1516375 (Refugee)

1516375 (Refugee) [2017] AATA 1496 (31 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516375
COUNTRY OF REFERENCE:                  Solomon Islands
MEMBER:Christine Cody
DATE:31 July 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 31 July 2017 at 4:11pm

CATCHWORDS
Refugee – Protection visa – Solomon Islands – Social group – De-facto relationship – Fear of families – Compensation demands - Credibility – Inconsistent, vague and changing evidence
LEGISLATION
Migration Act 1958, ss. 5(1), 36(2)(a), (aa), (b), or (c), 36(2A), 36(2B), 65, 91R, 91R(1), 91R(1)(a) – 91R(1)(c), 91R(2), 91S, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169‑70
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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Solomon Islands, applied for the visas [in] November 2013. The applicants claim to be in a de facto relationship, and that this has led to their harm, and a lack of state protection. The first named applicant (hereafter referred to as “A”) was the primary applicant; the second named applicant (hereafter referred to as “B”) applied as a member of his family unit; however it became clear throughout the process that B was also claiming to fear harm upon return. The applicants’ provided to the Department Protection Visa application forms, Form 80’s (Personal Particulars Forms), identity and supporting documents.
They attended an interview with the delegate of the Minister for Immigration [in] May 2015. The delegate also accessed documents which were on the Departmental file; further there was a “dob-in” letter on the file. The delegate refused to grant the visas [in] November 2015.
The applicants lodged an application for review of that decision. The Tribunal advised the applicants that, on the information available to it, it was unable to make a favourable decision, and it invited them to a hearing to present evidence and arguments. The applicants were represented in relation to the review by their registered migration agent. The agent provided submissions in response to the delegate’s decision record, and country information relating to corruption and the authorities.
The applicants appeared before the Tribunal by video link on 1 June 2017 to give evidence and present arguments. Their agent appeared by telephone link. The Tribunal explained that it was not bound to follow any of the findings of the delegate, and that it would make its own findings on all relevant matters.
Both applicants specified in their protection visa application forms that they speak English and do not require an interpreter. They did not use an interpreter for their interviews with the delegate. They were given the opportunity to request an interpreter in their application for review forms and in the hearing invitation letter. The applicants did not seek an interpreter for the hearing, and they confirmed that neither of them sought the services of an interpreter. The Tribunal explained at the commencement of the hearing, and at other times, that it was very important that they tell the Tribunal immediately if they did not understand something that was being said. The hearing was conducted in English; on occasion the applicants said they did not understand something that was said; the Tribunal would repeat what was said to ensure understanding. The applicants told the Tribunal that they understood. The Tribunal was satisfied throughout the hearing that the applicants were able to understand the proceedings and give evidence and present arguments. At the end of her evidence the Tribunal asked B if there was anything she had not understood, and she said that because the member has repeated things she is satisfied that she understands. At the end of the hearing, the agent said that because there had been references during the hearing to not understanding, she wanted to take further instructions from the applicants about this. The Tribunal noted that there had been times when the applicants had said they did not understand but that after checking, it appeared that they had understood. The Tribunal asked whether there was anything the agent thought the applicants did not understand. The Tribunal also notes that in the post-hearing submissions there was no suggestion of any general or specific instance of misunderstandings.
The Tribunal put its concerns to the applicants as well as relevant information pursuant to s.424AA of the Act. The agent sought further time, as well as to produce a document referred to by the applicants, and the Tribunal agreed to postpone making its decision. The agent forwarded a letter [in] June 2017 attaching a death certificate for B’s father.
SUMMARY OF CLAIMS AND EVIDENCE
A summary of the relevant claims and evidence sourced from the written documents and oral evidence is as follows. Relevant evidence and information not referred to in this section is referred to later in the decision.
·     A is a [age] married man from the Solomon Islands. He was born in Malaita Province. He was educated including in [profession]. He [worked] at [certain] schools, then he attended [tertiary] training in Australia in [years].
·     A met B when she was [age] and wanted to marry her but this was not acceptable to family members. Instead A married [name] (“his wife”), and they had [number] children. He worked and later attended a [certain] course in Australia in [year]. He returned to Solomon Islands and continued working as a [occupation] at the school, however as a result of the conflict at that time he and his family returned back to their home province (Malaita Province). Some of his friends went to Australia; they remain in Australia to date.
·     A kept travelling to Australia for business purposes. There were ethnic crises in the Solomon Islands and one of his friends suggested that he should apply for a protection visa in Australia as he is a Malaita man; who are targets in such crises. He did not agree and returned to Solomon Islands.
·     A contested elections in [years] but he did not win.
·     After April 2010 (lost election) he met B again and they renewed their relationship and started an affair. They tried to keep it a secret but rumours about the relationship spread quickly and reached B’s husband and in-laws, who not long after, assembled in front of A’s house and demanded compensation from A’s family. As A was not present, they stole a [property] and torched an unoccupied house and took away some of his building materials. They said they would come to collect compensation again in cash as soon as he arrived back from the city. A’s family’s lives were terrorised by those people that evening.
·     Soon, people from A’s wife’s side heard about the incident and straightaway came and took his wife and children away from him. They demanded A pay compensation of [amount] Solomon dollars before he could have access to his family again.
·     Every day B’s husband threatened to kill her. When she could not withstand the verbal and physical abuse any more from her husband, she moved out and started living with A (July 2011). At that time B’s relatives and B’s husband’s relatives merged and demanded a total of [amount] Solomon dollars to be paid by [date] December 2011.
·     A could not access the police because of corruption, bias and impartiality.
·     Although A was operating a [Company 1] company, A didn’t have many profits, otherwise he would have paid at least part of the compensation demands.
·     With the [date] December 2011 compensation deadline approaching, A’s life was in great danger. He knew they really meant it when they gave him the deadline and some of these people still had firearms from the ethnic crises in the past. He believed they would use them on him if he failed to meet their demands in time. He realised there was nowhere he could live in the Solomon Islands. He had limited money and applied for a [temporary] visa to Australia. He arrived [in] December 2011 and stayed at his friends’ house. His friends had a marital crisis.
·     A tried to think about how he could solve his problems and he approached a migration agent. A said he needed help to lodge a protection visa but the agent said first of all he should get a work visa to help him work legally.
·     The agent however disappeared with his money. A was scared to approach the police or immigration or another agent; he finally located his current agent.
·     While A was in Australia he maintained contact with B who kept on telling him that she was being verbally abused so many times and she found it hard to move around because of fear of verbal or physical abuse. He asked B to come to Australia and she did.
·     His application for protection is temporary, and if he can pay the compensation, he will return to the Solomon Islands.
·     In Australia A did not work initially because he did not have work rights, He now works full-time as a [occupation].
·     He fears harm from B’s husband, his relatives, and his wife’s relatives.
·     At the hearing B said that she fears harm from three sets of people: Her husband, who threatened and tried to kill her on numerous occasions, her husband’s relatives, and A’s wife’s family.
·     Relevant evidence and information is set out below.
FINDINGS AND REASONS
Country of reference
The Tribunal is prepared to accept that both applicants are nationals of the Solomon Islands. It finds that the appropriate country of reference for the assessment of their refugee claims, and the receiving country for the purposes of their complementary protection claims, is Solomon Islands.
Credibility of the applicants
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 the 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.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
Having considered the relevant evidence, the Tribunal has serious concerns about the applicants’ credibility and the veracity of their claims. The Tribunal does not accept that the applicants are witnesses of truth concerning their background, relationship, and other matters central to, and related to, claims of future feared persecution, harm and concerns.
The Tribunal has only relied upon its concerns about each applicant in forming its view about the credibility of each applicant. The Tribunal has made its adverse credibility findings for the reasons set out below.
Firstly, the Tribunal was concerned that the applicants gave inconsistent and changing evidence at different times relevant to their relationships with their spouses and families, and their own de facto relationship, and their background. These concerns were put to the applicants, as issues, or pursuant to section 424AA of the Act when required. For example:
Inconsistent evidence about where B lived, with whom, and her work
When the Tribunal asked the applicants about B’s circumstances after A had left the country in December 2011 (and until she came to Australia in June 2013), given the tense situation, death threats and heightened emotions concerning their relationship:
·     Both A and B told the Tribunal that B had been living in [city] with her siblings, and that she had been working as a [Occupation 1] at the school in the city.
·     B told the Tribunal that her husband lived in [name] Village, Malaita Province, and she had not seen him that whole time except when he came to [city] and had threatened and tried to kill her.
·     However, when B had completed her application for a [temporary] visa form (with supporting letter and family composition form) in April 2013, she claimed that she was married and that she was living in [name] Village with her husband. Further, she claimed that for the past five years she has been working as a [Occupation 2] in her [business] in [name] Village.
When the Tribunal raised this at hearing, B said that she was a [Occupation 1] but she also had a [business] back in [name] Village and so she put in her application form that she was still living with her husband. Further, she referred to her husband as her husband because she was not divorced. A agreed with what B said.
The Tribunal has considered the responses, however it does not find them persuasive. In particular, B’s response indicates that she is prepared to tell untruths in making visa applications and in order to obtain a visa outcome. The [temporary] visa application form indicates that she was living with her husband and that she operating her [business] in the village. She did not suggest to the Tribunal that she could not have claimed in her [temporary] visa form that she was working as a [Occupation 1] in [city] while her husband remained in the village; the Tribunal considers that her response undermines her credibility and the claims made by both that she was residing in [city] away from her husband and working as a [Occupation 1].
Inconsistent evidence about the relationship between A and his spouse, and his work
At the hearing it was asserted that the applicants were in a relationship together, and no longer in relationships with their spouses:
· The Tribunal asked A about the breakdown of his relationship with his wife. He said that they had discussed getting a divorce in about September 2011. He had told her that they need to get a divorce and she agreed [when asked why they did not then get a divorce, he said because of the cost of a divorce (500 Solomon Islands Dollars; about 100AUD)].
· Both applicants asserted that from July 2011 they were living with each other, and they were no longer living with their spouses
This however, was inconsistent with A’s application for a [temporary] visa signed [in] November 2011 stated that he was married, and that he was seeking a multiple entry [temporary] visa so that he could first visit for business purposes ([in] November-[in] December 2011) and then return for a second trip with his wife ([in] December 2011) so that they could go Christmas shopping. The Tribunal considered that it was highly unlikely, in the circumstances claimed by the applicants, that A would include in his [temporary] visa form a desire to take his wife Christmas shopping in Australia; especially given that he had already provided a reason to come to Australia.
Further, the Tribunal noted that in giving his evidence at hearing was that he and his wife had agreed to divorce in September 2011, he was living with his de facto, and his relationship with his de facto was going strong, and the plan that she was going to come across to Australia with him; this was inconsistent with his other evidence to the Tribunal, when explaining the assertions in his [temporary] visa application: that he claimed to the Australian authorities (November 2011) he wanted to come to Australia for business, and another reason was his wife: he was having “the situation” with his family; he still had “the heart” to do something with his family; he still was looking for other ways to bring back his family together and so he thought he would take his wife to Australia to holiday and shop.
The Tribunal put its concerns, including that on one version, it appeared that A may have made a false claim to the Australian authorities in order to obtain [temporary] visa; he disagreed and said that in his heart he wanted them to get back together again, he mentioned her in the proposed trip, but getting a divorce is imminent. The Tribunal does not find A’s explanations persuasive. As noted above, he had already provided the Australian authorities with a reason to come to Australia (business); it does not appear (nor was it suggested) that a second reason was needed in order to obtain a [temporary] visa. Later in the hearing, when the Tribunal put this information to A more formally, he said that he and his wife had wanted a divorce, there was tension in the relationship and he thought that she could go shopping with him but that was not the case. There was a deadline to pay compensation, his wife was intercepted by her [siblings], and he escaped his life. B said that she agreed with what he said.
The Tribunal does not his explanations to be persuasive. The Tribunal considers that the above suggests that his claim before leaving the Solomon Islands that he would like to take his wife Christmas shopping in Australia indicates that he and his wife remained in a relationship, and that the applicants were not in a de facto/secret relationship while in the Solomon Islands. This undermines the applicants’ claims and credibility.
Further, the Tribunal was concerned with A’s assertion that in his protection visa claims that in 2010 he had worked at the [Workplace 1], which is where he met B again, and they started seeing each other. He also told the Tribunal that he worked for [Workplace 1] six months until the end of 2010. This concern arose because when providing his work history in his protection visa application form and his Form 80, he made no mention of working at all in 2010, let alone at the [Workplace 1]. According to his forms:
· From January 1998 until December 2010 he was unemployed; from June 2011 he was a business owner of a private [Company 1] company (Form 80);
· From December 1977 until June 2011, he was unemployed. From June 2011 to December 2011 he was a [occupation] (protection visa application form).
The Tribunal put its concerns to A, and he said that he had referred to the [Workplace 1] in his statement (which provided his claims). The Tribunal put to A that it was difficult to understand why, in both forms where he has provided his work history, he makes no mention of working at [Workplace 1], given his claim in his statement of its significance. In response he said that this was just casual work, not permanent. The Tribunal does not find this response persuasive. It notes that in his forms he had mentioned work with his [Company 1], although he told the Tribunal that this was only casual jobs, specifically he said this was not on a full-time basis. He has not explained why he has included casual, not full-time work for his [Company 1] in his forms, but not his six months’ work at [Workplace 1], the place where he met B again. Further, the Tribunal noted that in his forms, he specifically stated that in 2010 he was unemployed. The Tribunal is not prepared to accept his explanations and considers that he has given inconsistent evidence about his background and work, relevant to the claimed commencement of his de facto relationship with B, which undermines his claims and credibility. The Tribunal’s concerns about A’s claimed work at [Workplace 1] are heightened because he told the Tribunal that he worked there as a [occupation], whereas in his statement he claimed to work there as a [different occupation].
Facebook evidence inconsistent with the applicants’ evidence

Both applicants told the Tribunal, clearly, that there they were not related to each other at all, by blood or marriage or in any way; further, was no contact or relationship whatsoever between A’s children and B.
This however was inconsistent with the Facebook evidence obtained by the Tribunal. The Tribunal noted that according to A’s [family member] [Ms A]’s Facebook page, there was a comment on an updated Facebook profile picture [in] February 2017 by B, stating: “[comment]” and in response [Ms A] had written “[comment]”. The Tribunal put to the applicants that [Ms A] was referring to B as her [relative], they are Facebook friends, and this indicates that their evidence to the Tribunal about the lack of any contact whatsoever and the lack of any relationship was not true, and further it indicates a specific relationship between A’s [family member] and B (of [relationship]). The Tribunal was concerned that this indicated that the applicants had not been truthful about their relationship or their claims.
In response, A said Facebook is a public place and he mentioned that his children are coping and putting their hearts there. His [children] are embarrassed to refer to B as his de facto, so they call her their [relative]. They do not call her their mother because it would be a disgrace to their mother. They didn’t want to embarrass him or be disrespectful to him in a public place. Concerning his earlier evidence that they had no contact, they meant no contact apart from Facebook contact, and Facebook is different. B said that she agrees with his response.
The Tribunal has considered A’s response which is different to his initial evidence to the Tribunal. He confirmed to the Tribunal (that although they are managing to cope they have not developed a relationship with her and they would not communicate with her). The Tribunal does not find the explanations to be persuasive. It considers that the Facebook contact and the reference to A’s [family member] saying thanks to her [relative] (B) indicates a relationship and a contact inconsistent with both applicants’ initial assertions to the Tribunal that there is no contact at all (and no relationship at all) between A’s children and B. The Tribunal considers that the above undermines their credibility and their claims.
A’s lack of knowledge and vague and changing evidence
Secondly, the Tribunal had further concerns about A’s lack of knowledge about many matters affecting or relevant to B. He told the Tribunal that they had a strong relationship which continued when he travelled to Australia; and that they spoke by phone every week. However; he told the Tribunal when asked:
·     He did not know whether she was upset that her father died (he said “probably, I don’t know”);
·     He was vague and confused about what her husband did for a living. Initially he said he thought he was a [Occupation 2]; then he said he did not know about her husband; then he said he did not know, it could be him or his [sibling]. When the Tribunal put to him it was difficult to accept that this is the man who is after him and is the husband of his de facto partner, yet he does not know anything about him. In response he said he may have been a [Occupation 2] or a [Occupation 3]; then he said maybe he was a [Occupation 3] and his [sibling] was a [Occupation 2].
·     When the Tribunal asked whether B worked after he left, his response was vague. He said she was a [Occupation 1]… it was her career but he doesn’t know if she was still doing that because …he thinks she was a [Occupation 1] in [city]. He then said that she was [working] at a [certain] school and sometimes she would [work] in [location] and she moved to [city]. The Tribunal asked him to clarify his response; he then said that while he was away in Australia, she only worked in [city].
·     The Tribunal was concerned that A, who said in his statement that there is no point approaching the police because of corruption, then gave evasive evidence as to whether or not B had approached the police when she was in danger because of their relationship. Initially he said he does not know whether she approached the police, then he said “maybe no”, then he said he can’t recall, then he said that maybe she approached the police if she saw them on the street and made mention of the circumstances, but not to lodge any complaints. The Tribunal put to A that for six months he and B were living in hiding, in fear; the Tribunal considers it highly unlikely that A would not know in such circumstances if B had talked to the police. The Tribunal considers that this undermines A’s credibility.
The Tribunal considers that A’s vague and/or changing evidence undermines his claim that he was in a relationship with B.
Inconsistent and changing evidence about threats and circumstances
Thirdly, the Tribunal is concerned with A’s inconsistent and non-credible evidence about when the threats were made.
At the hearing, A said that B’s husband and B’s relatives were first aware of the relationship, and first threatened that A had to pay compensation, in November/December 2010. He then said that in July/August 2011, his wife’s relatives were aware of the relationship and demanded compensation. This however was inconsistent with the contents of a supporting letter, provided by the applicants, from the [government] Office. This letter stated that it was in November 2011 that the affair was discovered, and thereafter compensation was demanded by these three sets of people. The Tribunal noted that this was very different to what A had said. In response, A said maybe they were referring to the deadline [in] December 2011. The Tribunal noted that this was not what the letter said. In response he said it is too much for him to handle. The Tribunal has considered his response; however it does not find it persuasive. The Tribunal considers that the inconsistent evidence between the supporting letter and A undermines his claims about the threats and the letter.
The Tribunal’s concerns in this regard were heightened by the statement submitted to the Department, where A claimed that as soon as he met B again (mid-2010), they renewed their relationship and started seeing each other again, although they tried to keep it a secret, rumours about the relationship spread “quickly” and reached B’s husband and family who demanded compensation. His wife’s family heard about the incident and “straightaway” came and took away the wife and [number] children and demanded compensation. This statement indicated that the threats and demands for compensation occurred much earlier than November 2011 (as claimed in the supporting letter). The Tribunal considers that this also undermines the letter.
Further, the Tribunal put to A its concern that despite the knowledge of the affair, and the threats and demands for compensation occurring in November/December 2010, from B’s husband and A’s relatives, they took no follow-up action, and allowed A a period of more than one year to pay compensation. The Tribunal put to A that, given he had shamed the honour of B’s husband, it was difficult to understand why they would allow him such a long period of time to pay compensation (especially as he claims to have had no prospect of paying it), while in the meantime he was still living with B. In response A said that they kept telling him to pay money, and he closed his business because of threats. The Tribunal has considered this response however it does not it persuasive, especially given his claims that some of these people still had firearms from the ethnic crises in the past and he believed they would use them. The Tribunal considers that this delay in causing A harm (including pursuing the money with purpose), while the relationship (and then de facto relationship) was ongoing, is highly unlikely.
Further, the Tribunal was concerned about B’s changing evidence about threats and her circumstances. She told the Tribunal that she was at risk of harm from three sets of people: her husband; her husband’s relatives, and A’s wife’s relatives, all because she had started a relationship with A (and left her husband). She said that after A left, she remained in the Solomon Islands; staying with her siblings at their house in [city]. She said that she remained there the whole time, and she was [working] at a school there. The Tribunal noted that she was there for 18 months, without A’s protection. She claimed that her husband would come from the Province and he would come and threaten to kill her in [city]. The Tribunal noted that he would come to her and threatened to kill her, but he did not harm her, which indicates that he did not seek to harm her. She then said that she was safe with her [siblings]. The Tribunal said that if she was safe there, she did not have to leave to come to Australia. She then changed her evidence and said that she was not safe with her [siblings]; she was in hiding there. The Tribunal put to her that it was difficult to accept that she was in hiding, given that her husband knew where she was, she was living in the same home, going to the same place of work, for 18 months, without incident. When the Tribunal however put its concerns, she was unable to provide a response, instead she just repeated her evidence: he sometimes comes from the province and he would threaten her and say that A needed to pay compensation or else he would kill her. The Tribunal considers that her evidence undermines her credibility and claims.
Further, the Tribunal noted that not only was her husband after her to seek to cause her harm (when A had left and not paid compensation); there were the others who also had 18 months opportunity to harm her but they did not do so. In response, she said they were living in the province and they did not know where she was. The Tribunal suggested that if her husband knew where she was, he could have told his relatives where she was as well. She said she does not know why, despite death threats, his family did not kill her. She then said that her husband said that his relatives said that his family does not want to see her unless she pays compensation but if it is not paid they will kill her. The Tribunal asked her what the deadline was for the payment of compensation and she said December 2011. The Tribunal put to her that the deadline for paying compensation had thus passed, yet she continued to live for 18 months in [city], during which time they wanted to kill her, but they did nothing. She then changed her evidence to say that the main focus was to kill A. The Tribunal considers that her changing evidence undermines her credibility and her claim that anyone sought to harm her or sought compensation.
Fourthly, the Tribunal was concerned that A gave inconsistent and changing evidence about the claimed compensation and his willingness to return to the Solomon Islands. In his statement submitted to the Department, he stated that in applying for a protection visa, his intention is only to remain in Australia on a temporary basis; he requests work rights so that he can work legally in Australia and then he can pay back the compensation demands and he vows to go back to his country once he meets those demands. However, when asked if he sent any money back to the Solomon Islands, he gave changing evidence to the Tribunal; initially saying that he sent back about [amount]AUD. He then changed his evidence and said he sent back about [amount]AUD for his mother and children. He then said that he had sent back an amount between [amounts] AUD for general living expenses and for fees. He said he had not sent any other money back to the Solomon Islands.
The Tribunal noted that his evidence was inconsistent with what he had claimed in his statement, namely that he would use his work rights to earn money and pay back the compensation demands, and that he was only staying temporarily in Australia. In response he said it is to do with the culture of Solomon Islands, he will never be able to satisfy demands, it is a well-known phenomenon that people will continue to ask him for money and he will never be safe. The Tribunal put to him that if that was the case, it did not understand why he would have said in his statement that he intended to return. In response he said he wish he had not said that his statement. The Tribunal does not find this explanation to be persuasive. The Tribunal considers that he has changed his evidence about money he has sent back, the reason why he would send money back, and his willingness to return to the Solomon Islands, and that this undermines his claims and his credibility.
Fifthly, the Tribunal was concerned about A’s delay in claiming protection in Australia. He arrived in Australia [in] December 2011, but he did not claim protection until almost two years later [in] November 2013[1]. During this time he claimed that he saw a migration agent while he was still lawfully present in January 2012, he wanted to apply for refugee status and he said that he needed to pay his agent $[amount], which he did. He then claimed that by March/April 2012 the agent ran off with the money. A was aware that he was unlawfully present, his application had not been lodged, and that he did not have work rights and he claimed he did not work. The Tribunal put to him that it did not understand why he did not complain about this agent, and he said because he was illegally present. The Tribunal put to him that he said he was illegally present from March/April 2012 until November 2013, during which time he claimed he was not working. It noted that he had significant experience in lodging visa applications and dealing with the Australian government (he confirmed that he had lodged [temporary] visa applications starting from 1988); he claimed to have contacts in Australia, and the whole time he was doing nothing while the woman he loved was alone in the Solomon Islands and facing death. The Tribunal said that it did not understand why he did not take steps to take advice on his situation from a migration agent, complain about his former migration agent who he claims stole his money, and lodge a protection visa application. He gave vague responses that he searched on the internet and found his current agent; he knew it was difficult; and some agents cheat (similar to the post interview submissions). The Tribunal repeated its concern that he did nothing for over 18 months; in response he said he was in “unforeseen circumstances”. The Tribunal has considered the explanations as to why A delayed in lodging his protection visa application once he was safe in Australia (and while his de facto was not safe in the Solomon Islands); the Tribunal does not find these explanations to be persuasive. It considers his delay in lodging a protection visa application undermines his credibility, claims and claimed fears.
[1] See agent’s pre-hearing submissions.
The Tribunal has taken into account the agent’s pre-hearing submission that there are a lot of dishonest and unreliable migration agents in practice, and there are lengthy processing times. The Tribunal is not prepared to accept this explanation for this applicant’s delays in taking steps to lodge a protection visa application sooner. The Tribunal considers that this delay undermines the claims about B being threatened and the claims generally.
Credibility concerns on the basis of the above evidence
On the basis of the above difficulties with each applicants’ evidence (considered cumulatively in respect to each applicant), the Tribunal considers that the applicants are not credible or reliable witnesses in relation to matters relating to themselves or each other.
Other matters
Nervousness
A said at the end of the hearing that while he is waiting for a resolution of his case he experiences stress and this causes him a lot of health issues ([medical conditions]); it is his only hope to be protected in Australia.
While the Tribunal accepts that the applicants may have been nervous and stressed, the Tribunal is not satisfied that this can explain the difficulties with their evidence.
Corroborative evidence
While the Tribunal note that the applicants gave some consistent evidence, the Tribunal is not satisfied that this overcomes the difficulties with their evidence.
Dob-in-letters
The Tribunal noted that the Department file contained a s.438 certificate relating to dob-in information on the file.
The Tribunal notes that there was a s.438(1) certificate placed on some pages[2] of the Departmental file by the Department. It is appropriate to address the validity of the s 438(1) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in a document or information would be contrary to the public interest must be capable of forming “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence”. The only reason stated in the certificate is that the folios “… contain information relating to an internal working document”. That is neither a necessary nor a sufficient basis for public interest immunity. At best, it is only a reason that could form part of the basis for a claim, not the basis, and does not communicate to the Tribunal any reason which meets the description in s.438(1). Since the certificate is not valid it does not trigger the operation of ss 438(3)(a) and 438(3)(b) in relation to how the documents or information can be dealt with and the Tribunal has proceeded to treat the document in the usual way as if there was no certificate.
[2] Folio 189-193.
Some of the pages are administrative documents of the Department, containing the names of departmental officers, and are not relevant.
Concerning the balance of the pages, the Tribunal notes that they contain “dob-in” information. While the Tribunal agrees that dob-in information is sensitive, the certificate as worded is not valid. In any event, as the Tribunal explained, the information provided in the dob-in letter was potentially adverse, and it was put to the applicants pursuant to s.424AA of the Act. This information was of interest and relevant because it, too, indicated that the relationships claimed by the applicants were false. However, the dob-in letter indicated that A and B were claiming in their protection visa applications to be [related] (which was not their claim), but it also indicated that they had submitted fraudulent statements in support of their protection visa application forms. In response, A said that the dob-in is incorrect, it is a false allegation; they want the applicants to lose their applications, and go back to the Solomon Islands and be killed. B agreed with the response of A.
The Tribunal notes that while the dob-in letter contains false information about their claims, it also contains an assertion that they have relied upon fraudulent statements. As set out the rest of this decision, the Tribunal has significant concerns with the applicants’ evidence and claims. In particular, it already has concerns about the nature of their relationship/connection. The Tribunal has also come to the conclusion that the applicants are relying upon false claims. In the circumstances however, the Tribunal considers that it is not necessary to rely upon the dob-in letter (with its internal error about their claimed relationship) and thus it does not give it any weight.
The letter from the [government department]
The Tribunal has considered this above, and having regard to the inconsistencies between A’s evidence and that letter, as well as the country information[3] about the availability of false documents, the Tribunal is not prepared to put any weight on that letter.
B’s father’s death certificate
[3] ANZ document on types of fraud in Solomon Islands - type="1">
The Tribunal had concerns, raised at the hearing, about B’s changing evidence as to when her father died. The Tribunal was provided with the death certificate after the hearing and is prepared to accept that he died in November 2012, and that his illness is the reason why B did not travel when she received her first visa to come to Australia [in] September 2012.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicants’ credibility as discussed above lead the Tribunal to conclude that they are not witnesses of truth, and that they have fabricated claims in order to allow them to stay in Australia, and that they are prepared to make any claim in order to remain in Australia.
Findings on the applicants’ claims
De facto relationship, past harm and feared future harm
On the basis of the adverse credibility findings, the Tribunal finds that the applicants have not been honest about their background or their claims. It is not satisfied that they are, or have ever been, in a de facto relationship. It does not accept any of the claimed past harm which flows from their claimed relationship: threats, bribery, demands of compensation, death threats, needing to escape the Solomon Islands; nor does it accept that there is any reason for the community in the Solomon Islands to believe that A and B have been or are having an affair. The Tribunal considers that A and B will return to their respective families and it does not accept that they face a real chance or a real risk of any harm from their families or from anyone else.
General conditions in Solomon Islands including corruption/ politics
The applicants made no written claim, nor did they assert to the Tribunal, that they faced any harm other than specifically relating to the three lots of people who are after them. The agent produced country information before the hearing which referred to corruption (having made submissions about corruption). The applicants did not suggest that they faced serious or significant harm on the basis of corruption other than in relation to their claims (which claims the Tribunal has not accepted). While the Tribunal is prepared to accept that there is corruption in the Solomon Islands, it is not satisfied on the evidence before it that either or both applicants face a real chance of serious harm or real risk of significant harm for reasons of corruption.
Further, as put to the applicants at hearing, the Tribunal has concerns about their claims and background. While it is prepared to accept that A came to Australia many years ago to study religion, he did not claim to fear harm on this basis. Similarly, while he claimed in the past to have political involvement, he did not claim in his written materials or at hearing that he faced any real chance or real risk of harm in the reasonably foreseeable future on this basis. The Tribunal notes the suggestion in A’s statement that Malaita men had been targeted in the past, and that there had been past ethnic crises, however A did not claim in his written materials or at hearing that he faced any real chance or real risk of harm in the reasonably foreseeable future for these reasons. The Tribunal notes that A asserted that his health was affected by having to wait for a decision on his application; while the Tribunal accepts this this can be a stressful period, the Tribunal does not consider that there is sufficient evidence before it (and the applicant provided no evidence of his health other than his assertions) to indicate that he faces a real chance of serious harm or a real risk of significant harm on the basis of his health. Further, the Tribunal notes A’s previously claimed willingness to return to the Solomon Islands provided he could work in Australia in order to earn enough money to return the compensation demands; the Tribunal considers that if he was of the view that he faced harm for any other reason, he would not have indicated that he was willing to return and that his stay in Australia would be temporary.
The Tribunal has significant concerns with the applicants’ claimed backgrounds. The Tribunal finds that the applicants both have their own families, they were both working, and they are resourceful people who are prepared to make false claims to remain in Australia. The Tribunal is not satisfied that the applicants face a real chance of serious harm or a real risk of significant harm, for any reason, in the reasonably foreseeable future (or thereafter).
The Tribunal has considered the applicants’ claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicants’ claims are credible, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that they do not have a well-founded fear of persecution for any of the reasons put forward by them.
In summary, the Tribunal does not accept that the applicants face a well-founded fear of persecution in the Solomon Islands. Having considered the applicants’ claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection claims
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
As discussed above the Tribunal is not satisfied that the applicants have been truthful about their situations in Solomon Islands, nor in Australia, other than what has been accepted above. For the reasons set out above, the Tribunal does not accept that the applicants face any imputation of being in a de facto relationship, and thus it does not accept that they face a real risk of significant harm in the form of: discrimination, ostracism, or harm from anyone in any form for the claimed reasons. The Tribunal is not satisfied that any of the consequences of a return to the Solomon Islands for the applicants would constitute them facing a real risk of significant harm. Further, the Tribunal does not accept on the evidence before it that A has any health condition which would lead to him suffering a real risk of significant harm in the Solomon Islands.
Having considered the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants a Protection visa.
Christine Cody
Member
ANNEXURE 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.
Refugee criterion
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 criterion
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.
Section 499 Ministerial Direction
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.

[2017] AATA 1496

31 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction