1609587 (Refugee)

1609587 (Refugee) [2019] AATA 5824 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1609587
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Fiona Meagher
DATE:21 May 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 May 2019 at 1:06pm

CATCHWORDS
REFUGEE – protection visa – Solomon Islands – victim of domestic and sexual violence – customary law – bride price – embellished or exaggerated claims – authenticity of documents – inconsistent evidence – delay in seeking protection – absence of contemporaneous primary reports – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 423A, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Guo v Minister for Immigration and Ethnic Affairs (1996) 40 ALD 445
Kavun v MIMA [2000] FCA 370
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Subramaniam v MIMA (1998) VG310 of 1997
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Zhang v RRT & Anor [1997] FCA 423

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 on 16 June 2016 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Solomon Islands, applied for the visa on
29 October 2015. The delegate refused to grant the visa on 16 June 2016, on the basis that the delegate did not consider the applicant to be a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The applicant did not provide a copy of the delegate’s decision with the application for review.
The applicant appeared before the Tribunal on 27 September 2017 and
15 November 2017 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Solomon Islands Pidgin and English languages. The applicant was represented by her migration agent who attended the hearing.

CRITERIA FOR A PROTECTION VISA

The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Credibility

The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo v Minister for Immigration and Ethnic Affairs (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

10.The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 204):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

11.The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at 293:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

12.However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.” Nevertheless, as Burchett J counselled, in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5], it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

13.The Full Court of the Federal Court in Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.” On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong (Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed)). In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510 at [191] as follows:
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

Mandatory considerations

14.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.

CONSIDERATION OF CLAIMS AND EVIDENCE

15.The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm in the Solomon Islands. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Documents before the Tribunal

16.The applicant provided the Tribunal with the following documents:
·Photocopy of the birth certificate.
·Submission from the applicant’s migration agent dated 12 September 2017.
·Statutory declaration of the applicant dated 12 September 2017.
·Photocopy letter signed by [Dr B] – undated.
·Photocopy letter signed by [Dr B] - dated 9 July 2016.
·Photocopy certificate (untranslated) with respect to medical qualifications of [Dr B] dated 9 July 2014.
·Photocopy letter signed by [Dr B] – dated 4 November 2017.
·Photocopy letter signed by [Mr C] from Royal Solomon Islands Police Force dated 30 September 2015.
·Photocopy letter signed by [Mr C] from Royal Solomon Islands Police Force dated 13 July 2016.
·Photocopy letter signed by [Mr C] from Royal Solomon Islands Police Force dated 1 November 2017.
·Photocopy letter signed by [Mr D] dated 12 July 2016.
·Photocopy letter signed by [Mr E] dated 5 September 2017.

Applicant’s migration history

17.The applicant’s migration history, which was discussed with her at length during the hearing, included that she first came to Australia on a Visitor visa to attend a church meeting in July 2008. On that visit she spent [two weeks]. The applicant next came to Australia in early 2010. She stayed for three months. She stayed with an elderly [couple], who she met on her first visit to Australia in 2008. The applicant came to Australia, for the third time, [in] June 2010. She entered on a Visitor visa which ceased [in] July 2010. The applicant applied for her protection Visa on 29 October 2015.

Country of reference

18.The applicant claims, and the Tribunal is satisfied on the basis of the personal details provided that she is a Solomon Islands national. Solomon Islands is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.
19.The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3).

The applicant’s claims

20.The applicant’s written claims contained in her application for a Protection visa are as follows:
90.Why did you leave that country(s)? Provide specific details.
I left my country Solomon Islands for fear of my life. While I was in a marriage relationship with my former husband [Mr F] I was physical was abused, bashed and stabbed on the right side of my back. Abused and bashed was like when he feel like to do it. I was never allowed to leave the house (See attachment, medical report, police report).
91.What do you think will happen to you if you return to that country(s)?
1.   Fear for my life
2.   Kill me
3.   Witchcraft
92.Did you experience harm in that country(s)? Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)
Domestic violence. (See attachment, medical report, police report).
93.Did you seek help within the country(s) after the harm? (Give reasons for why you did not try to seek help)
I was admitted to hospital. (See attachment, medical report, police report).
94.Did you move, or try to move, to another part of that country(s) to seek safety? (Give reasons for why you did not try to move to another part of the country(s))
I left my country Solomon Islands because fear of my life.
95.Do you think you will be harmed or mistreated if you return to that country(s)? Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)
1.   Fear of my life
2.   Witchcraft
96.Do you think the authorities of that country(s) can and will protect you if you go back? (Give details about why you think the authorities could not, or would not, protect you)
Because of corruption
97.Do you think you would be able to relocate within that country(s)? (Give details about why you are unable to relocate)
The former husband and extended families will know of my arrival if I do go back to the Solomon Islands and they will kill me. So I fear for my life.

Departmental interview

21.The applicant was interviewed with respect to her Protection visa application on
30 May 2016. The interview are summarised in the delegate’s decision, a copy of which was not provided to the Tribunal of the application for review. Accordingly, some of the statements made by the applicant in that interview were put to her during the course of the hearing, pursuant to s.424AA of the Act.

Statutory declaration of the applicant made on 12 September 2017

22.As referred to above, the applicant placed before the Tribunal a statutory declaration made on 12 September 2017. The statutory declaration stated as follows:
1.I was married to [Mr F] according to Solomon Islands customary law [in] December 2008.
2.My father and the father of [Mr F] had arranged the marriage. I had never met [Mr F] prior to our marriage day.
3.On the day of our marriage [Mr F] and his family came to my village. They gave my father a bride price of [shell] money.
4.After the marriage celebrations I went to live in the village of [Mr F] as his wife.
5.After 4 or 5 months [Mr F] became violent and sexually aggressive toward me, particularly, if he was drunk. He would force me to have sex with him even if I said no.
6.Men in the Solomon Islands believe that if they have exchanged a bride price for a woman she becomes their property and can treat them as they wish.
7.My husband only allowed me to leave the house to work in the markets. I sold [produce]. I kept most of the money I earned because [Mr F] would only buy alcohol with it if I gave it to him.
8.[In] June 2009 [Mr F] returned home late at night. He was very drunk and could not get back into the house because it was locked. I did not open the door quickly enough for him and when he did gain entry he became violent and verbally abusive. He stabbed me in the back several times. This was the first time he had used a knife on me.
9.I reported this assault to the police and presented at the [Hospital] for treatment
10.After this incident I returned to my home with [Mr F]. I had no where else to go.
11.He continued to speak abusively to me and would slap me but not hard enough to seriously hurt me. He did threaten that if I did not do as he wanted he would stab me again or even slit my throat. I was very frightened that he would carry out these threats and he would kill me next time.
12.I saved enough money to travel to Australia [in] January 2010 and stayed for 3 months.
13.I returned to the Solomon Islands and my husband in April 2010. Once again, I had nowhere else to go.
14.I immediately began to save money again and applied for another Tourist visa to enter Australia.
15.I finally left the Solomon Islands [in] June 2010 to escape my violent marriage. I have not returned.
16.Although, my family knew how [Mr F] was treating me they offered very little support in my efforts to leave my marriage or to protect me from the violence.

17.Solomon Islanders believe a husband has the right to hit his wife to "educate" her.
18.My father encouraged me to stay in the marriage. Firstly, because he had arranged the marriage and secondly, because he could not afford to repay the bride price. He would lose face amongst the villagers and there would be problems between the two families if I left my marriage.
19.After I had left the final time [Mr F] went to my father's house demanding to know where I was. He said he was waiting for me to return because he had "paid for me."
20.Once I was in Australia I felt safe. I overstayed my Tourist visa but I could not return to the Solomons. I knew [Mr F] would find me wherever I went in the Solomon Islands. Solomon Islands has a very small population he would eventually hear of my return and the violence would begin again.
21.I waited almost 5 years before I lodged a protection visa application. I did not know anyone who could help me with it.
22.I am asking the Australian government to grant me protection so I never need face the violence and possible death from [Mr F] ever again

Submissions made by the applicant’s migration agent

23.As also referred to above the Tribunal had before it a submission made by the applicant’s migration agent dated 12 September 2017. Those submissions included the following:
I submit [Ms A] satisfies the criteria for the grant of a Protection visa as set out paragraphs 36(2)(a) and (aa) of the Migration Act 1958.
[Ms A] fled the Solomon Islands [in] June 2010 after constant physical and sexual abuse by her husband, under customary law, [Mr F].
In her attached Statutory Declaration [Ms A] gives details of her brief marriage to [Mr F].
The marriage was arranged between [Ms A]'s father and the family of [Mr F]. She had not met [Mr F] in person until the day the bride price of [shell] money was paid to her father on [in] December 2008. Once this was handed over she was considered to be the wife of [Mr F] and went to live with him in his village.
The payment of the bride price is significant. In Solomons culture the transfer of a bride price to the woman's father allows men to believe that, as they have paid for their wife, they have ownership and can treat their wives as they wish.
Over the first year of her marriage [Ms A] was subjected to increasingly violent attacks from her husband culminating on the night [in] June 2009 when [Mr F] attacked her and stabbed her with a knife.
Prior to this [Ms A] had accepted the violence handed out to her by her husband but, on this occasion, after presenting to the [Hospital], she reported the assault to the Solomon Islands police. Letters signed by [Dr B] of the [Hospital] and [Mr C], of the Royal Solomon Islands Police Force are attached. (It should be noted that [Dr B] is [Ms A]'s brother, she declared this relationship on her Form 80.)
As acknowledged in the Departmental decision record violence against women, including rape and domestic abuse, remain a serious problem in the Solomon Islands. A significant proportion of both men and women in the Solomons believe violence against women by their partner is justified.
In 2016 the US Department of State stated that, in the Solomon Islands, violence and discrimination against women remained the most significant human rights problem in the country.[1] The same report in reference to bride price payments states that they contributed to the perception of male ownership of women.[2]
[1] "Solomon Islands —2016 Country Report on Human rights Practices", US Department of State, March 03, 2017
[2] As before
An attempt by the Solomon Islands government to address general violence towards women and domestic violence in the home has resulted in The Family Protection Act 2014. This came into force on 08 April 2016. If convicted of violence against his wife a man faces a high fine and several years of Imprisonment.
However, as World Vision has said, the culture of male dominance is deeply entrenched and has been accepted by men and women alike in the Solomon Islands[3].
[3] "Hope for a Safer Solomon Islands" World Vision, February 2016
It is my submission that social change is necessarily slow and embedded social and gender norms are difficult to counteract simply by introducing legislation. This is only a first step towards preventing family violence towards women. Time and government commitment is required for any change in attitudes and beliefs of the general population.
[Ms A] fears returning to the Solomon Islands and the harm her husband will inflict on her. The Solomon Islands has a population of approximately 600,000. With such a small population there will be no-where safe for her to hide for any length of time. Eventually [Mr F] will learn of her return and, as he has paid a bride price for her, he will continue to believe he has rights over her. Her family will not protect her as they cannot afford to repay the bride price and do not want to create friction between communities.
In support of her statements that she has been subjected to domestic violence, [Ms A] is submitting the following documents:

·        A Statutory Declaration signed by [Ms A] attesting to the violence she was subjected to within her marriage;
·        A letter signed by [Mr C], [Detective], stating that [Ms A] lodged a complaint of assault against [Mr F];
·        A letter signed by [Dr B] stating that [Ms A] presented to the [Hospital] with multiple stab wounds. A copy of [Dr B]'s medical qualifications from a [medical] school is attached;
·        Letter signed by [Mr G] stating the extent of the violence [Ms A] was subject to at the hands of her husband;
·        Letter signed by [Mr D] stating the extent of the violence [Ms A] was subject to at the hands of her husband;
·        A letter signed by [Mr E], father of [Ms A], attesting to the violence in the applicant's marriage and his inability to repay her bride price to release her from the marriage.
The first 2 of these letters are reissued statements which were presented to DIBP at time of Visa Application. [Ms A] had organised for originals of these to be sent to her by [a] courier service.
[Ms A] is deserving of the grant of a Protection visa. She satisfies the criteria at paragraphs 36(2)(a) and (aa} of the Act in that she is a non-citizen who fears that returning to her home country will see her suffer significant harm. The Solomon Islands government will not be able to protect her adequately at this fledgling stage of their moves to stem domestic and family violence in the community. Nowhere in the Solomon Islands would be safe for her. Her husband will eventually hear of her return and will attempt to assert what he considers to be his rights over her.

Evidence at hearings

Evidence of the applicant

24.This matter was heard over two days, namely 27 September 2017 and
15 November 2017.
25.The Tribunal asked the applicant about the preparation of her application for protection. The applicant told the Tribunal that her friend [Ms H] wrote out the claims for her. She said she met [Ms H] in [Name 1] Park in [Australian City 1] when she went for a stroll there.
26.The applicant said that she contacted [Ms H] when she decided she wanted to make enquiries about obtaining a Protection visa. When asked by the Tribunal why she had chosen to contact [Ms H], the applicant just said that she thought [Ms H] would be a good person to talk to (about Protection visas).
27.The Tribunal asked the applicant how [Ms H] knew what to write. The applicant said that [Ms H] read out the questions to her, and she told [Ms H] what to write. The applicant said that all of her claims were supported by the medical report and the police report that she had provided for the hearing.
28.The Tribunal referred the applicant to the statutory declaration she had given. The Tribunal explained that the statutory declaration contained additional claims, such as the bride price, information and details that were not set out in the application for a Protection visa. The Tribunal asked the applicant why she had not included those claims, details and information in her application for a Protection visa, and explained that it might appear that the applicant had embellished or exaggerated her claims. The applicant responded that she provided more information in her statutory declaration as her Protection visa had been refused by the delegate of the Department. The applicant said that the delegate said that she had “lied and provided dodgy documents”. The applicant said that was why she had also provided more information from witnesses including her father and brother. She said that she did not set out all the details in her statutory declaration – the details regarding being stabbed and receiving threats to have her throat slit were not contained in her statutory declaration but were in her application for a Protection visa.
29.The applicant told the Tribunal that her marriage was arranged between her husband’s father and her father. She said that she got married [in] December 2008. After being married the applicant said that she and her husband lived in her husband’s family home in his village, with his parents and some of his siblings. The applicant said that the domestic violence started when her husband was drunk. She said that she did not open the door quickly enough for him when he knocked on it, and accordingly he beat her. When asked by the Tribunal why she had not referred to this incident in her application for a Protection visa the applicant said that she had forgotten. She said that she “can’t remember everything”.
30.The Tribunal asked the applicant whether she could recall other specific incidences of harm. The applicant said that her husband constantly threatened her with violence. She said that he beat her many times and threatened to cut her throat. She said that he also verbally abused her many times. The applicant said that the violence was ongoing and accelerated until her husband slashed her back. The applicant said that her husband told her she was “coming back to her funeral”.
31.The applicant told the Tribunal that she had forgotten some of this information when making her application for her visa and during the interview with the Department, but that she was putting it to the Tribunal now.
32.The applicant went on to say that when her husband wanted sex he would jump on her, and if she did not accept he would rape her anyway. The Tribunal asked the applicant whether she had told anybody else about being raped by her husband, and why she did not refer to it in her application for a Protection visa. The applicant’s response was that the word “abuse” had been used to include rape.
33.The applicant told the Tribunal that right from the beginning her marriage was no good. She said that her husband verbally abused her. She went on to say that sometimes her marriage was okay and sometimes it was bad. The Tribunal asked the applicant to pinpoint when she had first been physically hurt by her husband. She responded that he had sworn at her and abused her. She subsequently said the first time she was physically hurt was during the stabbing incident and that her husband had been physically violent on other occasions as well. At the second hearing the applicant told the Tribunal that in addition, her husband was offensive with respect to her father in a matter for been in the Solomon Islands’ culture.
34.The applicant first came to Sydney, Australia in July 2008 (before her marriage) for a church meeting. She said that she stayed in Australia for two weeks on that occasion. At the second hearing the applicant told the Tribunal that when she first arrived in Australia she went to [Australian City 2] where she met an elderly [couple] who are very involved in World Youth Day. She said that they are from [a named] parish. The applicant said that they picked her and others from the Catholic Church to stay with them and go by bus to Sydney for World Youth Day.
35.The applicant told the Tribunal that she came back to Australia in January or February 2010 to visit and stay with [the elderly couple] (whom she met during her first trip to Australia). She returned to the Solomon Islands around April 2010. At the second hearing the applicant explained that she stayed with [the elderly couple] for about two weeks. She said that after that she met friends from the Solomon Islands (who have now returned to the Solomon Islands) and travelled around with them to a number of places [details deleted].
36.The applicant said that she came back to Australia [in] June 2010 because she needed to get away from her husband. She said she came to Australia “on the off chance I would be able to make my way”. At the second hearing the applicant said that she funded her third trip to Australia from savings and help from her friends and cousins at home. She said that her friends and cousins were willing to provide help because they saw that what her husband did to her “was no good”. At the second hearing the applicant said that she stayed in Australia unlawfully until 2015 because she did not know how to go about getting a Protection visa before that.
37.The Tribunal attempted to clarify the applicant’s evidence. The Tribunal asked her when the incidents occurred, namely when did her husband consider that she was too slow to unlock the door, and when did he stab her. The applicant responded that both incidents occurred on the same day – her failure to unlock the door quickly enough prompted her husband to stab her. The applicant said that those incidents occurred in June 2009 and she had reported them to the police. She said that they were the most fearful incidents. The applicant went on to say that she had been raped plenty of times from the beginning of her marriage. She said that every single time her husband forced himself upon her.The applicant said that the stabbing incident was what prompted her to come to Australia.
38.The Tribunal asked the applicant why, given that she claimed to have been the victim of domestic violence right from the beginning of her marriage (December 2008), she did not seek a Protection visa whilst in Australia in 2010. The Tribunal also pointed out that the applicant had already experienced what she claims to have been the most fearful incidents before she came to Australia for the second time and then returned to the Solomon Islands. The applicant said that it was because when she came to Australia on that occasion she did not know how to ask for refugee status or make a claim for protection. The Tribunal put to the applicant that it might find it implausible that she would come to stay in Australia, with people from her church for three months and not explore her options with regard to obtaining a Protection visa, if she did in fact fear for her life in the Solomon Islands. The applicant’s response was that the second time she came and went back, after which her husband continued to abuse her and therefore she decided to come back to Australia and stay for good.
39.The Tribunal attempted to further explore the issues. The Tribunal asked the applicant to explain how the violence against her had continued to escalate if the most fearful incident/s is that referred to between her marriage and her second visit to Australia. The applicant responded by saying that violence which escalated was verbal, and thather husband had threatened to cut off her head and blow off her head.
40.The Tribunal referred the applicant to the documents she had placed before it. The Tribunal explained that the documents looked as if they had been photocopied and created for the hearing. The applicant responded that she did not know how to “doctor” papers. She said that she asked for the documents to be obtained and “they went through official channels”. She said that she rang the police and asked to go into her file. She said that she can only get an official stamp for the police.
41.The Tribunal asked the applicant whether she had or was able to obtain contemporaneous evidence of her contact with the police force and admission to hospital. The Tribunal pointed out one of the medical reports before it was, unusually for an official report from an institution such as a hospital, undated. The Tribunal explained that it would expect the applicant to be able to provide at least copies of notes made contemporaneously with her reports to the police and admission to hospital. In that regard the Tribunal noted to the applicant that the reports from the police and the hospital upon which she relied referred to incidents which occurred at least six years prior to the dates of the reports (other than the report from the Solomon Islands hospital which was undated). The Tribunal asked the applicant where the information contained within the police and hospital reports was drawn from given the length of time which had elapsed between the making of the reports and the incidents to which they referred. The applicant was unable to explain why there were no contemporaneous records from the police or the hospital other than to say that computers were not used in the Solomon Islands at that time.
42.The Tribunal asked the applicant how she made her report to the police [in] June 2009. The applicant said that the medical staff at the hospital rang the police to say that a woman had been stabbed. The Tribunal referred the applicant to the letters from the Royal Solomon Islands Police Force dated respectively 30 June 2015 on 13 July 2016. The Tribunal notes that both letters state inter alia “on date [in] June 2009 that the above-named person (referring to the applicant) of [location] has formerly lodged a complaint at [a] Police Station in [the] Solomon Islands”. The Tribunal pointed out that the letters make no reference to receiving a report from the hospital. The applicant responded that she presented to the police while in hospital.
43.The applicant told the Tribunal that after she was discharged from hospital she returned to her parents and they told her to return to her husband and forgive him. She said that her parents told her not to send her husband to prison. She said accordingly she “did not follow through with the case”. The Tribunal referred the applicant to the letters dated 30 September 2015 on 13 July 2016 from the Royal Solomon Islands Police Force. In particular the Tribunal referred the applicant to the statement contained within both letters namely “however, police [is] yet to complete the investigation on this matter to arrest the culprit to face the full force of law”. The Tribunal asked the applicant when she withdrew the complaint against her husband. She said she could not remember, but that she was worried that if the police continued in their efforts to arrest her husband he would attack her. The Tribunal then asked the applicant where she was when she withdrew the complaint. She said it was while she was staying at her mother’s house. Therefore, she said it would be during 2010 in the Solomon Islands. The Tribunal asked the applicant why then did the reports say that the “police [are] yet to complete the investigation…” The applicant said that she told the police she wished to withdraw her complaint just before she came to Australia, but the police told her not to do so.
44.The Tribunal explained to the applicant that it had concerns regarding the lack of consistency of her evidence with respect to the police reports. The Tribunal also explained that it had concerns regarding inconsistencies in the reports claimed to be from the hospital. Specifically, the undated report stated that the applicant was admitted to hospital “for 3 weeks”. The report dated 9 July 2016 stated that the applicant was admitted to hospital from [a date in] June to [a date in] July 2009, being a period of in excess of four weeks. The Tribunal explained that it therefore had concerns regarding the authenticity of the reports. In this regard, when it became obvious that the matter would need to be adjourned to a date to be fixed in order to complete the hearing, the Tribunal asked the applicant to obtain copies of documents evidencing contemporaneous reports to the police and hospital. At the second hearing on 15 November 2017 the applicant provided a further report from the hospital dated 4 November 2017 and from the police dated 1 November 2017. The November letter from the police was substantively the same as those previously provided from the police. The letter that was claimed to be from the hospital, whilst it contained more detail regarding the nature of the applicant’s injuries, was another report simply referencing events some eight years earlier.

45.The Tribunal asked the applicant about her claim in her application for a Protection visa that she provided that witchcraft would happen to her if she returned to the Solomon Islands. In response the applicant said that “if I return back they will give me food that has a curse and I will die”. She claimed that “they” will perform witchcraft on her food or on a piece of her clothing. The applicant said that “they” could request anyone to do it to her. When asked why she feared that by the Tribunal, the applicant responded that her husband had told her that if she goes back he is waiting to kill her. The applicant said that her sisters told her that he has approached them and threatened them.
46.The Tribunal asked the applicant how she obtained the reports from the hospital and police. The applicant initially said that she had received them by email. The Tribunal asked the applicant what email address she received the reports from. She did not respond to that question. The Tribunal explained that based on the reports it had seen there must have been a covering email to which the reports were attached. The applicant then said that [Ms H] helped her to download the reports at her house. She said that she gave [Ms H] the password and they opened the email together. The applicant’s agent volunteered that she had been provided with a number of reports on a [courier] envelope. The applicant said that she had asked her friend to get letters from the doctor and the hospital subsequent to the email versions.
47.The Tribunal asked the applicant about the bride price that was paid for her. She said that one day her husband’s father came to ask her father for the marriage and on another day came and paid the bride price. The applicant was unable to remember what the bride price was. When asked by the Tribunal she said that she has a problem and cannot remember details because she did not go to school after partway through Form 3, which is the equivalent of Year 9.
48.At the second hearing the Tribunal revisited the issue of the police report, three versions of which were provided by the applicant. The applicant said that when she went hospital she was asked there to make a report to the police. She said that prior to her admission to hospital she had never reported her husband, notwithstanding his poor treatment of her.
49.The applicant said that she has had no contact with her husband since leaving the Solomon Islands. She said that he has never called her on the telephone but that he contacts her family members and tells them he will kill her.
50.The Tribunal asked the applicant what her family thinks about her husband’s treatment of her. The applicant’s response was that her family were aware that culturally a disagreement like this could turn into a violent fight between the two families and that someone would die. When asked by the Tribunal whether her family had been threatened, the applicant said that her husband harasses and threatens them. She said that her husband has told her family that if they do not return the bride price he will kill her (that is the applicant) when she returns to the Solomon Islands. The applicant said that her husband has not tried to hurt anyone else in her family. The Tribunal notes it has before it a letter provided by [Mr E], the applicant’s father dated 5 September 2017 which states as follows:

With respect to the above subject, this letter serves to make reference to my daughter, [Ms A]'s marriage and give support to her efforts in seeking refuge from the seemingly unending fears of her husband's derogatory behavior towards her since 2009.
[Ms A] married [Mr F] under a Solomon Islands traditional family marriage arrangement with huge bride price payment from [Mr F]'s family, which involved big amounts of cash, [traditional] shell monies, artifacts and goods given to me and my family.
Their marriage however went misadventurous in 2009 following a series of family violence incidents that resulted in excessive harassments, abuse, and grievous bodily harm to [Ms A] and since then she has become a death target for [Mr F].
Considering the current state of the relationship between [Ms A] and [Mr F], I have been living under great duress to revoke their marriage, particularly to make bride-price repayments. It is unfortunate, however, that I will not be able to recover these items and to even arrange any repayments as I am now too old and unfit to work and do anything to recover their bride price items.

51.I however support [Ms A]'s efforts in seeking migration as the fate of her safety and stay in Solomon Islands is now not promising.The Tribunal asked the applicant whether she had any proof of being married. The applicant said that there are no certificates or photographs with respect to her marriage. The proof of the wedding is the handing over of the bride price. She said that she is legally married according to Solomon Islands law – it is a customary marriage under customary law. The applicant told the Tribunal that the marriage is not formally registered in any way.
52.The applicant made reference to her friend [Mr G]. She said that she had known him since she was a child and they had been to church programs together. The applicant said that [Mr G] works for a [business] in [the Solomon Islands] and she keeps in touch with him by telephone. She said that whenever she needs assistance she can contact him. The Tribunal notes that [Mr G] has provided a letter of support for the applicant dated 8 July 2016 which states as follows:
I am writing this letter to confirm my inter-personal relation with [Ms A] and to give brief on the domestic violence matter that she has been struggling with.
I have known [Ms A] as a good and close friend for almost twenty-five (25) years. Our friendship has been built on the basis of our youthful years together and closer inter-family upbringing. [Ms A] had a long term relationship with her Husband [Mr F]. It is regrettable, however that [Ms A] came to experience incidents of domestic violence in 2009 following her marriage to [Mr F] and that has enormous impact on her life, keeping her away from her family and a good network of close friends here in Solomon Islands.
[Ms A] went through a very hard time since she became a victim of such forms of violence. She suffered severe body cuts, facial bruise, verbal abuse, continuous harassment and since [June], 2009 she has been threatened to be killed by her partner. It is depressing to consider that death threat issued by [Mr F] is uncompromising, remains current and [Ms A] is absolutely vulnerable to that threat and motive whenever and where [Mr F] can reach her. I conscientiously believe [Ms A] deserves not to face such a situation.
I hope this will help you consider [Ms A]'s circumstance and I am readily available and can be answerable to any question regarding the matter.

53.At the second hearing the Tribunal explored further with the applicant the way in which she applied for the Protection visa. The applicant told the Tribunal that [Ms H] helped her. The applicant said that she saw [Ms H] in [Name 1] Street in [City 1] and that they smiled at one another and shook hands and said hello. She said that they then exchanged telephone numbers. The applicant went on to say that after she had stayed in Australia for a long time she called [Ms H] to ask her for help in obtaining a Protection visa. When asked by the Tribunal why she thought [Ms H] would be helpful the applicant said “I was just trying it, on the chance that she could help me”. The applicant said that she had heard from television that women in Australia can get protection from violence. She said therefore she rang [Ms H] to see if [Ms H] could help her on the off chance.
54.The applicant concluded her evidence by saying that if she returns to the Solomon Islands she fears that she would be killed and that her husband would know that she had returned. She said that the Solomon Islands is a small country and she would be seen and her presence reported back to her husband. With respect to the police report, the applicant said that her concern is that if the police persist with their investigation it will start a family fight and her husband will kill someone within her family.
55.The Tribunal discussed a number of concerns with the applicant including as follows:
·The absence of contemporaneous primary reports with respect to the police and hospital. In this regard the applicant’s agent submitted that the documents provided were the best that could be obtained. She said that she had attempted to ring the Solomon Islands several times and was hung up on. The applicant said that the reason the reports from the hospital and police were in the form presented is because there are only written notes kept in the Solomon Islands.
·The status of the police investigation. The applicant maintained at the first hearing that she withdrew her complaint, but the three claimed police reports before the Tribunal state that the investigation is yet to be completed. When raised at the second hearing, the applicant responded that she had just told her family not to persist with her complaint but that the case is still on foot. The applicant then said that she did withdraw the complaint. Her inconsistent evidence in this regard gives rise to further concerns on the part of the Tribunal.
·The consistency of the applicant’s evidence. Pursuant to the provisions of s.424AA the Tribunal put to the applicant information contained within the delegate’s decision recording the applicant’s interview with the Department, including her claims that she “nearly died several times”. In that regard the Tribunal notes that it pressed the applicant during both hearings about the violence she claims to have suffered at the hands of her husband. While she said that her husband physically hurt her a number of times, the most severe was the incident when she was stabbed. She said that she did not report any of the other incidences of physical harm because they did not result in “blood”. The Tribunal considers that had the applicant nearly died several times she would have provided further medical reports, and indeed there would have been more admissions to hospital.
·As well, pursuant to the provisions of s.424AA the Tribunal put to the applicant that during her interview with the Department, as set out in the delegate’s decision, she stated that she knew in the Solomon Islands that people could seek asylum in Australia. At hearing however the applicant stated that she did not seek a Protection visa until 2015 because she was unaware of their existence prior to that date.
·Failure by the applicant to raise her concerns regarding threats towards her family, either in her application for a Protection visa, or during the Departmental interview as recorded in the delegate’s decision, and put to the applicant pursuant to s.424AA. The applicant’s response was that she had told the Department about the threats towards her family.
·The further inconsistency of the applicant’s evidence with respect to the receipt of the claimed police and hospital reports. Initially the applicant said that she had printed them from her own email. There is no record before the Tribunal of the sender’s email address. Next the applicant said that she was assisted by [Ms H] in printing them off. A further version is provided by [Mr G] (see below) - that he had gone to various departments and obtained the reports. In addition the applicant’s agent submitted that she had received reports in a [courier] envelope.
·The time taken by the applicant to apply for a Protection visa. As referred to above the applicant was inconsistent in in that at hearing she said that the reason for the delay was because she was unaware of the availability of a Protection visa. The delegate’s interview she said that she had been aware, when in the Solomon Islands, that people could seek asylum in Australia. Furthermore, the Tribunal notes that the applicant visited Australia (for the second time) after the incident she claimed was the worst she had suffered at the hands of her husband and returned to the Solomon Islands notwithstanding. The Tribunal considers that the applicant would neither have returned to the Solomon Islands after her second visit to Australia, nor delayed seeking a Protection visa for more than five years after her third arrival in Australia, during which time she was unlawful for more than five years had she had a genuine fear of persecution. The applicant responded that no one told her “about these things”. She said that she did not think she needed to do anything about her visa status. Then she said that she was too frightened to go to the Department as she feared that they would “get me and lock me up”. She said that she “just stayed all around and wherever”. She said that she worked with friends in New South Wales to obtain a little bit of money to live on. The applicant then told the Tribunal that she did know about Protection visas just not the mechanics of how to obtain one. The applicant said that she knew that she was unlawful but she decided to stay anyway because she was safe. With respect to returning to Solomon Islands after her second visit to Australia, the applicant said that she was not thinking about remaining permanently in Australia then. She said that when she went back after the second visit to Australia she realised that there was no way that she would be able to stay safe or make money. Therefore, she said, she decided to go back to Australia.
·The meeting between the applicant and [Ms H], and how that led to [Ms H] being involved in the applicant making an application for a Protection visa. The Tribunal told the applicant that it found the circumstances of the meeting with [Ms H], and [Ms H]’s subsequent involvement in the making of the Protection visa application as claimed to be implausible. The Tribunal has concerns as to whether the applicant met [Ms H] by chance in [Name 1] Park (which the Tribunal observes is in [City 3]) or [Name 1] Street on the basis of simply smiling at one another. The Tribunal has further concerns that the applicant would contact [Ms H] a number of years (five) later on the off chance that she would know about and could help with an application for a Protection visa. The applicant responded by saying that nobody told her to find [Ms H]. She said that she thought [Ms H] would be able to help her make an application for a Protection visa because she has lived here for a long time and knows how to go on the Internet and fill in forms.

56.The applicant concluded her evidence by saying that everything she has said is the absolute truth. She said that her belief is that when she goes back to the Solomon Islands her husband will be waiting for her to kill her. She said that because of her culture she knows that the exchange of the bride price and her husband’s previous treatment of him mean that he will be waiting for her. She said that she has tried her absolute best with the documents and they are the documents that were given to her. The applicant said that her life is more important, that everything she has said is the truth and she will be killed. She went on to say that even though her words might be confused or confusing in the heart is the truth. She said that the documents are from the police and the hospital. The applicant said that because she has stayed away for such a long time the whole family will be angry with her and her belief is that her husband will be waiting for her.

Evidence of [Mr G]

57.[Mr G] told the Tribunal that he understood that the applicant was seeking protection in Australia because she feared family violence. He said that the applicant has received a death threat from her husband in 2009. When asked by the Tribunal how he knows there has been a threat, [Mr G] responded that he understood that the family had received a direct threat. He then said that the applicant has received a direct threat that her husband will carry out the threat and that it is common knowledge within the family.
58.[Mr G] said that he obtained the police and hospital reports before the Tribunal by going to the Criminal Investigation Department at the police and the Ministry of Health/Law.

Country information

59.The Tribunal has had regard to country information available including United States Department of State’s (USDOS) 2015 Solomon Islands Human Rights Report as set out in the delegate’s decision and repeated herein for completeness:
The US Department of State's (USDOS) 2015 Solomon Islands Human Rights Report states that domestic violence was a serious problem:
Violence against women, including rape and domestic abuse, remained a serious problem but was underreported. Among the reasons cited for the failure to report abuse were pressure from Male relatives, fear of reprisals, feelings of shame, and cultural taboos on discussion of such matters.[4]
[4] "Solomon Islands - Country Report on' Human Rights Practices 2015", US Department of State, 13 April 2016, 0GD95BE926339

The report noted that:
Although statistics were unavailable, incidents of domestic violence appeared to be common, and police confirmed that they received domestic violence complaints every week. In September the local press published an article reporting that the police had received over 400 reports of domestic violence in 2014 and that 500 reports were received between January-August 2015. Police believed the increase was likely due to increased awareness because of community policing outreach and education efforts.[5]
[5] "Solomon Islands - Country Report on Human Rights Practices 2015", US Department of State, 13 April 2016, 0GD95BE926339
Police made efforts to charge offenders for domestic violence and assault against women. In cases of reported domestic abuse, victims often dropped charges before a court appearance, or cases were settled out of court...The magistrates' courts dealt with physical abuse of women as with any other assault, but prosecutions were rare due to low judicial and police capacity and to cultural bias against women.[6]
[6] "Solomon Islands - Country Report on Human Rights Practices 2015", US Department of State, 13 April 2016, 0GD95BE926339

The World Health Organisation discussed gender based violence (GBV) and the 'bride price' in the Solomon Islands:
The causes of GBV are multiple, but it primarily stems from gender inequality and its manifestations. In Solomon Islands, GBV has been largely normalized: 73% of men and 73% of women believe violence against women is justifiable, especially for infidelity and "disobedience," as when women do "not live up to the gender roles that society imposes."... Men cited acceptability of violence and gender inequality as two main reasons for GBV, and almost all of them reported hitting their female partners as a "form of discipline," suggesting that women could improve the situation by "[learning] to obey [them]." Another manifestation and driver of gender inequality in Solomon Islands is the traditional practice of bride price. Although specific customs vary between communities, paying a bride price is considered similar to a property title, giving men ownership over women. Gender norms of masculinity tend to encourage men to "control" their wives, often through violence, while women felt that bride prices prevented them from leaving men.[7]
[7] World Health Organisation, 19 October 2011, Gender-based violence in Solomon Islands: Translating research into action on the social determinants of health;

Initiatives have been introduced to raise awareness and decrease levels of domestic violence. New legislation criminalised acts of domestic violence; Radio Australia noted that the parliament passed the Family Violence Bill in September 2014. The report stated, 'Like elsewhere in the Pacific, the statistics of violence against women in the Solomons are alarmingly high...Under the new laws, perpetrators will face jail terms of 3 years, as well as fines of $SI 30,000, or $AUS 4000.'[8]

[8] 'Historic Family Violence Bill Warmly Received in Solomon Islands' 2014, Radio Australia, 8 September < addition, stakeholders formalised a network that responded and provided care to those who suffered from GBV. Solomon Times reported in March 2013 that:
The five parties that will compose the Referral SAFENET include the Ministry of Health and Medical Services (MHMS) including Health Facilities, Integrated Mental Health Services (IMHS) and the Social Welfare Division; the Royal Solomon Islands Police Force (RSIPF); the Public Solicitor's Office; the Family Support Centre and the Christian Care Centre. The MOU outlines procedures and clarifies the role of the parties involved in responding to gender based violence incidents. Through implementation of the MOU the network aims to assist survivors by improving access to appropriate support services. The network will also work to support activities for the prevention of gender based violence.[9]

The report continued:
Each of the five parties involved play a different and essential role in the network. MHMS provide crucial time-bound clinical care for survivors... Social Welfare fulfill a coordination and protection role, the Police are responsible for protection and investigation, the Public Solicitor's Office provide legal assistance, Family Support Center offer counseling and Christian Care Center provide shelter and further care... The Referral SAFENET has established a GBV Helpline that uses the toll free number 132 and is operational 24 hours a day, 7 days a week. The helpline is available for survivors of gender based violence to call and receive support over the phone…[10]

The website of the Royal Solomon Islands Police Force states that the, `Seif Ples Gender-Based Violence Crisis and Referral Centre offers a comprehensive first response service for victim-survivors of sexual and gender-based violence in the Solomon Islands.' [11] The USDOS report stated, 'In 2015 the government endorsed a new National Gender Equality and Women in Development Policy and a National Eliminating Violence Against Women Policy.'[12]

Findings

[9] `Sakeholders to Sign Violence SAFENET MOU' 2013, Solomon Times, 13 March

[10] `Sakeholders to Sign Violence SAFENET MOU' 2013, Solomon Times, 13 March < Royal Solomon Islands Police Force — Seif Ples < 10 June 2016

[12] "Solomon Islands - Country Report on Human Rights Practices 2015", US Department of State, 13 April 2016, 0GD95BE926339

60.The Tribunal finds that the applicant is a [age]-year-old woman from the Solomon Islands.
61.The Tribunal finds that family violence and violence against women continues to be a serious issue in the Solomon Islands.
62.The Tribunal finds that there are a number of serious issues arising from inconsistencies in the applicant’s evidence both during the hearings, and as between the hearings and that Departmental interview. They include with respect to how the claimed police and medical reports were obtained, the extent of the violence she suffered at the hands her husband, and as to the status of the police investigation of her husband’s conduct. Such inconsistencies give rise to concerns regarding the applicant’s credibility generally.
63.The Tribunal finds that the applicant’s evidence lacked detail, and was contradictory and unconvincing. The applicant’s evidence evolved throughout the passage of her application for a Protection visa, from the making of the application, through the Departmental interview, and at the Tribunal hearing.
64.The applicant’s case was further undermined by her return to the Solomon Islands in April 2010, given that the applicant claims to have suffered violence since the commencement of her marriage in December 2008 and after what she claimed was the worst incident at the hands of her husband had occurred (in June 2009). As set out above, the Tribunal does not consider that the applicant would have returned to the Solomon Islands at that time if she faced a real chance of serious harm or a real risk of significant harm, were she to do so.
65.Similarly, the Tribunal considers that the applicant’s claims are further undermined by the fact that even after returning once again to Australia in June 2010, it was not until
29 October 2015 that she applied for a Protection visa. The Tribunal considers that had the applicant genuinely held the fears claimed she would have lodged a Protection visa application earlier, or at least made enquiries with the Department shortly after her (third) arrival in Australia.
66.Furthermore, the Tribunal does not accept the applicant’s explanation that she was not aware of the availability of Protection visas. This explanation contradicts her statement that she knew about the ability to seek asylum in Australia made at the Departmental interview. The Tribunal considers that, as the applicant had obtained three Visitor visas, and complied with the conditions of two of them, she would have been well aware of the process involved in seeking information regarding Australian visas. She would also have been aware of the importance placed by Australia on holding an appropriate visa at all times whilst present in the country.
67.Central to the applicant’s claim for protection during the Tribunal hearings is that her father was paid a bride price for her marriage to her husband. The applicant was unable to nominate the bride price paid. She claimed this was because she had a poor memory due to an incomplete education. The Tribunal considers that given the importance of the bride price to the applicant’s case she would have been aware of it in its totality. Furthermore, the Tribunal notes that no mention was made of the bride price in the applicant’s application for a Protection visa nor in the delegate’s decision’s recording of the Departmental interview as referred to above.
68.The Tribunal has taken into consideration the supporting documents placed before it. The Tribunal places little weight upon the claimed police and hospital reports for the reasons set out above, namely that they attach no contemporaneous primary source evidencing the applicant’s injuries such as notes of the applicant’s admission or discharge from hospital, or progress notes throughout her admission, nor a copy of the police report made at the time of the applicant’s injury. The Tribunal’s concerns regarding the claimed hospital and police reports are amplified by the fact that one of the hospital reports is undated, and that hospital reports are internally contradictory with respect to the length of the applicant’s admission. The Tribunal also places little weight upon the letters of support provided by [Mr G], the applicant’s friend, [Mr E], the applicant’s father and [Mr D], the applicant’s brother. Weighing up the Tribunal’s overall concerns regarding the applicant’s evidence, the Tribunal considers these documents to have been created for the purpose of bolstering her claim for protection. For the same reason the Tribunal places little weight upon the oral evidence of [Mr G].
69.Section 423A of the Act requires the Tribunal to draw an unfavourable inference as to the credibility of a claim raised or evidence presented that was not provided before the primary decision was made, if the Tribunal is not satisfied that the applicant has a reasonable explanation for not raising the claim or presenting the evidence earlier. The Tribunal is not satisfied the applicant’s explanations for not raising claims such as the fear of harm to her family or the bride price are reasonable and accordingly draws an unfavourable inference as to the credibility of the claims in those respects.
70.A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
71.Applying those principles in this case, the applicant’s return to the Solomon Islands in April 2010, and her delay of more than five years after coming back to Australia for her third visit in June 2010 before seeking a Protection visa add weight to the Tribunal making an adverse finding in relation to her credibility. The delay also contributes to the Tribunal’s finding that the applicant’s fear is not well-founded.
72.When all of these factors are considered together, the Tribunal finds that the applicant’s claims in relation to fear of returning to the Solomon Islands lacked credibility. Accordingly the Tribunal does not accept that the applicant faces a real chance of serious harm a real risk of significant harm if she returns to the Solomon Islands.
73.Taking into consideration all of the evidence before it the Tribunal finds that the applicant’s fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.
74.Furthermore of all of the evidence, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the Solomon Islands there is a real risk she will suffer significant harm.
75.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 s.36(2)(a).
76.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
77.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

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

Fiona Meagher
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country, in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or

(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

CI5D9559B12121

<htto:// mes.com/news/sakeholders-to-siun-violence-safenet-mou/7563><CXC28129414721>

[2019] AATA 5824

21 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness