1513279 (Refugee)

[2018] AATA 2831

1513279 (Refugee) [2018] AATA 2831 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513279

COUNTRY OF REFERENCE:                  Solomon Islands

MEMBER:C. Packer

DATE:8 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 June 2018 at 11:08am

CATCHWORDS
Refugee – Protection Visa – Solomon Islands – Particular social group – Contravened cultural norms – Failure to pay bride price – Fear of harm from bride’s family - Witness credibility – Inconsistent evidence – False information in application form – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a man [of a particular age], born in Solomon Islands and a citizen of Solomon Islands.

3. The applicant arrived in Australia [in] December 2011, as a holder of a [temporary] visa, and had travelled on a Solomon Islands passport issued [in] 2009 and valid to [2019].

4. On 16 October 2013 the applicant applied for a Protection (Class XA) visa.

5. On 10 February 2015 and 22 May 2015 the applicant attended interviews with the delegate.

6. [In] September 2015 the delegate refused the application.

7. On 28 September 2015 the applicant applied for review of the delegate’s decision.

8. On 9 March 2018 the applicant attended a Tribunal hearing.

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

10. The applicant’s narrative is centred on his fear that people from another family and tribe in the Solomon Islands will harm him because in 1994 he did not pay the bride price for his late de facto partner or compensation when she [died] in [1999]. However, my great concerns with significant elements of the applicant’s narrative and evidence lead me to disbelieve the story in its entirety.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

    Background

11. The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearing. In the written application, the applicant stated that he was born and raised in [a particular location in Province 1]. He stated he had High school education, and had lived and worked in various places around the islands. In the application and during the processing of the application he gave different information about his past and current partners and children.

12. The applicant’s protection visa application showed travel to [Country 1] for [work] in [2008], [2009], [2010], and [2011].

13. The Australian Department of Foreign Affairs and Trade Solomon Islands country brief[1] states in part that Solomon Islands is an archipelagic state situated in the south-west Pacific Ocean, approximately 2,000 kms to the northeast of Australia. Its land mass of 28,400 km² extends over nearly 1000 islands comprising nine main island groups. The capital, Honiara, is located on Guadalcanal, the largest island. The population of Solomon Islands, estimated to be about 599, 500, is predominantly Melanesian (about 95%). In December 1998, existing ethnic tensions on Guadalcanal rapidly escalated. Many Guadalcanal people resented the influence of settlers from other islands and their occupation of undeveloped land in and around Honiara. The settlers, mostly from nearby Malaita, were drawn to Honiara and its environs by comparatively greater economic opportunities. Violent clashes involving rival militant groups erupted, destabilising Solomon Islands and undermining national institutions and coherence. This situation persisted for more than four years. In April 2003, then Solomon Islands Prime Minister Sir Allan Kemakeza wrote to request Australian assistance in addressing the violence. Following consultations between the Governments of Solomon Islands, Australia and New Zealand, a comprehensive package of strengthened assistance to support the Solomon Islands Government - the Regional Assistance Mission to Solomon Islands (RAMSI) - was proposed and unanimously endorsed by a meeting of the Foreign Ministers of the Pacific Islands Forum. RAMSI was a long-term commitment aimed at creating the conditions necessary for a return to stability, peace and a growing economy. RAMSI arrived in Solomon Islands in July 2003 and was a partnership between the Solomon Islands, Australia and fifteen contributing countries of the Pacific region. Australia led a contingent of military personnel, police and civilians. On 1 July 2013, RAMSI's military component was withdrawn and development assistance activities transferred to the programs of other donors, mainly Australia's. RAMSI concluded on 30 June 2017. The conclusion of RAMSI signalled a significant transition for Solomon Islands and was recognition of the Royal Solomon Islands Police Force's capability to independently provide law, order and security for Solomon Islands. Australia continues to support security and stability in Solomon Islands including through a bilateral police capacity development program, which commenced on 1 July 2017.

    [1] [ of claims

14. The applicant claims to fear harm in Solomon Islands from another family and tribe from [Province 1]. His key claims as summarised are:

    ·He fears people from another family and tribe in the Solomon Islands because in 1994 he did not pay the bride price for his late de facto partner [Ms A] or compensation when she [died] in [1999].

    ·In [1999] family of [Ms A] stole his goods, [vandalised] his home in [Province 2] and abducted and held his two sons. He escaped and fled.

    ·In [2007] family of [Ms A] found him in [Province 3] but he managed to escape and fled to [Town 1].

    ·In [2009] in [Town 1] he organised a meeting with family of [Ms A] but during the meeting was hit. He managed to escape and fled to [Town 2], [Province 1].

    ·In [2011] in [Town 1] he was attacked by family of [Ms A]. He managed to escape and fled to [Town 2], [Province 1].

    Evidence

15. The evidence before the Tribunal includes the following material:

    ·the applicant’s Protection visa application form lodged on 16 October 2013, which includes handwritten and typed reasons for seeking protection in Australia

    ·passport pages

    ·country information

    ·applicant’s Application for a [temporary] visa

    ·letter dated 15 February 2014 by [Village Official 1].

    ·written questions sent to applicant by the delegate, and his written response on 23 August 2015

    ·the Protection visa decision record (‘delegate’s decision’) dated 14 September 2015, which is the subject of this review

    ·the application for review, which has attached to it a copy of the delegate’s decision

    ·two statements dated [in] February 2018 by [Ms B]

16. The applicant appeared before the Tribunal to give evidence and present arguments, on 9 March 2018. The hearing was conducted in English. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.

    Assessment of claims: credibility

17. The applicant claims to be a national of Solomon Islands. I sighted his Solomon Islands passport at the hearing and partial photocopies were made. All the available evidence, including the applicant’s oral evidence and familiarity with Solomon Islands, supports his claim to be a Solomon Islands national. Solomon Islands is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the claimed identity.

18. The applicant’s narrative is centred on his fear that people from another family and tribe in the Solomon Islands will harm him because he did not pay the bride price for his de facto partner [Ms A] in 1994 or compensation when she [died] in [1999]. In his narrative, from [1999] to [2011], apart from his [working] visits to [Country 1], he was on the run and hiding from [Ms A]’s family- and for 12 years they searched for him in the Solomon Islands and on several occasions actually found and assaulted him, although he escaped each time. However, after considering the evidence and material before the Tribunal I find that he is in fact married to [Ms C][2] and that this relationship is ongoing as he was living with her and their three adult children in [Village 1] in [Province 1] before he travelled to Australia. I have considered but disbelieve his explanation that this marriage ended in about 1991 and that he has never lived in [Village 1]. These findings, together with my finding that he is not a credible witness, lead me to disbelieve the applicant’s narrative about the ongoing enmity of [Ms A]’s family over an unpaid bride price and compensation. My discussion follows.

    His changeable evidence about his marriages and children

    [2][2] At times he has stated her name as ‘[a different pronunciation]’

19. That the applicant had a relationship with [Ms C] and they had children together was only disclosed late in the processing of his application. His evolving evidence as summarised has been:

    ·In the application he stated his relationship status was ‘de facto’ begun in 1994. He indicated[3] he had no family unit members or other close family members. His statement dated 28 September 2013 indicated: his de facto wife [Ms A] died on [a particular date in] 1999; they had two sons who were abducted by [Ms A]’s relatives.

    [3] Part B, Q10 to Q13

    ·In a Form 80 provided for the application, he indicated he was ‘widowed’, and his deceased partner had been [Ms A].[4]

    [4] Form 80 Q2, Q23 to Q34

    ·At the delegate’s interview on 10 February 2015, the applicant’s evidence apparently only concerned his past de facto relationship with [Ms A]. The delegate then phoned the applicant on 21 April 2015, and as the delegate’s decision shows: “I contacted the applicant via phone on 21 April 2015 to ask him why he had declared on his offshore application that he is married. He responded that he was still legally married to another woman (also named Rose) who he had been with in the 1990s before he began his de facto relationship with [Ms A]. He and his wife separated over 20 years ago and have not had contact with each other since that time. There were no children of that relationship. He declared this marriage on his offshore visa application because he thought it was right to tell the truth, even though he and his wife are long estranged.”[5]

    ·At the delegate’s interview on 22 May 2015, the applicant’s evidence[6] was that he and [Ms A] considered their relationship to be a marriage even “though he was in fact legally married to another woman from whom he had become estranged (he had moved away for work- he was a [particular occupation]- and his wife started a relationship with another man in his absence)”. They had had two children.

    ·The delegate subsequently obtained a full copy of the applicant’s [temporary] visa application. On 19 August 2015 the delegate emailed the applicant[7] information from this that he is married to [Ms C] who lives in [Village 1] and he had declared three children named [Ms D], [Mr E] and [Mr F], all born by [a particular year].

    ·On 23 August 2015 the applicant responded[8] by email that (as summarised):

    o‘[Ms A]’ and ‘[Ms C]’ is the same person but in the phone conversation he forgot what name he had put in the [temporary] visa application and so said ‘[Ms A]’.

    oIn the phone conversation he said no to the question about children as maybe he had not heard properly but in fact they had had three children, [Ms D] and [Mr E], and [Mr F] had died in 2010.

    oHe had declared [Ms A] as his de facto wife and they had two children together. 

    oIn summary, “[Ms C] or [Ms A] we had 3 children (custom married), de facto wife [Ms A] (deceased) we had 2 [children]”.

    o“There was no reason for me not to declare [Ms C] but I didn’t know then how to fill the protection form, I filled the form without assistants.”

    [5] Delegate’s decision at page 14

    [6] Delegate’s decision at page 4

    [7] Delegate’s decision at page 14, email at folio 105

    [8] Delegate’s decision at page 14, email at folio 106

20. His evolving narrative and changeable evidence about his relationships and children raises strong credibility concerns, as discussed at the hearing:

    ·I pointed out my concerns that in his application he failed to disclose anything about [Ms C] and their children. He responded that he is not well educated; he had no assistance when he filled in the application; the application form had not asked about another woman; and they had separated. However, as I then pointed out, he had filled in the application by hand and his answers showed he was fluent in reading and writing English, with answers containing detailed information about his life. As well, I pointed out that a question[9] asked ‘Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of application?’ and he had indicated ‘no’.

    ·I pointed out my concerns that in the delegate’s interview on 10 February 2015 he had not mentioned [Ms C] and their three children all of whom lived in the Solomon Islands. He responded that he had thought it was not a problem for his application, he had not been asked to give this information, and he had just talked about [Ms A]. However, as the delegate’s decision shows, at the February 2015 interview he had given significant information about his life in the Solomon Islands but failed to mention [Ms C] or their three children or his connection with their home village.

    ·I pointed out my concerns that only when the delegate phoned him on 21 April 2015 had he disclosed he had a previous wife, and further he had said she was named [Ms A], and he had said they had no children. He responded that when he had been phoned he could not hear as he was [in a loud environment] and so he just said ‘no’, and he phoned the delegate back to have a conversation. However, as I pointed out, this explanation is not consistent with the delegate’s note of the conversation and the delegate’s decision and neither do they record any difficulties in conversing during the phone call. The applicant also responded that his wife had two names- her birth name was [Ms A] and her baptism name was [Ms C], and he forgot which name he put in the Application for a [temporary] visa. However, as I then pointed out, if she is known as [Ms C] it is unlikely that he became confused as to what name to use when talking about her.

    ·I pointed out my concerns that the number of children he claimed to have was changeable. Firstly, in the application and at the delegate’s first interview he had only spoken of two sons with [Ms A], and then at the delegate’s second interview on 22 May 2015 he said for the first time he and [Ms C] also had two children, and only when later confronted with the Application for a [temporary] visa where he indicated three children, did he claim that one of the children had died. Secondly, he had never named the two sons he claimed to have had with [Ms A] and had not even listed them in the Application for a [temporary] visa. He responded that a daughter [Mr F] had died in 2010 and so he had only spoken of two children, and the sons who are now adults are named [Mr G] and [Mr H]. However, as I then pointed out, he had listed [Mr F] in the Application for a [temporary] visa and did not indicate she was deceased. It is also difficult to accept he had never had contact with [Mr G] and [Mr H] since the claimed abduction, given that they were adults. As well, the applicant’s explanations do not explain why he failed to list two sons [Mr G] and [Mr H] in the Application for a [temporary] visa when he listed other close family.

    ·At the hearing I also used the s424AA procedure when I put my concerns about the changeable evidence he had given the delegate when phoned as shown in the file note[10] of 21 April 2015, and at the delegate’s interview on 22 May 2015.

    The Application for a [temporary] visa

    [9] Part B, question 13

    [10] Folio 75 of the Department’s file

21. Also at the hearing, and pursuant to the s424AA procedure, I put other credibility concerns to the applicant, based on the applicant’s Application for a [temporary] visa that shows:

    ·In answer to question 7 he indicated he was ‘married’.

    ·In answer to the question 18, do you have a spouse, de facto partner, any children, or fiancé who will not be travelling with you?, he stated: ‘[Ms C] (wife)’, [Ms D], [Mr E], [Mr F]-  all at [Village 1], [Province 1].

    ·In the attached [hotel] booking he showed his address was: [Village 1], [Province 1].

    ·In the attached bank statement dated [in] November 2011 his address was shown to be: [Village 1], [Province 1].

    ·In the attached Details of Relatives form dated 8 November 2011 he showed his spouse was [Ms C], and in answer to “All applicants children (whether living with you or not) he showed [Ms D], [Mr E] and [Mr F]. He showed they were all in “S.I.” and did not show any were deceased.

    He indicates he is ‘married’ to a ‘wife’

22. At the hearing I queried whether he indicated [Ms C] was his ‘wife’ in order to assist his Application for a [temporary] visa, as in his narrative they had been a de facto couple and had separated in 1990 or 1991. He responded that he only put her name down because their children were legally his. I then pointed out that he had nonetheless indicated at question 7 that he was ‘married’ and there had been other options he could have indicated such as ‘separated’, ‘divorced’, ‘de facto’. He responded that no one had assisted him with the Application for a [temporary] visa, but as I then pointed out, his evidence about these relationships showed he was well aware of the differences between a marriage and a de facto relationship as well as being separated. In sum, the applicant’s indication in the Application for a [temporary] visa that he was ‘married’ and [Ms C] was his ‘wife’ does not support his claim that they had only had a customary marriage and had separated two decades before.

    He indicates he and his wife and children all live at [Village 1]

23. At the hearing I pointed out that his Application for a [temporary] visa showed [Ms C] and their children lived in [Village 1], [Province 1], and this was different to his evidence at the hearing that [Ms D] and [Mr E] lived with his [relatives] in [Village 2]. He responded that [Ms C] had lived with her [relatives] for a long time since they had separated, and the children lived in [Village 2]. However, his explanation did not explain why he did not indicate this in his Application for a [temporary] visa.  

1. I queried why then did he indicate he and [Ms C] and the children all resided together in [Village 1]. He responded because that was an old address he usually used at the time. I queried why, in an Application for a [temporary] visa, he would use an old address in [Province 1] that he did not live at, when he could have used a more convenient address that he had stayed at such as his [relative]’s address [close] to [Town 1]. He responded that he did not have any reason why he did not use that address. But later in the hearing he gave a fresh reason that addresses are only for people with jobs and as the [relative] does not have a job she does not have an address.

2. I queried whether he had ever lived in [Village 1]. In answer to my questions he stated variously that: it was [Ms C]’s village and he had never lived there; they had lived there at the start; but when I pointed out he had just said he had never lived there, he agreed he had never lived there.

3. In sum, I find that the applicant tailored his evidence as I examined it and this adds to my credibility concerns. I disbelieve his narrative that when applying for a [temporary] visa he used an address of a former partner whom he had not seen since 1990/1991, and that  was an address he was not using and had never lived at. I find implausible that he was unable to use the [relative]’s address because she had no job. Nor do his explanations explain why he showed the children lived in [Village 1] if in fact they lived with his [relatives] in [Village 2] as he stated at the hearing.

   Other information that shows his home is in [Village 1]

4. As discussed at the hearing, he provided additional information with the Application for a [temporary] visa that showed his home address was at [Village 1]: his bank account statement showed that address, and he used that address in his [hotel] booking. The applicant responded that he used that village address as he lived there with [Ms C] before they separated, and after they separated [Ms C] went to live with her [relatives] and he does not know where that is. But as I then pointed out, at the hearing he had twice said he had never lived in [Village 1]. In sum, I find that the applicant tailored his evidence as I examined it and this adds to my credibility concerns.

5. As well, in a Form 80 provided for the application, in answer to the question 61 about the addresses of the places where he had lived during the past 30 years he indicated between [2007] to [2011] the address of [Village 1], [Province 1]. As I put to him at the hearing, this does not support his claim that he had never lived in [Village 1] and had merely used the address for the purposes of his Application for a [temporary] visa. Instead, it supports the contention that in between his [Country 1] trips he had resided in [Village 1].

   His life in the Solomon Islands between [1999] and [2011]

6. Other parts of the applicant’s narrative and evidence about his life in the Solomon Islands between [1999] and [2011] cause me to have credibility concerns with the applicant’s narrative and evidence.

7. In his narrative he fled from [Ms A]’s family to [Province 1] via [Town 2] in [1999] after they destroyed his home. However, his evidence is also that [Ms A]’s family live [in] [Province 1] and [Town 2] is the main port on that island used to alight in [Province 1]. As I put to him at the hearing, despite his explanation that he sought to go to [Town 2] secretly, it is difficult to accept that having had his home destroyed and sons abducted he then fled to the main port of the very island where [Ms A]’s family and tribe lived.

8. In his narrative, he lived in hiding in [Province 1] to [2002] and then went to [Town 1] for a few months and then to [Province 3] from [2003] to [2007]. In [2007] when he was hiding in [Province 3] he was approached by ‘[a number of] young lads’ about [age] who he suspected came from [Province 1] as they had [a particular physical feature], and in a conversation he told them his name. They became angry and told him they were [Ms A]’s relatives and demanded he wait there while they all rushed off to get other men which enabled him to [flee]. He decided to flee [Province 3] by boarding a [ship] to [Town 1] the next day. However, as I put to the applicant, it is difficult to accept that while he was in hiding he told such strangers his personal details particularly as he thought they were from [Province 1], and his response that he had trusted them at first which was a mistake, was unconvincing. It is difficult to accept that all of the angry youth then merely left him which enabled him to readily flee, and his response that this was just a lucky break was similarly unconvincing. Nor was I persuaded by his story about [details of travel removed].

9. In his narrative, he next resided with his [relative] [on] the outskirts of [Town 1] while he applied for [a Country 1] visa, then he went to a remote village in [Province 4] where he awaited the visa, before returning to and from [Town 1] when he travelled to [Country 1] for work [in] 2008. He again went to [Province 4] until returning to and from [Town 1] for his second trip to [Country 1] from [a particular time in] 2008 to [a particular time in] 2009. [Later in] 2009 in [Town 1] a meeting with [Ms A]’s family went bad when he was hit unconscious and so he again fled to [Town 2] in [Province 1], where he stayed in two villages before returning to [Town 1] to fly out to [Country 1] for his third trip [in] 2010. He next went from [Town 1] to an island in [Province 4], before travelling to [Province 1], then back to [Province 4], and then to [Town 1] where he departed for his fourth [Country 1] trip [in] 2011. [At a later time in] 2011 in [Town 1] he had planned another meeting but was attacked by [Ms A]’s family and so he fled to [Province 1] via [Town 2] where he stayed with a [relative] in [a particular location]. He next returned to [Town 1] where he applied for the [temporary] visa, travelled to [Province 3], and then returned to [Town 1] to get the [temporary] visa and depart the Solomon Islands.

10. But as discussed at the hearing, it is difficult to accept that each time he organised to meet [Ms A]’s family and he was assaulted he nonetheless readily escaped. And then that he travelled in and out of [Town 1], as well as to and from [Town 2] many times over several years to stay in [Province 1], despite her family and tribe residing in [Province 1] where [Town 2] was the main port.

11. Also as discussed at the hearing, country information shows that the RAMSI forces arrived in the Solomon Islands in July 2003 in order to provide security and law and order- particularly in [Town 1]. I disbelieve the applicant’s claim that when attacked by [men] in [Town 1] in [2011], the police failed to act at all despite being summoned.

    Conclusion- credibility

12. In sum, taking all of my foregoing concerns together, I find unconvincing and do not accept his narrative about the ongoing enmity of [Ms A]’s family over an unpaid bride price and compensation. I have considered but give no weight to the letter dated [in] February 2014 ostensibly by a chief from [a particular] village that talks about the claimed meeting in [2009], and I give no weight to the declaration dated [in] February 2018 from [Ms B] in [Town 1] that stated [Ms A] now deceased had been the applicant’s de facto wife and they had two sons. I find the applicant is not a credible witness and that he has concocted his claims for the purposes of seeking Australia’s protection.

13. I find that the applicant is in fact married to [Ms C] and that this relationship is ongoing as he was living with her and their three adult children in [Village 1] in [Province 1] before he travelled to Australia. I have considered but disbelieve his explanation that this marriage ended in about 1991 and that he has never lived in [Village 1].

14. Having considered the claims and evidence, I do not accept his claims that:

    ·He fears people from another family and tribe in the Solomon Islands because in 1994 he did not pay the bride price for his late de facto partner [Ms A] or compensation when she [died] in [1999].

    ·In [1999] family of [Ms A] stole his goods, [vandalised] his home in [Province 2] and abducted and held his two sons. He escaped and fled.

    ·In [2007] family of [Ms A] found him in [Province 3] but he managed to escape and fled to [Town 1].

    ·In [2009] in [Town 1] he organised a meeting with family of [Ms A] but during the meeting was hit. He managed to escape and fled to [Town 2], [Province 1].

    ·In [2011] in [Town 1] he was attacked by family of [Ms A]. He managed to escape and fled to [Town 2], [Province 1].

    Refugee criterion

15. Having considered the claims and evidence I find that the applicant is a Solomon Islands national. I conclude the applicant will be able to travel to Solomon Islands on his valid Solomon Islands passport. I do not accept either that the applicant departed Solomon Islands so as to escape feared harm (such as threats, intimidation, physical or other harm) from [Ms A]’s family or tribe there, or that he now fears to return to Solomon Islands for the reasons he has given, or for any reason.

16. In light of the above assessment, the Tribunal finds that in Solomon Islands the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims or for any reason. The Tribunal finds that in Solomon Islands the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the Convention reasons either when looked at individually or cumulatively. The Tribunal finds the applicant does not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if he returns to Solomon Islands.

    Complementary protection

17. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Solomon Islands, there is a real risk that he will suffer significant harm. For the reasons set out above, I have not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Solomon Islands, now or in the foreseeable future. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. It follows that I do not accept there to be a real risk that the applicant will suffer significant harm from anyone for the same reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Solomon Islands.

    Overall Conclusion

18. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

19. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. 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

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

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

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

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).

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.

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.

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

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.

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.

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.

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.

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.

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

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’).

‘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.

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.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.