESE PEOPLE TO PROTECT ME.

    THEY WOULD ONLY DO ANYTHING ABOUTMY CASE PROBABLY AFTER I GET KILLED OR HARMED.”

25. The applicant also provided an undated typed statement with his application which contained the following claims relevant to this review:

    “THREATS THAT I FACED IN LIFE

    I have been living a good and wonderful life. I have been so much optimistic about having a wonderful future in my career. I thought life ahead of me is going to be a beautiful life, until I met [Ms A] from [Town 1] of Malaita province. [Ms A] is the only girl of the family and she is like a pet to all of her family members and their relatives. They were probably having some different expectations for her life other than being tangled in a relationship which according to them might lead to ruin her life. This was so obvious in their reaction when they learned that she was in a relationship with me. Only thing they ever wanted was to have me killed. Since that time, they have been doing everything they could to kill me, but I was so fortunate and blessed to continuously escape all their attempts.

    The first time I can remember was [in] May 2014, when I was on my way to work. Before I could reach my workplace, I had to catch two buses. At the stop-over (at a place called [Location 1] about [distance] KM from [his workplace]), I dropped to catch another bus to my destination. There were lots of people there that morning waiting for buses as well. While I was standing there waiting, I saw five men were approaching (three of them had knives in their hands), I knew they were coming for me. Not knowing that I was already surrounded by other three of them, I turned to run but one of them put a knife on my throat while another held his knife against my rib. People were there watching everything that was taking place, but none of them wanted to involve as they were all scared. They were speaking their own native language but all I could understand was; the guy who was holding his knife against my rib was asking if he could put my life to an end. I was crying and asking them if they could spare my life and I would give them whatever they want. Another guy was then demanded $[amount]. On that particular morning, I was lucky to have $[amount] in my wallet and so I gave it all to them and they left me unharmed.

    [Two days later], I was telling stories with one of my friends [at] a place called [Location 2] - [Town 2]. We sat there and we were telling stories [when] a car drove passed us and made a rush turn when they saw us. I knew they were looking for me, so I stood up and tried to have a good look at them. They parked their car just few metres from where we were sitting, and at a distance I could see about four or five men came out of the car with their heads and faces covered with masks and knives in their hands. So I ran out into the darkness from my friend, though I was scared that I might hurt him, but lucky they did not do anything to him.

    After four days, [in] June, I was on my way to work. I caught a public bus once again. While I was waiting to catch another bus to go to my destination, I saw their vehicle on the opposite side of the road of where I was standing. They were probably waiting for me that morning. As I was slinking towards the bush to escape their sight, they saw me, and there were about [number] of them were running after me into the bush, but I escaped in through [Location 1] bush and went to my work place. The week after that incident, I was so scared that I could not go back home, so I decided to stay at my work place. There many times that these people had tried so hard to kill me. I am not able to fully explain or even describe the horrible and fearful situation I was facing back at home.

    I reported this case to the police but no action was taken. I was so hopeless about life so I had to leave the job and home that I love and came to Australia, as I fear they would kill me.

    In conclusion, I would like to sincerely apologise to the Australian Government and the wonderful people of Australia if my presence and seeking the country's protection is a burden in one way or another. I have been thinking that never in my life I would face such terrible and threatening situation like what I have been through. I came to Australia as there is no where else I could find protection, not only that but, coming to Australia is the only cheapest destination for me.”’

26. The applicant provided the Department with three letters in support of his application. The first letter was from a [Mr B], a friend of the applicant which purported to provide details of three incidents where he claimed he witnessed the applicant being pursued by his ex-girlfriend’s family members.

27. The second letter was purportedly from the applicant’s [relative] who made general statements about the applicant being in danger from his ex-girlfriend’s family. The third letter was purportedly from the chief of the applicant’s village[which] outlined attempts made to settle the dispute with the family of the applicant’s ex-girlfriend by traditional means.

28. The applicant provided a letter dated [January] 2015 which purports to have been sent by the applicant to the Solomon Islands police in which the applicant claims that he reported being threatened [in] May 2014 and [June] 2014. The letter asked that the police confirm his reports and sought an update on any progress made in relation to the reports.

29. The applicant also provided the Tribunal with a letter dated [April] 2016 in which he responded to issues raised and findings made by the Minister’s delegate. The applicant also provided the Tribunal with a copy of a letter purportedly from his [sibling] which stated that the applicant’s ex-girlfriend’s family had been threatening his family and had chased his family from their home [in] December 2016 and [damaged their property].

30. At the hearing before the Tribunal, the applicant claimed to have been born in Malaita, Solomon Islands. He claimed to have been raised in [Village 1] village in [Malaita]. The applicant claimed that both his parents and [siblings] currently lived in [Village 1] with his parents. The Tribunal indicated that, in his protection visa application, the applicant had claimed that [a few] of his siblings lived in [Town 2]. The applicant said that they were attending educational institutions and would live in [Town 2] while schooling but return to [Village 1] during holidays.

31. The applicant claimed that he met is ex-girlfriend in May 2014 at [a venue] in [Town 2]. He claimed that he had gone to the [venue] with some workmates. The applicant claimed that he and his ex-girlfriend were drunk and she ended up staying the night at his [house]. The applicant claimed that after that night he and his ex-girlfriend were a couple. He said that the day after they met, his ex-girlfriend told him that she was from [Town 1]. He said that he realised from that point that if the relationship was discovered he would have to pay compensation to his ex-girlfriend’s family. However, the applicant said that he did not realise that her family would pursue him as they did. He said that his ex-girlfriend’s family took advantage of the local culture to try to extract the maximum amount of money from him. The applicant indicated that he was first threatened by his ex-girlfriend’s family towards the end of May 2014. He said that he ended the relationship after he was first threatened and he had not seen his ex-girlfriend since he was threatened.

1. The Tribunal indicated that it did not appear that they had been in a relationship for very long if they met in May and then ceased seeing each other within the same month. The applicant then said that they had been seeing each other for months before they split and that he must have met her in March or April 2014.

2. The Tribunal asked the applicant when he was first threatened and he appeared to change his evidence and claimed that he was first threatened [in] June 2014. The applicant claimed that he changed buses at the [Location 1] bus station and was waiting for a second bus to take him to [work] in [Town 2]. He said that he was grabbed from behind by 5 or 6 men. He said that one man held a knife to his ribs and another man held a knife in front of him. He claimed that one of the men said in pidgin “You are the one going out with [Ms A] now I want compensation. If you don’t give compensation we are going to kill you.”

3. The applicant claimed that the men demanded SI$[amount] from him. The applicant claimed that he had just over SI$[amount] which he gave to the men which they took and left. The applicant claimed that he caught a bus and went to work. The applicant claimed that after that first threat he did not catch public transport again for fear that he would run into these men again. Instead, the applicant claimed that his [employer]send a bus to pick him up and drop him off at his home.

4. The applicant claimed that the second time he was threatened was two or three weeks later when his friend [Mr B] took him to a public area in [Town 2] called [Location 2]. The applicant claimed that at around [time] or [time] a [car] pulled up about 10 metres from where he was seated. He said that someone called from the car “wait for us there, we are going to come to kill you.” The applicant claimed that four men sprang from the car and ran towards him. He said that they were carrying things in their hands but he could not make out what they were carrying as it was dark. The applicant claimed that the men had masks on. The Tribunal asked why the men would have been driving around with masks on the applicant then changed his evidence and said that they were not wearing masks but had scarves on their heads but their faces were not concealed.  The applicant claimed that the men also said “you’re the one going out with [Ms A] you will have to give compensation.” The applicant claimed that he ran and escaped the men then caught a bus home.

5. The applicant claimed that two or three days later his friend [Mr B] dropped him off at [work]. The applicant claimed that his friend dropped him off about 5 metres from the [workplace] gate. He said that a group of men were waiting for him about 50 metres from the [gate]. The applicant claimed that the men ran towards him and shouted similar things to the men who had previously chased him. He said that he went through the security gate and the men were unable to enter.

6. The applicant claimed that a week or so after that event he was jogging at around [time] or [time pm] in an area [near] the [workplace] when men appeared in the [car] and began chasing the applicant and shouting at him. He said that he ran into the bushes to avoid them and when he returned to the road his friend [Mr B] happened to be passing by and picked him up and dropped him home. The applicant appeared to change his evidence and suggest that this incident had happened before the incident at the [workplace].

7. The Tribunal asked the applicant whether he had ever reported these incidents to police and the applicant said that he had only done so once, after the first threat. The applicant said that he went to the [police] station and reported the first incident to a police officer called [name]. He said he filled in a report about the incident. The applicant then changed his evidence and indicated that he had also been to the same police station and filed a report with the same officer after the second incident at [Location 2].

8. The Tribunal put to the applicant that there were various inconsistencies between what the applicant had said at the hearing and what he had said in his original statement accompanying his protection visa application.

9. First, the Tribunal indicated that in his original statement he had mentioned only three incidents, and had not mentioned the incident when he was jogging or the incident at the [workplace]. The applicant claimed that it was very difficult to complete the application as he was in detention and had limited time and resources to complete the application. The Tribunal indicated that the fact that the applicant had not mentioned two of the claimed incidents may suggest that they did not happen. The applicant insisted all of the incidents described at the hearing had occurred.

10. The Tribunal pointed out that the descriptions given in his original statement were different from those given at the hearing. The Tribunal pointed out that in his original statement he had said that 5 men had approached him at the bus stop and when he had turned to retreat he was caught by three other men who were behind him. The Tribunal pointed out that at the hearing the applicant had stated that 5 or 6 men had grabbed him from behind and that he had not seen them approaching. The applicant was asked for a response and gave none.

11. The Tribunal also pointed out that in his original statement he had indicated that one of the men held a knife to his neck and one to his ribs whereas at the hearing he had said that one man held a knife to his ribs but no one had held a knife to his neck. The applicant said that no one had held a knife to his neck.

12. The Tribunal pointed out that in his original statement he had said that the men demanded SI$[amount] whereas at the hearing he had claimed that the men demanded SI$[amount]. The applicant was asked whether he wished to respond and he did not respond.

13. The Tribunal indicated that in his original statement he had claimed that the first threat happened [in] May whereas at the hearing he had asserted that the first attack occurred [in] June 2014. The applicant said that it had been a long time since the attack and what he had originally written was correct.

14. The Tribunal pointed out that in his original statement the applicant had stated that the second incident had occurred [in] June, just [days] after the original incident, whereas at the hearing the applicant had claimed that the second incident happened two or three weeks after the original incident. The applicant claimed that he had gone through a lot and he had been mentally affected which could explain why there were so many inconsistencies in his evidence.

15. The Tribunal pointed out that in his original statement the applicant claimed that during the second incident four or five men carrying knives and with masks covering their faces had chased the applicant whereas at the hearing the applicant had claimed that there were four men who had not been wearing masks and their faces were not concealed and his evidence was that he did not know what they were carrying.

16. The Tribunal indicated that in his original statement the last incident he described in that statement occurred [in] June, a week after the first incident. The applicant had claimed in his original statement that he again caught public transport to [Location 1] and was chased by a number of men at the [Location 1] bus station. The Tribunal pointed out that this was inconsistent with the claim he made at the hearing that after the first incident where he was threatened at [Location 1] [in] April, he never caught public transport again. The applicant said that he had forgotten about this incident and that he had in fact caught public transport because the [employer’s] bus had been full. The Tribunal indicated that it seemed unlikely that the applicant would catch the same bus at the same time to go to the same bus stop where he had been threatened a week before. The applicant said that this had occurred and he had forgotten about it.

17. The Tribunal asked whether apart from the 2 incidents at [Location 1] bus stop, the one incident at the [workplace], the one while he was jogging and the one at [Location 2] there were any other times he had come into contact with members of his ex-girlfriend’s family. The applicant said that there were no other times and confirmed this when asked to.

18. The Tribunal asked the applicant if he had ever moved to another area of Solomon Islands to avoid danger. The applicant said that after the third incident (the second incident at [Location 1] bus stop) that he travelled to [another island in the] Solomon Islands to avoid danger. The applicant said that he called his friend who lived on [the other island] and said that he was in danger and needed to stay at the friend’s place. The applicant said that he caught an overnight boat which arrived in [the other island] in the morning. He said that he was only on [the other island] for two days before he returned to [Town 2]. The Tribunal indicated that there did not seem much point in travelling all that way to spend two days on [the other island] in order to avoid danger. The applicant said that he needed to return to work and that his friend could not provide him accommodation because he had other people staying at his house.

19. The Tribunal asked whether there was any other reason he returned to [Town 2] after only three days and he said there was not. The Tribunal then put to the applicant information pursuant to section 424AA of the Migration Act 1958. That information was that during the interview with the Minister’s delegate, the applicant had said that he fled [the other island] after two days because his ex-girlfriend had relatives there who had been chasing him. The applicant said that this was the case. The Tribunal asked the applicant why he hadn’t simply told the Tribunal of this incident and the applicant said that this was a further reason why he left [the other island] after two days.

20. The applicant was asked when his village chief visited his ex-girlfriend’s family to give compensation and the applicant did not know the date but he said it was after the third incident.

21. The Tribunal indicated that the village chief’s statement indicated that the applicant had had a fight with members of the girl’s family who had sought further compensation. The applicant said that this had occurred after the chief paid the compensation. He said that 4 men came to his [relative]’s home where the applicant resided and asked for more compensation. He said that he threw a piece of wood at them, injuring one of them and then ran away (the Tribunal notes that in his application form the applicant indicated that he injured two of his ex-girlfriend’s family members). The Tribunal indicated that this appeared to be inconsistent with the evidence he had given that apart from the five incidents he had described he had not come into contact with members of the ex-girlfriend’s family. The applicant said that this had occurred.

22. The Tribunal pointed out that the village chief had also said that members of the family had visited the [relative]’s house on a previous occasion to seek compensation .The applicant said that this had also occurred but he had not been present on that occasion.

23. The Tribunal indicated that in the statement that the applicant provided to the Tribunal the day before the hearing the applicant indicated that when he was detained [in] August 2015 he decided to return to the Solomon Islands and signed all the necessary paperwork. The Tribunal indicated that his willingness to return to the Solomon Islands may indicate that he did not fear returning to the Solomon Islands. The applicant indicated that he did not want to remain in detention and said that he changed his mind about returning in September 2016 around the time he was released from detention when his [sibling] called him and told him that his ex-girlfriend’s family had chased his family from their home in [Village 1] and had [damaged their property]. The applicant said that the other family had indicated that they were seeking revenge for the applicant injuring a member of their family.

24. The applicant said that he had not been in contact with his family since September 2015. The Tribunal pointed out that in his [sibling]’s statement, his [sibling] had indicated that the family had been chased from their house and the [property damaged] [in] December 2015. The Tribunal indicated that this contradictory information could indicate to the Tribunal that this claim relating to the applicant’s family had been concocted and was false. The applicant indicated that his [sibling] must have got the date wrong in [his/her] statement. The applicant then said that he had not heard from his family since Christmas 2015. The Tribunal indicated that this was inconsistent with his claim that he had not heard from his family since September 2015 and that his new claim not to have heard from them since Christmas appeared to be an attempt to explain his [sibling]’s statement that the family had been chased from their home [in] December 2015. The applicant denied this and changed his evidence again and said that he had not heard from his family since February 2016.

25. The Tribunal asked where his family were currently and he said that they had fled from village to village and were currently residing in [location. The Tribunal indicated that this appeared to be inconsistent with his evidence at the beginning of the hearing that his parents and his [siblings] were all currently residing in their village of [Village 1]. The applicant said that he had not said that his family were living in [Village 1] and then conceded that he had said this but did not mean it.

26. The Tribunal put to the applicant that it was very difficult to believe that the applicant about the incident at the [workplace]. First, if his pursuers were waiting for him at the [workplace], it did not make sense that they were waiting 50m from the gate rather than in front of the gate. Secondly, the applicant admitted that there was a police station [near] the [workplace] and it did not make sense that the applicant did not contact the police [to] report the people at the gate who were threatening his life.  The applicant said he did not know why his pursuers were not waiting in front of the gate. He said that he did not report the pursuers to the police because it was some [distance] to get to the police [station]. When it was pointed out that he could have simply telephoned the [police], the applicant changed his evidence and indicated that he did not contact the police because he had report the first two incidents the day after they occurred and the police had done nothing. The Tribunal suggested that there was a difference between reporting an incident the day after the incident when the whereabouts of the offenders was unknown and reporting that the offenders were waiting at the gate outside the [workplace] where the police could have readily apprehended the offenders. The applicant repeated that the he did not believe that the police would do anything to protect him.

27. The Tribunal also indicated that it was difficult to believe the applicant’s claims as all of them involved him exposing himself by being present in public, twice at a bus stop, once in a park in the middle of town, once by jogging in public and finally by being dropped off at work. The applicant indicated that he did not think that his pursuers would find him.

28. The Tribunal indicated that the failure of the applicant to depart the Solomon Islands until [August] despite being granted a visa [in] July 2014 also indicated that the applicant did not fear harm which may indicate that his claims were untrue. The applicant stated that he did not leaved because he hoped that things would get better and settle down.

29. The Tribunal indicated that despite claiming to have come to Australia to seek protection [in] August 2014 the applicant did not apply for a protection visa until [November] 2014 over a month after his visa was cancelled and he was detained in October 2014. The Tribunal indicated that this may indicate that the applicant did not fear harm in the Solomon Islands. The applicant said that he had been preparing his application since he first arrived in Australia in August. 

30. At the applicant’s request, the Tribunal attempted to contact the applicant’s [sibling] and ex-girlfriend in the Solomon Islands to hear evidence from them. These attempts were unsuccessful. The applicant indicated that he understood that both his [sibling] and his ex-girlfriend were expecting calls from the Tribunal today.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

32. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. 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 him or her. It is the responsibility of the applicant to specify all particulars of the claim 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 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, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

33. The Tribunal finds the applicant is a national of the Solomon Islands. He provided a copy of the identity information pages of his Solomon Island passport to the Department. The applicant made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against the Solomon Islands for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered [Town 2], where he last lived, to be his home region.

34. The Tribunal does not accept that the applicant was ever harmed or threatened by his ex-girlfriend’s family, either because of his relationship with her, or because he harmed a member or members of his ex-girlfriend’s family. The applicant’s evidence during the hearing was contradictory, inconsistent, and he often changed his evidence. The applicant’s evidence at the hearing was also, in significant parts inconsistent with his written evidence and with the letters he had provided in support of his application.

35. The applicant gave inconsistent evidence in relation to a number of matters including, when he met his ex-girlfriend, when he was first threatened, how many times he was threatened, the circumstances of the various incidents where he claimed to have been threatened, how many times he went to the police to report threats, the period of time over which the various incidents took place, whether he took public transport again after he was first threatened at the bus stop, whether he was confronted by his ex-girlfriend’s family members at his [relative]’s home, when he was last in contact with his family and where his family were currently residing.

36. The Tribunal finds it particularly telling that the applicant could not provide consistent evidence about what had happened to him, when it happened and over what period. In his original application, the applicant only provided details of three incidents where he claimed he was confronted by his ex-girlfriend’s family members and claimed that all three incidents occurred over the [period] from [May] to [June]. At the hearing however, the applicant began by describing four incidents which occurred from [June] until around the end of July 2014. Strangely, only two of the incidents described at the hearing were in any way similar to the three incidents described in the applicant’s original statement. Two new incidents were proffered at the hearing, one which occurred while he was jogging and another which occurred when he was dropped at work. These two incidents had previously been mentioned in [Mr B]’s letter but were not mentioned in the applicant’s original statement. It is noted that the letter provided by [Mr B] after the applicant had lodged his protection visa application described three incidents involving the applicant being confronted by his ex-girlfriend’s family and only one of those described was mentioned by the applicant in his original statement. The first incident [Mr B] described happened [in] June 2014 and the final incident occurred [in] July 2014.

1. In his original statement, the applicant claimed that [in] June, about a week after he was confronted at the bus stop, he returned to the very same bus stop at the same time of the day and was again confronted by members of his ex-girlfriend’s family.  The Tribunal pointed out that the applicant had not mentioned this incident at the hearing and had in fact given evidence that after he was first confronted at the bus stop that he never used public transport again in order to avoid a repeat of the confrontation. The applicant claimed that he had forgotten about the this incident and that he had to catch the bus because the [employer’s] bus had been full.

2. The Tribunal specifically asked the applicant whether other than five incidents he now recalled whether there were any other incidents when he had been confronted or threatened by members of his ex-wife’s family. The applicant said there were no other incidents and confirmed this again when asked by the Tribunal. The Tribunal then stated that the village chief’s letter indicated that there had been a further confrontation during which the applicant had harmed members of his ex-girlfriend’s family. Despite just giving evidence that the five incidents which he had described were the only incidents to have occurred, the applicant claimed that this sixth incident had also occurred.

3. The Tribunal accepts that in the Solomon Islands, and particularly in Malaita, families of women are often aggrieved by those women engaging in pre-marital sexual relations. The Tribunal accepts that the men involved in such relations are often expected to pay “compensation” to the aggrieved family members of the women involved. The Tribunal accepts that a failure to properly compensate the family in these circumstances can result in conflict and violence.

4. However, in this case, the sheer level of the inconsistency in the applicant’s evidence and his inability to provide any coherent set of claims including being unable to provide a consistent story as to what happened to him, when it happened and over what period of time, lead the Tribunal to conclude that the applicant’s claims have all been fabricated after he was detained by the Department, in order to be granted a protection visa.

5. The Tribunal finds that this conclusion is supported by the fact that the applicant remained in the Solomon Islands for over a month after being granted a visa. The Tribunal does not accept as credible the applicant’s explanation that he thought things would get better in circumstances where, according to his original statement, he had already been confronted and threatened with violence on at least three occasions.

6. The Tribunal also finds that the Tribunal’s conclusion is supported by the fact that despite the applicant arriving in Australia [in] August 2014, he did not apply for a protection visa until [November] 2014, three months after he arrived in Australia and a month after he was detained by the Department in October 2014. The Tribunal does not accept the applicant’s explanation that he had been preparing his application for a protection visa since he arrived in Australia in August 2014. The Tribunal also considers that the Tribunal’s conclusion is supported that the applicant’s admission that he requested to return to the Solomon Islands in September 2015.

7. The Tribunal places no weight on the letters that the applicant has provided in support of his claims. The contents of the letters are inconsistent with much of the evidence of the applicant. The Tribunal considers that the contents of these letters have been fabricated, either by the applicant or those known to the applicant to support his fabricated claims.

Conclusions

1. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively. For the reasons mentioned above, the Tribunal finds that there is no real chance that the applicant would suffer serious harm if he returned to the Solomon Islands. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to the Solomon Islands. Therefore, the applicant does not satisfy the requirements of s.36(2)(a).

2. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.

3. For the reasons set out above, the Tribunal is not satisfied, on the evidence before it, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Solomon Islands there is a real risk the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant does not meet the requirements of s.36(2)(aa).

4. 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

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Tigiilagi Eteuati

Member