1612946 (Refugee)

1612946 (Refugee) [2017] AATA 2082 (20 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612946
COUNTRY OF REFERENCE:                  Solomon Islands
MEMBER:Saxon Rice
DATE:20 October 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 October 2017 at 2:02pm
CATCHWORDS
Refugee – Protection visa – Solomon Islands – Social group – Victim of domestic violence – Arranged marriage – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 424AA, 438, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559 at 596
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 on 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] January 2016. The delegate refused to grant the visa [in] June 2016. On 20 July 2017, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 12 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 not represented in this review.
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 her protection visa application filed [in] January 2016, and set out in the delegate’s decision record that applicant provided to the Tribunal, are summarised as follows:
·The applicant claimed that she was in a 'very abusive' relationship with her fiancé; she claimed that he bashed her several times and she nearly lost her life on several occasions.
·The applicant claimed her family forced her into an arranged marriage.
·After her fiancé beat her, the applicant claimed that that she was hospitalised in [a hospital in], Malaita Province.
·The applicant claimed that domestic violence was seen as a private matter and women were often mistreated for `dishonouring' a man's family'.
·The applicant claimed that she was also ‘chased’ and ‘bashed’ and had to seek ‘refuge’ in a home of a [teacher] from [school]. Her fiancé became jealous and believed that she was ‘having an affair with someone else’.
·The applicant claimed that she escaped and lived with her friends ‘in hiding’.
·The applicant claimed that she disowned her family and has moved in with her boyfriend, however this endangers her boyfriend.
·The applicant wrote that her safety is not guaranteed, and she feared for her life and those who supported her. She is traumatised and feared return to the Solomon Islands.
·The applicant claimed that she did not know how to obtain her medical reports, and she did not report any of the incidents to the police.
·The applicant claimed that she could not relocate within the Solomon Islands as it is a small country, and her sister helped her purchase her ticket to Australia 'to seek help and look for a better future'.
The applicant has provided the Department a copy of her passport and a copy of her flight itinerary.
The applicant did not attend her scheduled interview with the Department [in] June 2016.
[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.
Included in her application for review, the applicant provided a statement from [Witness 1] dated [in] February 2016 and a letter of support from [Witness 2] dated [in] February 2016. Prior to the Tribunal hearing, the applicant did not provide any additional information in support of her application for protection.
The Tribunal notes that the applicant’s departmental file includes a certificate and notification regarding the disclosure of certain information under s. 438 of the Migration Act 1958. The reason given for why disclosure of the information subject to the certificate would be contrary to the public interest is that the folios contain information relating to ‘an internal working document and business affairs’. Two of the folios concerned contain purely administrative material including the Department’s visa processing checklist and disclosure decision checklist. The two other folios relate to a file note regarding correspondence or conversation with the applicant regarding her application and a file note relating to the applicant’s visitor visa application.
The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason has not been identified for the relevant folios, finds the certificate invalid. In any event, the administrative folios and the folio relating to the applicant’s application have not been considered relevant to this review. The folio relating to the applicant’s visitor visa application was considered by the Tribunal to be relevant to the review and was discussed with the applicant in accordance with s.424AA procedure outlined below. The Tribunal advised the applicant of the existence of the certificate and provided her with a copy at the Tribunal hearing. The Tribunal also advised the applicant of its finding to be invalid. The applicant made no submission to the Tribunal in relation to this matter.
At the Tribunal hearing, the applicant made the following relevant statements:
·From 2008-2015, the applicant lived with her aunt and uncle in [City 1]. This was originally in [the west of City 1] and then they moved to [the east of City 1]. The applicant then said that in 2010, she also lived with another family in [City 1] who sponsored her schooling.
·The applicant confirmed her employment as set out in her protection visa application and stated that she did not hold any other jobs.
·In Australia, the applicant said she was working [until] her baby was born and she is receiving Centrelink payments.
·The applicant said her mother lives with her step-father in [Malaita] and she has [step-brothers] that she is not close to and no other siblings. She said she talks to her mother on the phone when there are significant issues like the death of her cousin and the birth of her baby. The applicant said her other relatives include her aunt, uncle and cousins she lived with in [City 1] and these were her only relatives. She said she is close to her [Aunt A] and they often communicate weekly through Messenger.
·The applicant told the Tribunal that she met the father of her baby [in] November 2016 in Australia. When the Tribunal questioned the applicant regarding the timing and birth of her child, she said she knew her [partner] in [City 1] and when he came to visit family in Australia, they met up again. The applicant told the Tribunal that [her partner] has lodged a protection visa application on the basis of their relationship and the birth of their child because he fears that her former fiancé in the Solomon Islands will kill all of them if they return to the Solomon Islands.
·The applicant told the Tribunal that she had no other children in Australia or the Solomon Islands.
·The applicant told the Tribunal that her former fiancé, [Mr A] lives in [City 1] and their engagement was arranged and she was betrothed to [Mr A]. They never married because he abused her too much. The applicant told the Tribunal that she lived with [him] after the engagement and he beat her, threatened her and one time, on her way to school, tried to stab her in the chest and she ran away and hid in the house of one of her [teachers] and her [Aunt A] came and collected her.
·The applicant told the Tribunal that she could not remember when they got engaged but then told the Tribunal that she was working at [Organisation 1] at the time which was in 2013. The applicant said they lived [in] [City 1 Central].
·The Tribunal questioned the applicant about how she was living with her fiancé when she had stated that she lived with her aunt until 2015. The applicant said that she was living with her aunt when she was approached for the marriage arrangement and then her fiance’s sister insisted that she live with her fiancé for a period of time but she did not stay with him full-time, she said she would “come and go”. The applicant said it was her culture that once arranged to be married, she would be allowed to go and remain in her family house and vice versa.
·The applicant told the Tribunal that the inconsistency between what she previously told the Tribunal about living with her aunt until 2015 and her evidence that she also lived with her fiancé was because when she filled in the form, she was so stressed because she didn’t want to be an over-stayer and it was not clear in her mind when she was filling in the application form. The Tribunal noted that it was not referring to what the applicant wrote in her protection visa application but what she had told the Tribunal. The applicant stated that her mind was in a continual state of stress and when she is under pressure, she doesn’t know what to do because she doesn’t want to return.
·The applicant claimed that her fiancé has threatened her and the situation is now worse because she has had a baby to a different man and news of the birth of her son has reached her fiancé in the Solomon Islands and her fiancé has promised to kill her.
·The applicant said she was betrothed to [Mr A] because her relatives wanted her to do it. She said that her relatives arrived at the house to ask for her. She said it was against her will because she had a boyfriend but they did not get married, a ‘bride price’ was not made but promises were made.
·The applicant said that the relatives that arranged the marriage were cousins on her mother’s side from Malaita and they came to her [Aunt A’s] house. They are not close relatives but it is her culture that they are involved in any issues regarding who she will marry. The applicant said her [Aunt A] felt sorry for her and tried to protect her but the relatives on her mother’s side were more forceful. She said they chose [Mr A] based on his clan or tribe.
·The applicant then said that [Mr A’s] parents came to ask for the marriage arrangement because they knew that the applicant’s relatives were in [City 1] staying at [Aunt A’s] house because they came to sell [goods].
·When the Tribunal questioned the applicant regarding the consistency of her evidence regarding how the marriage or engagement was arranged, the applicant said that her relatives came to [City 1] to sell [goods] and after the meeting when they came and asked for her, she was immediately forced to go and stay with [Mr A] in case she fell in love with someone else.
·The applicant said that [Mr A] abused her and when her relatives found out that she didn’t like him, her relatives beat her too. Her [Aunty A] tried to protect her but couldn’t.
·The Tribunal asked how her relatives beat her if they had returned to Malaita. The applicant said that when the agreement was made and she didn’t agree with it, she was beaten by her cousin to go and live with [Mr A]. She said she was beaten by [Mr A] and all her relatives said she had to live with him and eventually, she found a way to come to Australia. She came to Australia and went back to the Solomon Islands because she thought [Mr A] might change but he continued to do the same thing and she came back to Australia and stayed until her visa ran out.
·In relation to her claim that she was hospitalised in [a hospital] in Malaita when she was living in [City 1], the applicant said that she travelled with [Mr A] to attend [an event] in 2014 and he beat her and she was bought to [a hospital]. The applicant said that the hospital has her records but she has not obtained them and cannot obtain them because it is hard to find someone to go to the hospital to collect the report; she cannot call the hospital because she does not have the telephone details and she tried to search on the internet but it is not available; it is difficult for anyone to follow up on her requests because they are busy and all her relatives want her to marry [Mr A] so none would want to go to [the] hospital to collect the records; and she did not ask her [Aunt A] because she was under pressure. Later, the applicant claimed that she tried to contact the hospital.
·The applicant claimed that [Mr A] has met up with her clan or tribe and told them that if she comes to the Solomon Islands, it will be her last day to live. She was made aware of these threats by Messenger with the last threat being made in [2017] when her baby was born. The applicant told the Tribunal that she does not have any evidence of these messages on Messenger because she deleted them. The applicant said that she felt the documents she had already provided in relation to her protection visa application was enough and she didn’t realise that private family conversation could be used as evidence or that the Tribunal would ask about this.
·The applicant said that she did not make any reports to the police and she did not take any photos of any injuries she suffered. The applicant told the Tribunal that she only had three days to collect all her evidence for her protection visa application and if she knew about protection visas when she was in the Solomon Islands, she would have put more effort into collecting the evidence.
·The applicant claims that she ‘disowned’ the relatives that forced her into the arrangement. She said that because she ran away, she has shown disrespect to her relatives and [Mr A’s] family are also cross with her. She said she has not disowned [Aunt A] and she tells her what is going on at home.
·The applicant told the Tribunal that she first came to Australia to get away from [Mr A]. She chose Australia because other countries don’t use a visa and for Australia she had access to a visa and a chance to come with friends and they helped her with her visa. The applicant said she did not know anyone in other countries. She did not apply for a protection visa on her first visit because no one told her about protection visas. She returned to the Solomon Islands because she thought her fiancé might change and she would give him a chance. She stayed with her fiancé when she returned to [City 1] but after one week, he continued to beat her.
·The applicant said she found a way to return to Australia and she intended on coming back to Australia to stay but she did not ask her friends or the Department of Immigration for any advice on how options for remaining in Australia. She said it took her almost six months to return because she had to save the money for her fare. The applicant also said that her friends were not helpful in providing information because they had never been through the process and eventually a church member told her about protection visas.
·The applicant said that she did not attend her departmental interview because the letter went to a friend’s address and by the time she received it, the date to attend the interview had passed by two weeks and she did not contact the Department to explain. The Tribunal noted that the delegate’s decision record indicates that the applicant was emailed her invitation to an interview [in] May 2016 for her interview scheduled for [June] 2016. The applicant said she did not get notice of her interview by email, only her decision record.
·In relation to information (outlined to the applicant in accordance with s.424AA procedure) that the applicant was part of a Solomon Islands Government delegation transiting through Australia and that her visitor visa was organised by the Solomon Islands Government where she was listed as [an occupation], the applicant was offered but did not seek additional time to respond and told the Tribunal that the Solomon Islands Government is corrupt and she paid money to a corrupt government official for this visa to be obtained and she does not know what ‘status’ or ‘title’ was put in for her. The applicant said that she did it this way because she really needed to get out of her abusive relationship and someone told her that this person can “make the visa” for her. Later, the applicant also said that she did not expect her contact to ask for money and she never expected the Tribunal to ask her questions about this.
·When asked why the applicant returned to the Solomon Islands if she bribed a government official to get the visa for her, the applicant told the Tribunal that she did not know about the visa and the government official asked her to go and collect the forms and he told her he would fill them in himself. He told her that if she gave him the money, he would process the applicant but she does not know what he did to process the application.
Evidence [of] (‘[Aunt A]’)
·[Aunt A] told the Tribunal that the applicant lived with her from 2008 until 2015.
·[Aunt A] told the Tribunal that when the applicant was living with her and her husband, there was an arranged marriage that was supposed to happen. This was arranged in October [2012].
·[Aunt A] told the Tribunal that the applicant was engaged to [Mr A] but he did not treat her well. She said that it was their culture that the applicant had the right to go and stay with her fiancé.
·[Aunt A] told the Tribunal that one time, [Mr A] threatened to cut the applicant and she went and picked the applicant up from someone’s home where she was hiding.
·[Aunt A] told the Tribunal that her husband and the boy’s parents arranged the marriage. After questioning from the Tribunal, [Aunt A] said that other relatives had come from Malaita.
·[Aunt A] told the Tribunal that because [Mr A] treated the applicant badly, the two sides decided not to resolve the issue. She said that exchange of ‘shell money’ had been provided and given the arrangement was going to collapse, compensation should have been paid by [Mr A’s] family because he had abused the applicant. [Aunt A] said that the boy’s side did not honour the arrangement and did not come back to make reconciliation over what had happened and now, the two parties have separated and all acknowledge that [Mr A] did the wrong thing.
·[Aunt A] said that now that the applicant is in Australia with a new baby, culturally, this would be a disgrace to her family because the issue is not yet resolved and [Mr A] will believe he still has rights over the applicant.
·[Aunt A] told the Tribunal that the only time she was aware of the applicant’s relatives being violent toward the applicant was in 2013 when a cruel cousin beat her [because] she was not allowed to come home after dark.

Following [Aunt A’s] evidence, the Tribunal raised a number of inconsistencies and concerns with the applicant as follows:
·In relation to information (outlined to the applicant in accordance with s.424AA procedure) that the applicant’s claim in relation to how her marriage had been inconsistent and included that it was arranged when her distant relatives come from Malaita to ask for her; her fiancé’s parents came to ask for her because her distant relatives were in [City 1]; and, according to her witness, that her uncle, the witness’ husband, and her fiancé’s parents arranged the marriage, the applicant was offered but did not seek additional time to respond and told the Tribunal that her uncle made arrangement at his house at the time her relatives arrived and her fiancé’s parents came to her [Aunt A’s] house and they asked for the applicant to be betrothed and married. The applicant said that her relatives that had come for the [goods] sale forced her to marry the boy against her wishes and one of her cousins beat her. She said that when she stayed with her fiancé, he beat her and threatened her and she ran away to her [teacher]’s house and called her [Aunt A].
·In relation to information (outlined to the applicant in accordance with s.424AA procedure) that the applicant’s claim in relation to marriage arrangement that no ‘bride price’ had been paid but that her witness told the Tribunal that a ‘bride price’ or ‘shell money’ had been paid, the applicant was offered but did not seek additional time to respond and told the Tribunal that her Aunt was confused about the ‘bride price’ and the engagement because in her culture, at the time of engagement, something is brought to offer but it is not a ‘bride price’ because it was an engagement, not the marriage and the boy’s family would bring something to pay.
·In relation to information (outlined to the applicant in accordance with s.424AA procedure) that the applicant’s claim in relation to when she was arranged to be married was inconsistent given she told the Tribunal that she was arranged to be married when she was working at [Organisation 1] in 2013 but that her witness told the Tribunal that the arrangement was in October [2012], the applicant was offered but did not seek additional time to respond and told the Tribunal that when the Tribunal described to her the places she worked, she was not clear on dates and chose the place she was working at the time and she forgot the date of her engagement. The Tribunal noted that the timing of her employment was based on what she had put in her protection visa application. The applicant then said that her Aunt forgot the year and it should be [2012].
·In relation to information (outlined to the applicant in accordance with s.424AA procedure) that the applicant’s claim she was beaten by her family was inconsistent given she had not previously made this claim but had told the Tribunal that her relatives beat her after she was living with her fiancé and they found out she didn’t like him; that they beat her to force her to go and live with her fiancé; and her witness had told the Tribunal that the only time a relative had been violent toward her was when she had stayed out after dark, the applicant was offered but did not seek additional time to respond and told the Tribunal that she thinks her Aunt forgot the other times but actually, her cousin brothers beat her to force her to marry the boy.
·The Tribunal also noted that the applicant’s protection visa application, which she had told the Tribunal was true and correct, stated that her family members included[siblings and extended family], a daughter [and] that she was in a de facto relationship with [Mr B] and she stated that she had been in a de facto relationship since October 2011. The applicant said that she was stressed and under pressure and she did not remember some things and she hurriedly did her application before her visa ran out as she did not want to over-stay. The applicant said that her cousins and brothers live all together and she treats them as sisters and brothers because it is a small country. The applicant said that the one she calls her daughter, in her culture, she would treat a cousin as her own daughter and view her as her child. She said it was her mistake, this was an adopted girl and in relation to the girl’s surname being ‘[surname]’ (consistent with the applicant), the applicant said it is a family name only.
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 herself 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 other than the birth of her child in [2017].
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, contradictory and unconvincing. There were a number of inconsistencies in her evidence and her evidence appeared to evolve throughout the course of the Tribunal hearing which raises issues in relation to the veracity and genuineness of her claims. 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 forced into an arranged marriage or engagement against her will, that she was ever beaten by a fiancé or by her family members in relation to an arranged marriage or that she faces any risk of harm from her ‘fiancé’, her family or any other family upon return to the Solomon Islands.
The applicant told the Tribunal that her protection visa application was true and correct and she was satisfied that it was accurate and complete. When provided with an opportunity to make any changes to her claims, the applicant told the Tribunal that the only change in her circumstances was that she had recently had a baby.
The applicant’s protection visa application states, amongst other things, that from 2008-2015, she lived in [City 1]. She lived in two different addresses, including from 2008-2010 in [the west of City 1] and from 2011-2015 at [City 1 Central]. The applicant also states in her application that she was in a de facto relationship from [October] 2011. The applicant listed her family members in the Solomon Islands as including [sibling] and her de facto, [Mr B] who was living in [City 1]. The applicant also stated that she had a daughter in the Solomon Islands and the contact details for her daughter are care of her de facto, [Mr B].
During the Tribunal hearing, the applicant’s evidence bore little resemblance to the claims or details she provided in her protection visa application, or to the evidence of her witness, particularly in relation to key aspects of her claims for protection such as her family; the arrangement of her marriage or engagement; the violence she suffered from her fiancé or family members; and the circumstances surrounding her arrival in Australia and her obtaining of a visitor visa.
Central to the applicant’s claim for protection is her family and their role in ‘forcing’ her into an arranged marriage against her will including, as the applicant later claimed, their abuse of her for her lack of willingness to participate in the arranged marriage. The applicant told the Tribunal that her family members consisted of her mother, with whom she had somewhat of an estranged relationship although they were still in contact, her step-father [and] step-brothers that she was not close to. She told the Tribunal that her other relatives were her [Aunt A], her uncle and cousins that she lived with in [City 1] from 2008-2015. The applicant initially told the Tribunal that she had no other relatives and no siblings. However, the applicant later referred to other ‘relatives’ that arranged her marriage and cruel cousins that beat her for not being willing to enter into the arrangement. When discussing her family with the Tribunal, the applicant did not refer to any of the family members she listed in her protection visa application, most notably, her siblings and daughter.
When the Tribunal raised these inconsistencies with the applicant, she said she was stressed and under pressure and she did not remember some things as she hurriedly did her application before her visa ran out as she did not want to over-stay. The applicant also said that her cousins and brothers live all together and she treats them as sisters and brothers because it is a small country. Given the issue is the applicant’s failure to mention her close family members and her conflicting evidence regarding ‘other relatives’ during the Tribunal hearing, the Tribunal does not accept that these issues relate to her completion of her protection visa application.
Similarly, central to the applicant’s claim for protection is the arrangement of her marriage that she claims she was forced into. When the Tribunal discussed this claim with the applicant, she initially told the Tribunal that she could not remember when the arrangement took place. The Tribunal acknowledged that at times it can be difficult to remember exact dates or locations but given the arrangement of the marriage is central to her claims, the Tribunal asked the applicant if she was working at a particular job at the time or whether it occurred while she was still studying. The applicant then said that it was when she was working at [Organisation 1]. On a number of occasions the Tribunal confirmed the details of her employment at [Organisation 1] with the applicant, as set out in her protection visa application which states that this was during 2013. However, the evidence of her witness, [Aunt A], was that the arrangement occurred in October 2012 which is when the applicant states that she was still studying. When the Tribunal raised this inconsistency with the applicant, the applicant initially confirmed her earlier evidence to the Tribunal that because she could not remember dates, she ‘chose’ the place she was working at the time. When the Tribunal noted that the time she worked at [Organisation 1], as set out in her protection visa application was May 2013 to February 2014, the applicant then said that her Aunt’s timing was correct and it was October 2012.
In relation to how the marriage was arranged and by whom, the applicant and her witness provided a variety of accounts, including that it was arranged when the applicant’s distant relatives came from Malaita to ask for her; that her fiancé’s parents came to ask for her because her distant relatives were in [City 1] to sell [goods]; and, according to her witness, that her uncle, the witness’ husband, and her fiancé’s parents arranged the marriage.
When the Tribunal raised these inconsistencies with the applicant, she provided another account that her uncle had made the arrangement at his house at the time her relatives arrived and her fiancé’s parents came to her [Aunt A’s] house and they asked for the applicant to be betrothed and married. The applicant said that her relatives that had come for the [goods] sale then forced her to marry the boy against her wishes. The applicant and her witness also provided different accounts in relation to the payment of a ‘bride price’.
The Tribunal also notes that the applicant raised a new claim that her relatives were also violent towards her. Initially, the applicant said that they beat her when they found out she did not like her fiancé. When the Tribunal questioned how they did that if they had returned to Malaita, the applicant then said that when she did not want to be forced into the marriage and go and live with her fiancé, they beat her. However, the applicant’s witness told the Tribunal that the only time she was aware of the applicant’s relatives being violent toward the applicant was in 2013 when a cruel cousin beat her [because] she was not allowed to come home after dark. When the Tribunal raised these inconsistencies with the applicant, she told the Tribunal that her Aunt had forgotten the other times she was beaten. The Tribunal does not accept that the applicant’s Aunt, whom she claimed was aware of the marriage arrangement given it is claimed to have taken place at her house, and given the applicant and her witness told the Tribunal that the applicant lived with her Aunt from 2008-2015 would have ‘forgotten’ the other times she was beaten.
In relation to the applicant’s fiancé whom she claims beat her and now wants to kill her given she ran away and has a child to another man, the Tribunal notes that the applicant’s evidence was vague in relation to her fiancé’s claimed treatment of her. The applicant consistently referred to an incident with her fiancé where he tried to stab her and she ran away to her [teacher]’s house but otherwise, the applicant said she was consistently beaten by him. After telling the Tribunal that she lived with her Aunt from 2008-2015, the applicant also told the Tribunal that she was forced to live with her fiancé after the marriage arrangement. When the Tribunal questioned the applicant about this inconsistency, the applicant told the Tribunal that she could “come and go” from her fiancé’s house and that it was her culture that once arranged to be married, she would be allowed to go and remain in her family house and vice versa.. However, the applicant’s explanation appears to contradict her claims that she was ‘forced’ to live with her fiancé if she was able to “come and go”.
When the Tribunal asked the applicant about the incident where she claimed she was hospitalised [in] Malaita, the applicant claimed that she was taken to [the hospital] after her fiancé beat her in 2014. The applicant said that the hospital has her records but she has not obtained them and cannot obtain them because it is hard to find someone to go to the hospital to collect the report; she cannot call the hospital because she does not have the telephone details; she tried to search on the internet but the telephone number is not available; it is difficult for anyone to follow up on her requests because they are busy and all her relatives want her to marry [Mr A] so none would want to go to [the] hospital to collect the records. The applicant also said that she did not ask her [Aunt A] to assist her because she was under pressure.
In these circumstances, the Tribunal does not accept the applicant’s explanation for the lack of supporting documentation of her claims. The Tribunal notes that the applicant claimed to have only three days to collect all her evidence for her protection visa application. However, the Tribunal does not accept this explanation given the applicant also told the Tribunal that her intention when coming to Australia on both occasions was to ‘escape’. She returned to the Solomon Islands for a period of almost six months before returning to Australia, providing ample time to gather any necessary evidence. The applicant was also in Australia the second time for more than two months before lodging her protection visa application and therefore, she had more than three days in which to lodge her application. In addition, the applicant lodged her application [in] January 2016 which is some twenty-one months ago which is again, ample time to obtain any relevant evidence, particularly when she told the Tribunal that she is still in contact with family members who can assist her, including her aunt who gave evidence to the Tribunal. The Tribunal also notes that a simple search of the internet provides the website of the [hospital] in Malaita and its telephone number.
The Tribunal also notes that the applicant claimed that she received threats via Messenger as recently as August 2017 and does not accept that the applicant would not think those threats were relevant to the Tribunal to support her application for protection if those threats were received given the applicant has provided other documentation she considers support her claims.
The Tribunal has had regard to the statements from [Witness 1] dated [in] February 2016 and [Witness 2] dated [in] February 2016 and notes that they largely detail information relayed to them by the applicant. In any case, in light of the Tribunal’s findings outlined above, the Tribunal places appropriate weight on this evidence.
Given the various significant inconsistencies in the applicant’s claims regarding her family, their role in the arrangement of any marriage, the timing and process of the arrangement of any marriage, the claims regarding violence from the applicant’s family, and the lack of evidence to support the applicant’s claims of abuse and threats from her fiancé the Tribunal does not accept any of these claims as genuine and finds that the applicant fabricated these claims for the purposes of her protection visa application.
Contributing to the Tribunal’s findings is the fact that the applicant did not apply for a protection visa for more approximately one year after her first arrival in Australia and more around three years after she claims to have been forced into a marriage and beaten. On the one hand, the applicant claimed to have left the Solomon Islands to ‘escape’ the treatment of her fiancé but then returned to the Solomon Islands because she thought he might have ‘changed’. The applicant returned to the Solomon Islands and stayed for almost six months despite having a valid visa to return to Australia and claiming that her fiancé began beating her again after she had been back for one week. Once the applicant returned to Australia in October 2015, it was another two and a half months before she applied for protection and just prior to the expiry of her visitor visa. 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 in January 2015 or her return to Australia in October 2015 and well before her visitor visa expiry in January 2016.
In addition, the Tribunal does not accept the applicant’s explanation that she was not aware of protection visas and her friends did not assist her much because they had not gone through the process. This explanation contradicts the applicant’s claims to have come to Australia to ‘escape’ (including, as she claimed, to have gone to such lengths as to falsely obtain a visitor visa through a corrupt official) and therefore, expects that the applicant would have made enquires upon arrival, particularly on her second visit about her options to remain in Australia.

Of relevance to the Tribunal is that the applicant’s visitor visa application was organised by electronic application by the Solomon Islands Government where she was listed as [an occupation]. These details directly contradict the information provided by the applicant in her protection visa application. The Tribunal does not accept the applicant’s explanation that she paid money to a corrupt government official for this visa to be obtained, particularly as the applicant told the Tribunal that the government official asked her to go and collect the forms and he told her he would fill them in himself. The applicant’s visitor visa application was completed electronically.
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.
It follows that the Tribunal does not accept that the applicant has been in any way harmed by her family in the past; that the applicant has been threatened by her fiancé or her fiancé’s family; or that she faces a real chance of serious harm or a real risk of significant harm if she returns to the Solomon Islands.
For the sake of completeness, and given the Tribunal’s findings that the applicant does not face any risk of harm from a former fiancé, her family or her fiancé’s family or anyone else, it follows that the Tribunal does not accept that the applicant’s [child] faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future.
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 2082

20 October 2017

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing