1610890 (Refugee)

1610890 (Refugee) [2017] AATA 2356 (27 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610890
COUNTRY OF REFERENCE:                  Solomon Islands
MEMBER:Saxon Rice
DATE:27 October 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 October 2017 at 11:48am
CATCHWORDS
Refugee – Protection Visa – Solomon Islands – Particular social group – Women in the Solomon Islands – Domestic Violence – Lack of state protection – Witness credibility
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Solomon Islands, applied for the visa [in] August 2015. The delegate refused to grant the visa [in] June 2016. On 19 July 2017, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 10 October 2017 to give evidence and present arguments. The Tribunal was conducted with the assistance of an interpreter in the Solomon Islands Pidgin and English languages. The applicant is represented by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The applicant’s claims in protection visa application filed [in] August 2015 are summarised as follows:
·The applicant claimed that she left the Solomon Islands because her former husband used to assault her and if she returns, her husband would continue to assault her and the authorities will not intervene to help her.
·The applicant claimed that her husband would hit and punch her and he would also try to stop her from selling her [goods] at the markets by messing up her stall.
·The applicant stated that she did not try and get help from the police because she knew that the police would say that these are ‘family matters’ and it was not up to them to get involved.
·The applicant claimed that she tried to get away from her husband by going to her mother’s house but her husband followed her there and tried to hurt her.
The applicant elaborated on her claims in a statutory declaration dated [in] 23 May 2016 and are summarised as follows:
·The applicant claimed problems began in her marriage after her son [was] born.
·The applicant claimed that when she lived with her husband in [Location 1], he would have affairs with other women and would beat her almost daily with his ‘hands and fists’, either when he was intoxicated or sober.
·Her husband deliberately did not use ‘weapons’ to beat her as he did not want her to ‘bleed’ and visit a hospital.
·The applicant claimed that at the height of the ethnic tension, she tried to get away from her husband by going back to her home village in [Location 2] and following this trip, she returned with [her son] to live with her husband in [Location 1] for around one month as he told her he would not hurt her anymore.
·The applicant claimed that after a couple of nights, he started treating her the same way and she travelled to [Location 2] again, and her husband followed her and told her family that she must return to [Location 1].
·The applicant claimed that her family told her husband that she would not return with him and she ran away in the middle of the night, caught a boat back to [Location 1] and then flew to Australia where she has come for the sixth time.
·The applicant claimed that at the time of her marriage, her husband paid a ‘bride price’.
·The applicant claimed that she would be unable to relocate in the Solomon Islands as she believed that her husband would try to follow her and would not stop ‘harassing’ her.
·The applicant claimed that since she stopped living with her husband, he has constantly harassed her, telling her that they should get back together. Each time he saw her selling her produce at the markets, he would destroy her stall and make her scared so that she would go back to him and he would take the money she made at the markets.
·The applicant stated that the first time she came to Australia, it was to attend her [relative’s] wedding and the other trips in 2013 and 2014 was to run away to Australia to hide from her husband. The applicant stated that a friend named [Mr A] who works in a government department in [Location 1] helped her pay for these trips because he feels sorry for people in need and he has helped other single mothers.
·The applicant claimed that she did not understand English very well and on her first trips to Australia, she did not realise that it was possible to apply for a visa to help protect her from her husband.
·The applicant claimed that the police in the Solomon Islands do not want to get involved in disputes between husbands and wives. The applicant stated that this was her experience when there were problems between her mother and father and when her father abused her [sister].
In a submission dated [in] May 2016, the applicant’s representative reiterated the applicant’s claims and submitted that the applicant faces a well-founded fear of persecution by virtue of her status as a member of a the particular social group “women in the Solomon Islands“. The applicant’s representative also submitted that the Solomon Islands Government is unwilling or unable to protect the applicant from the harm that she fears.
The applicant has provided the Department a copy of her passport, a letter of support from her sister [dated] [in] September 2015 and a letter of support from [Mr A], [details of occupation] dated [in] June 2016.
The applicant attended an interview with the Department [in] May 2016. During that interview, she reiterated and expanded on her written claims including the following additional relevant evidence as set out in the delegate’s decision record which the applicant provided to the Tribunal:
·The applicant claimed that she lives in [a location in Australia], and she knows the family through their children; the applicant claimed that she had lived in this house for around two months. The applicant claimed that she received Centrelink payments, however she did not pay rent.
·The applicant’s travel history showed that she had travelled to Australia several times between 2008 and her last arrival in 2015; the applicant claimed that some of these had been personal trips and others were ‘due to the circumstances I was in’.
·In the Solomon Islands, the applicant lived in [location], located in east [Location 1]. Her [siblings] resided in [Location 1], and one other sister has married and moved to a separate village.
·The applicant’s son lives with her brother in [Location 1] and he was [age] or [age]-years-old.
·The applicant could not remember the date or year she was married.
·The applicant claimed that since her son was young, she returned to her husband for one month and she had not lived with her husband since that time. The applicant also claimed that she returned to her husband on two or three occasions for two to three weeks at a time, over an estimated 14-year period.
·The applicant fears that even though she is separated, her husband bought her with a ‘bride price’ so he believed that he ‘still owns me and treats me as his property and whatever he wants to do will do it. He can have sex with me anytime…he has the right to do it’.
·The applicant claimed that she reported her husband to the police, however no action was taken. The applicant could not recall when she reported her husband to the police.
·The applicant claimed that she worked at the [Market] and supported herself through casual roles that included [details of work].
·The applicant claimed that different people sponsored her airfare for her several trips to Australia. For her first trip, the applicant claimed that her [relative] paid for her to travel to her [other relative’s] wedding, and another time it was a 'businessman in [location].. (I) stayed with a [family] …A [public official] paid for (the) fare' for another trip. … Departmental records showed that [Mr A], a former [public official], supported the applicant's [visa] application. [Details of Mr A deleted].
·The applicant was questioned why a businessman and a former [public official] would help her to travel to Australia, and she claimed that the businessman was 'sorry for her because she was in a problem' and [Mr A] was 'trying to help' the applicant. In response to how she met these people, the applicant claimed that it was 'easy' to meet people as the Solomon Islands was a small place and she met them 'casually'. When asked to clarify where they met, the applicant claimed that she met them while working in [details of work].
·The applicant was asked about why she travelled to Australia for one week in 2011 and 2013, and she claimed that while she was away on her first trip her husband burnt her clothes, and after she returned her husband destroyed her market stall, so she departed for Australia for another week. The applicant claimed that she stayed with either the businessman or [Mr A], and their respective families, during these trips.
·In response to why she only travelled to Australia for one week after these claimed incidents, the applicant responded that it was just to get away from her husband and the Solomon Islands.
·The applicant was asked to describe the incident at her market stall, and she claimed that her husband came to the [Market] threw things on the ground from the table, and took one of her [equipment]. The applicant could not recall the date of this incident, or when it occurred in relation to her Australian trip.
·In response to whether her husband was aware about her trips to Australia, the applicant claimed that she 'hid' her departures from the Solomon Islands, and she has not heard from him or his family while in Australia. The applicant claimed that she did not know whether her son was in contact with her husband.
[In] June 2016, the delegate made a decision that the applicant is not a person in respect of whom Australia has protection obligations and refused her application for a Protection Visa. The applicant has provided to the Tribunal a copy of the Department’s Decision Record.
On 4 October 2017, the Tribunal received a pre-hearing submission from the applicant’s representative that reiterated the applicant’s claims and stated that the applicant ‘has little formal education and as a result has difficulty remembering dates and the sequence of events which lead her to leave the Solomon Islands’ and that ‘This created confusion in the course of her initial Protection visa interview with Department of Immigration and Border Protection’. The applicant’s representative also submitted that the applicant returned to the marriage many times over the course of the next few years and ‘she hoped the situation would improve and she wanted her son to have a father.
At the Tribunal hearing, the applicant provided an undated statement from a [Dr B] who claims to be a medical doctor registered in the Solomon Islands who states that the applicant is suffering from “recurring post-domestic violence syndrome”. The applicant also made the following relevant statements:
·The applicant’s application for protection was prepared by her representative at her instruction and the details of her application were true and correct. She stated that she is satisfied that her visa application is accurate and complete. She stated that she has not lodged any documents with the Department or that Tribunal that are false or misleading or incomplete and she has not had and changes in her circumstances regarding her claims since making her protection visa application
·In relation to the applicant’s ability to give evidence, the applicant told the Tribunal that she forgets and she gets confused and this affects her ability. The applicant said that in the Solomon Islands, she asked doctors for advice about this but she has not done so in Australia and she has no medical evidence or diagnosis of any cognitive impairment.
·The applicant told the Tribunal she lived with her [relative] for a couple of years and then her husband for a couple of years before her son was born and he is now in Form [grade] or Year [grade] at school and around [age] years old.
·The applicant said it is a problem for her to remember dates and times because she did not have much schooling. The applicant then said that she has trouble remembering dates when she’s in a situation and at the same time, she is not educated enough to know years and months.
·The applicant said she completed primary school and her employment was having a stall at the [market]. In addition, she worked in [details of occupation]. The applicant said she [details of occupation] but she left this job because her husband would come to the [workplace] and disturb her.
·In Australia, the applicant said she is supporting herself by receiving Centrelink payments and she has moved around a couple of times and now she is back in [town].
·The applicant told the Tribunal that after her son was born, she realised what sort of person her husband was and that is when the violence began. The applicant said she ran away from her husband so many times. The applicant said she cannot return to the Solomon Islands because her husband has now begun to get in contact with her son to send threats to her through him.
·The applicant said that when her son was a baby, her husband came into the home and beat her and she had to run away that night and she left the child and went to her sister’s house. She said her sister wanted the child so she snuck back and got him and then went to her home village where she stayed for 2-3 weeks and then went back to [Location 1] but her husband sought her out and beat her up because she took the child.
·The applicant said she made a report to the police but they took no action. The applicant said that her and her husband both ended up at the police station and were told to return home and sort out their problem.
·The applicant said she could not get employment because her husband would seek her out. She said she tried to start up at the market again but he would come and destroy everything in the market. The applicant said that although the market was a public place, it was difficult for the security to do anything because they would just say that she was his wife. She said that all sorts of things happened in the market and people died in fights so security would not side with her. The applicant said that security in [Location 1] is not like Australia and they do not take immediate action.
·Later, the applicant said her husband would come and throw everything off her table at the market and the security would not do anything. She said this happened whenever she went to the market to sell something, he would destroy her stall and sometimes she would run away and others would watch her table. When the Tribunal asked why she stayed at the market for nineteen years if her husband kept destroying her stall, the applicant said that from year to year, she would use the market because that is where families go to use the market.
·In response to inconsistencies with the applicant’s evidence and her statutory declaration regarding her travel to and from [Location 2], the applicant said she returned to [Location 2] and then went back to [Location 1] for one week and then went back to [Location 2] again for five days and returned to [Location 1] with her son. The applicant said she returned to [Location 1] with her son because her husband found her and he said he ‘bought’ her and the child and they had to return. The applicant then said that when she returned to [Location 1] her and her husband went to the police over her son and it went all the way before the courts to a magistrate and the magistrate told the applicant that although she was the primary caregiver to her son, she had to bring her child back.
·In relation to the range of accounts the applicant gave of her return to [Location 1] and the police and courts, the applicant then said that she had forgotten that the magistrate was about financial support for her child.
·In relation to Tribunal concerns about the applicant’s ability to get before a magistrate on this issue so quickly, the applicant then said that she was just remembering now that the magistrate was a long time before she took the baby back home and she was trying to clarify the times she applied for child support and took the child back to [Location 1].
·The applicant did not mention her appearance with the magistrate previously because she just remembered that right back at the beginning, she began to get a separation but she has no evidence of her court records because it is very hard to obtain and she has tried to contact them but can’t.
·The applicant said she saw the magistrate before she took her son to her family in [Location 2] because she was trying to receive back-pay for the [number of] years that had passed since her son was six years old.
·The applicant said that when she ran away to her family in [Location 2] the second time, her husband followed her and her uncles and aunts were not able to say anything because he bought her with a ‘bride price’ so she returned to [Location 1] with her husband.
·The applicant said she returned to her husband two or three times but she never really separated from him because they would separate but then she would go back to him because she felt that her child should have a father.
·The applicant said that when she left her husband, she stayed with her brothers which was around [distance] from her husband’s house but her husband could find her anywhere.
·The applicant said that her son has told her to be careful because his father has been in contact and he is asking about the applicant and he knows she is in Australia.
·The applicant said her husband was working as [details of occupation] but he was fired from that job. She said she has met some of his family but she does not meet them often and they are not close. The applicant said her last contact with her husband was before she came to Australia and that was the time she finished with him for good. She said they have not been in contact since but her son was in contact with his father last Christmas and her son said her husband wanted to have Christmas with both of them.
·The applicant said that when she was working at [workplace], her husband burnt her clothes and cut them with scissors because he didn’t want her to have nice clothes.
·In relation to any other incidents, the applicant said that her husband hit her but she has not mentioned this previously. She said that it wasn’t worth reporting because no action would be taken. The applicant showed the Tribunal [an injury].
·The applicant told the Tribunal that she went to the police two, three or four times. The applicant said there was the time when both her and her husband went to the police and she might have reported the time her clothes were burnt but she was not sure.
·In relation to the inconsistencies in her evidence to the Department and the Tribunal regarding the times she went to the police, the applicant said that even though she had a significant injury, the police wouldn’t do anything because it happened to so many other women and it would be hard for her family to provide her with any protection because culturally, her husband ‘bought’ her.
·In relation to medical reports, the applicant said that she had no medical reports other than one for her [injury] and she did not mention her [injury] previously because [details of injury].
·In relation to the statement the applicant provided from [Dr B], the applicant said that when she applied to the hospital to get her reports (which she did in the last couple of weeks), she was not able to get them and she was referred to [Dr B]. The applicant said [Dr B] was not her regular doctor in the Solomon Islands and she saw him maybe once or twice but the doctor she used to go to she had tried to contact but they were late in sending the reports.
·The applicant said she did not have any evidence of her relationship with her husband, photos of her son or documents regarding her marriage or appearance before the magistrate because it was a customary marriage and she did not think there were any documents of her marriage or a birth certificate for her son.
·The applicant said she did not have any other concerns about returning to the Solomon Islands other than her husband.
·In relation to the applicant’s multiple visits to Australia prior to claiming protection, the applicant said that she came to Australia because of the violence. In relation to her three visits of one week at a time, the applicant said she had a relationship with a businessman, [Mr C] who has since passed [away]. The applicant said that [Mr C] was a Solomon Islander who was resident in Australia and he supported her to come to Australia and supported her while she was in Australia. She said he was aware of the situation with her husband and he paid for her first trip and then said that he paid for two trips and another time for her to come by herself. The applicant then said that of the eight times she travelled to Australia, [Mr C] paid for four of those and he was the only person to pay for one of her trips to Australia. The three times, the applicant travelled to Australia for one week, she said she stayed in the house. The applicant then said she came for a holiday.
·In relation to the applicant’s visit to Australia for one month, followed by a visit for three months and then another for one month, the applicant said she came with a man who helped her to come and he paid for a visa for one year and she had to travel until the time was up because he paid for the visa. The applicant then said that she came to Australia those times because of the violence she was experiencing and her life was at such risk and she had a relationship.
·The applicant said her husband found out she was having a relationship and she was at even greater risk but she continued to return to the Solomon Islands because she thought things might calm down. The applicant then said that she thought her husband might let her move on with her life but he said she had to stay with him.
·The applicant said she did not apply for a protection visa on one of her earlier visits to Australia because she wanted to go back but when she did, her life was still at risk and her husband could have killed her at any time because he knew she was with another man. The applicant then said that she tried to apply for a protection visa but she did not know where to do it or where to get advice and she ended up at [Organisation 1] in 2015. Despite her multiple visitor visa applications, the applicant said she did not think she could talk to the Department of Immigration because she did not know how to do it in the Solomon Islands.
·The applicant said that she did not ask [Mr C]’s assistance in relation to her ability to remain in Australia she was not sure if he was a resident or just someone who travelled back and forth and she didn’t want to ask him to do things like that so the only way was to come through [Organisation 1].

The applicant requested that the Tribunal telephone her friend, [Ms D] in the Solomon Islands to be a witness. The telephone number for [Ms D] was not connected. The Tribunal offered to accept a written statement from [Ms D].
On 16 October 2017, the Tribunal received a statement from [Ms D] dated [in] October 2013 and a handwritten certificate dated [in] October 2017 from [a health clinic] in [Location 1] referring to an incident involving the applicant [in] October 2014.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
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.
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 s36(3).
Assessment
The applicant gave evidence to the Tribunal that her application for protection was prepared by her (then) representative and the details of her application were true and correct. She stated that she is satisfied that her visa application is accurate and complete. She stated that she has not lodged any documents with the Department or that Tribunal that are false or misleading or incomplete and she has not had and changes in her circumstances regarding her claims since making her protection visa application.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of the Solomon Islands, there is a real risk she will suffer significant harm.
During the hearing, the Tribunal discussed with the applicant her background, her family, her education, her employment, where she lived in the Solomon Islands, her reasons for leaving the Solomon Islands and why she fears returning to the Solomon Islands. The Tribunal found her evidence to be lacking in detail, lacking in credibility, at times vague and evasive, contradictory and unconvincing. There were numerous inconsistencies in her evidence which raise issues in relation to the veracity of her claims and her credibility generally. The Tribunal is of the view that she is not a reliable or credible witness for the reasons that follow.
The Tribunal does not accept that the applicant was in a violent relationship with her husband, that she was harmed or harassed by her husband or that she faces any risk of harm from her husband upon return to the Solomon Islands.
The applicant was unable to provide the Tribunal with any coherent or consistent account of events in relation to her marriage, its duration, incidents she claimed occurred between her and her husband or how often the applicant ‘returned’ to her husband after the claimed violence began. Similarly, the applicant’s evidence in relation to the explanation of her seven visits to Australia over a seven year period prior to her application for protection evolved throughout the course of the Tribunal hearing and contradicted her earlier evidence.
The Tribunal notes that applicants may not be able to remember exact dates or locations in relation to their claims for protection and at various times, the applicant and her representative told the Tribunal that the applicant had trouble remembering and was confused about dates and sequences of events. The main reason given for this memory loss and confusion was the applicant’s limited education to completion of primary school. However, the applicant also told the Tribunal that she did not have any medical evidence or diagnosis to support her claim of memory loss or cognitive impairment. In addition, the applicant’s representative, speaking for the applicant at her request, also told the Tribunal that the applicant may appear to have been vague and evasive in her evidence because the Solomon Islands culture is not one that follows dates and times and the applicant does not think it is important to remember them and this causes her evidence to get jumbled. The Tribunal finds that this explanation contradicts the applicant’s earlier claim that she cannot remember these things because she only has primary school education and in the absence of any medical evidence, the Tribunal does not accept the applicant’s explanation for her inability to recount with some accuracy, the significant events relating to her claims for protection.
Significant inconsistencies in the applicant’s evidence and central to her claims for protection include:
·When the applicant first left her husband and returned to her family in [Location 2] she provided conflicting accounts in relation to her return to [Location 1] which are not consistent with her statutory declaration. For example, the applicant told the Tribunal that she went back to [Location 1] but her husband sought her out and beat her up because she took the child. However, her statutory declaration states that she returned with her son to live with her husband in [Location 1] for around one month as her husband told her he would not hurt her anymore.
·When the applicant claimed to have returned to her family in [Location 2] the second time, she told the Tribunal her family told her there was nothing they could do because of the ‘bride price’ that had been paid. However, the applicant’s statutory declaration states that her family told her husband that she would not be going back to [Location 1] with him.
·The applicant provided a range of accounts of how many times she returned to her husband, including, as set out in the delegate’s decision record, that she returned to her husband once for approximately one month but later she said that she returned to her husband two to three times for two to three weeks at a time over the course or a fourteen year period. However, the applicant told the Tribunal that she could not remember how many times she returned to her husband. She said it was multiple times, it was on and off until she last arrived in Australia and throughout the period she said she was in a relationship with another man.
·The applicant’s statement from her sister [states] that she had custody of the applicant’s son from the time he was a baby and he only went to [Location 1] when he went to school. However, the applicant at different times referred to returning to her husband so her son could have a father. The applicant’s sister also stated that the applicant never made any reports to the police which contradicts the applicant’s evidence that she went to the police on a number of occasions, including an appearance before a magistrate in relation to child support.
When the Tribunal invited the applicant to comment in relation to these inconsistencies, the applicant said that she cannot remember so that is a problem for her and she cannot remember how she said it originally.
The Tribunal also raised with the applicant that until the Tribunal hearing, the applicant’s evidence was that she had not spent very much time with her husband and she had only returned to her husband on a number of occasions and therefore, the majority of the evidence was that her husband was continuing to harass her but she had told the Tribunal that she continued to live with her husband until she last came to Australia some two years ago (although the applicant said that she ‘came and went’). The Tribunal also raised with the applicant that on the one hand, she claimed to have trouble remembering dates and events and the evidence she provided previously but on the other hand, she had raised new evidence that she was in another relationship prior to her arrival in Australia and for a number of years that was at odds with her previous evidence and reiterated that the Tribunal did not have any evidence before it in relation to the applicant’s memory loss or cognitive ability. The applicant did not provide any explanation for these concerns.
The Tribunal also discussed with the applicant that other concerns raised by her evidence included:
·The number of visits she made to Australia and that she told the Department, as outlined in the delegate’s decision record that a businessman and another person, [Mr A], paid for her travel to Australia but she told the Tribunal that [Mr C], the businessman, was the only person who assisted her in this way.
·The applicant has had a number of visitor visa applications and appeared to be surrounded by people like [Mr C] and [Mr A] who were aware of her situation and could assist her to find people in Australia to advise her but there was a considerable delay in the applicant’s application for a protection visa. The Tribunal also noted that the applicant claimed that while travelling to Australia on a number of occasions with a man she was in a relationship with, she also claimed she continued to return to the Solomon Islands because she thought things might ‘calm down’ with her husband.
·The applicant’s family, according to her statutory declaration appeared willing to assist her and offered her protection by telling her husband that she would not return to [Location 1] with him but the applicant did not avail herself of that protection.
·That while the delegate in their decision accepted that the applicant was subject to low level harassment from husband based on one incident the applicant described in the market, in light of the Tribunal’s concerns regarding the applicant’s evidence about these incidents and her overall evidence, it might not accept that the applicant was subject to low level harassment.
Following an adjournment for the applicant to discuss the Tribunal’s concerns the applicant’s representative, responding on behalf of the applicant at her request, advised the Tribunal that, in addition to the applicant and her culture placing no importance on dates and times, in relation to the applicant’s multiple visits to Australia, the applicant was not in a sexual relationship with [Mr C], they were just friends and she travelled for a holiday with him. The applicant’s representative also advised the Tribunal that the applicant had not properly explained to [Mr C] her situation in the Solomon Islands, or at least she had not explained enough that she felt comfortable to talk to him about wanting to stay in Australia. The applicant’s representative also told the Tribunal that the applicant’s family could not protect her because they could not protect themselves.
The applicant’s representative submitted that the applicant represents a woman driven to extremes and that she was ashamed of her actions in relation to [Mr C] and that may account for why she attempted to hide this from the Department and the Tribunal. The applicant’s representative told the Tribunal that the applicant was in need of Australia’s protection because her husband found out about the applicant’s friendship with [Mr C] prior to her last arrival in Australia in April 2015 and he believes that this was an extra-marital affair.
The Tribunal raised a number of further inconsistencies in the applicant’s evidence based on these explanations, including that the applicant had said her husband was aware of her relationship with [Mr C] during her multiple visits to Australia and not only from her last arrival in April 2015. The applicant said that during that trip (her last arrival in Australia), [Mr C] did not travel with her but met all her expenses and then followed her to Australia and it was after that, her husband found out. The Tribunal reminded the applicant of her earlier evidence during 2014 when she spent six out of seven months in Australia that her husband knew of her relationship then. The applicant then said that she was confused about everything. She said that it does not mean that she had a relationship even though people might think that because he helped me, he was my boyfriend. The applicant said [Mr C] helped her because he knew of the violence she was going through.
The Tribunal also noted that the applicant had again said that [Mr C] was aware of the violence but this was inconsistent with the applicant’s evidence through her representative that she had not properly explained her situation to [Mr C]. The applicant said that even though he knew of the violence, he wouldn’t follow through to apply for a protection visa. The Tribunal does not accept any of these explanations and finds that the applicant’s difficulty in the consistency of her evidence is because she was not recounting a personal experience. Accordingly, and in light of the extent of inconsistency and contradiction in the applicant’s evidence, particularly in relation to the evidence that her husband continuously destroyed her market stall yet she claimed she continued to have the market stall for nineteen years, the Tribunal does not accept that the applicant was subject to low level, or any kind of harassment from her husband.
In addition, the Tribunal does not accept the medical report the applicant provided at the Tribunal hearing as genuine. The Tribunal raised its concern with the applicant that she had more than two years since she lodged her application for protection to obtain and provide any medical evidence. It also noted a number of concerns in relation to the statement that she provided from [Dr B], including that he made a diagnosis about her ‘condition’ that she “suffered from a recurring post-domestic violence syndrome over the years” when she said she saw him once or twice, the document was not dated or on any letterhead. The applicant said that the last time she saw [Dr B] was a long time ago. When the Tribunal asked the applicant if the statement was a genuine document, the applicant said that the doctor sent it to her and she printed it out from a different place and the real statement from the doctor was coming. The applicant also said that at the time, she was not able to think clearly and she wanted to commit suicide and that’s why she asked the doctor for help.
When the Tribunal asked the applicant about the ‘real statement’ coming from another doctor and why it had not been provided previously, the applicant said that it was hard for her to obtain because of network drop-outs; it was difficult for her to contact and she would have to spend up to $200 to top up on her phone because every document she needed to get she had to pay for. The Tribunal noted that it might have difficulty in accepting network drop-outs over a two year period since she lodged her protection visa application, or that she could not pay the necessary amount of money over the last two years when she said she was supported by friends and receiving Centrelink payments. The applicant said it was not possible because when she rings, they want immediate payment and to them, it is an insignificant issue.
The Tribunal has had regard to the statement the applicant provided following the Tribunal hearing from [a health clinic]. The Tribunal notes that the name of the doctor on the letterhead is [name of doctor]. However, the signatory to the hand-written statement is illegible. The Tribunal also notes that the applicant’s representative told the Tribunal that she hoped this evidence would outline the applicant’s depression as a result of her situation because she was very depressed in the Solomon Islands however, there is no reference to depression on this document. In light of the Tribunal’s concerns outlined above, the Tribunal has placed little weight on this document.
The applicant’s evidence continued to evolve throughout the Tribunal hearing in relation to her visits to Australia, what the purpose of each visit was, who she was with and who paid for her travel. When the Tribunal questioned the applicant about her travel that included her being in Australia for six out of seven months in 2014 and how that worked with her husband given she was in another relationship and she said she was still living with her husband and how she maintained her stall at the markets, the applicant said that her husband found out that she was having a relationship and she was in even more danger. When the Tribunal asked the applicant why she continued to return to the Solomon Islands in those circumstances, she said that she thought it might have calmed down if she returned to the Solomon Islands. However, the Tribunal finds it implausible that the applicant would continue to return to the Solomon Islands and think things might have calmed down given the violence she claims her husband perpetrated and when she was also in a relationship with someone else.
Contributing to the Tribunal’s findings is the fact that the applicant did not apply for a protection visa for more than seven years after her arrival in Australia, during which the applicant claimed her husband continued to be violent towards her. While the applicant told the Department that her first visit to Australia was to attend a [relative’s] wedding and she told the Tribunal she came to Australia for a holiday, the applicant also claimed to have left the Solomon Islands in fear of her life due to the violence. The applicant also told the Tribunal she was in contact with the Department of Immigration in relation to her visitor visas and claimed to have made four visits to Australia with [Mr C] who she said was aware of her situation with her husband and was supporting her travel and stays in Australia. If the applicant genuinely held the fears claimed, the Tribunal would have expected her to have lodged a protection visa application, or to have at least made inquiries with the Department, shortly after her arrival in Australia or at least on one of the occasions she claimed to have travelled to Australia to get away from her husband and the violence. The Tribunal does not accept the applicant’s explanation that she applied for a protection visa only after she met with [Organisation 1] on her eighth arrival in Australia.
For the sake of completeness, the Tribunal has had regard to the statements the applicant provided in support of her application from friends and family. However, in light of the Tribunal’s concerns and findings above, the Tribunal places little weight on these documents.
When these factors are considered together, the Tribunal finds that the applicant’s claims in relation to any fear of returning to the Solomon Islands to be completely lacking in credibility. Accordingly, the Tribunal finds that the applicant was not the victim of domestic violence in the Solomon Islands and will not be subject to domestic violence by her husband [if] she returns to the Solomon Islands in the reasonably foreseeable future.
It follows that the Tribunal does not accept that the applicant has been in any way harmed by her husband in the past; that the applicant has been threatened by her husband; or that she faces a real chance of serious harm or a real risk of significant harm if she returns to the Solomon Islands.
Cumulative assessment
Considering the applicant’s individual circumstances and country information on a cumulative basis, the Tribunal finds her 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.
Considering the applicant’s individual circumstances and country information on a cumulative basis, 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 that there is a real risk she will suffer significant harm.
CONCLUSIONS
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).

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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Saxon Rice

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
(1)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.
(2)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.
(3)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.
(4)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.
(5)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.
(6)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
(1)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.
(2)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.
…

[2017] AATA 2356

27 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction