1619942 (Refugee)

1619942 (Refugee) [2018] AATA 2072 (4 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619942
COUNTRY OF REFERENCE:                  Solomon Islands
MEMBER:Michael Hawkins
DATE:4 June 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 June 2018 at 10:55am

CATCHWORDS
Refugee – Protection visa – Solomon Islands – Violated tribal customs – Relationship with a woman from a different ethnic background – Paid compensation to family – Adverse findings of the Department – Bogus documentation – Did not experience any harm in the Solomon Islands –
Regular and frequent visitor to Australia – Delay in applying for protection – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310
SZFDV v MIAC (2007) 233 CLR 51
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Solomon Islands, applied for the visa on 3 December 2015. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
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.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
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 issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a [age] year old man from [Town 1], Solomon Islands.
The applicant is of the Christian faith, is of Melanesian ethnicity, and speaks Pidgin English and English.
The applicant had been in a de facto relationship from 2005 to 2011. He had [children] from that relationship. The applicant has [a child] from an earlier relationship. His mother is deceased and his father, [brothers] and three of his [sisters], [and children] live in the Solomon Islands.
The applicant completed his Primary and Secondary School education in the Solomon Islands from January [year] to November [year].
The applicant had commenced various diplomas and certificates in [Town 1] from January 1990 to November 1991 and [an Australian] University from January 1992 to November 1995 and again in 2011.
The applicant stated in his application form that he has worked on and off from 1997 to June 2015 in various roles in [certain sectors] within [various] industries. He most recently worked within [an international] programme in an NGO until June 2015. All positions have been in the Solomon Islands. On his own admission he had a few “gap years” in between his various roles.
The applicant has lived in [Town 1] from October 1995 to October 2015, but for an eight month period in 2011 when he lived in [Australia]. He lived in [Suburb 1], [Town 1] from October 2013 to October 2015.
The applicant arrived most recently in Australia on 11 October 2015, under Passport [number] issued [date] 2010 and expiring [date] 2020 pursuant to a subclass FA/600 (Business Visitor) visa granted on 2 April 2015 and expiring 11 January 2016.
The applicant has been a regular and frequent visitor to Australia since January 1991. Since then, he has entered Australia some 23 additional times. He generally used Tourist Visas but has also had granted to him Short Stay Business visas and has applied for TU-576 (AusAID/Defence Sector) and TU-573 Student visas, each of which was refused. On 23 February 2011 he was granted a TU-573 Student Visa which expired on 30 November 2011.
The applicant applied for a protection visa on 3 December 2015.
The applicant did attend an interview with the delegate, but did not provide additional information in support of his claims prior to the delegate decision or this hearing.
Claims:
The applicant claims that he did not experience any harm in the Solomon Islands prior to his departure to Australia.
The applicant claims that he entered a love relationship with a woman from a different ethnic background (Malaita). This caused a conflict with her relatives who disapproved of their relationship because, in their view, it violated their tribal customs.
The applicant claims he undertook steps to resolve the conflict and paid compensation to his girlfriend's male family members. Other members of her family remained however dissatisfied and demanded further disproportional compensations. They threatened to bash or even kill the applicant if he failed to meet their demands.
The applicant claims he had to move to another part of [Town 1] and bring his own family to 'protected housing' to avoid harm. His persecutors quickly discovered his new address. [Town 1] is a small place and does not offer sufficient relocation options. He still encountered his persecutors on the streets on a regular basis.
The applicant claims custom in Melanesia is more important than law and followed by most people. The hostility from his girlfriend's male relatives was in part a legacy of violent clashes between the local inhabitants of [Town 1] and Malaitan migrants back in 1999-2003, known as 'tensions'.
The applicant claims he fled the Solomon Islands leaving behind a well-paid job to avoid risk of harm. After his departure, his girlfriend's relatives started harassing and threatening his family and friends because the first could ill afford putting this matter to rest as it would make them look weak and unconcerned with the 'honour' of their tribe. People in similar situations were chopped up with machetes and their body parts were fed to crocodiles or sharks.
The applicant claims that local police have no capacity to prevent such crimes. Reports of crime or appeals for help are often ignored by police or heeded only if the victim has paid a bribe.
The applicant claims he is scared to go back to the Solomon Islands as his life is in danger because of threats he has received from his former girlfriend’s family.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application forms completed and signed on 20 October 2015, lodged on 3 December 2015 (“visa application”);
·The applicant’s identity documents being a certified copy of passport;
·The protection visa decision record (‘delegate’s decision record’) of 1 November 2016;
·The review application form which did include a copy of the delegate’s decision record;
·Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing.
Country of reference / receiving country
The applicant claims to be a Solomon Islander national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Solomon Islands is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
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).
Hearing:
The applicant attended the hearing on 15 May 2018. He was not represented. The hearing was assisted by an interpreter in the Pidgin and English languages.
The Tribunal asked the applicant about the completion of his Protection Visa application forms. The applicant said he completed the forms himself and he signed them himself.
The Tribunal read to the applicant his claims as set out in paragraphs 24 to 31 above. The Tribunal asked the applicant if the claims as stated were accurate. He said they were.
The Tribunal asked the applicant a couple of times why he left Solomon Islands. The applicant said he came to Australia regularly for holidays as he worked for [a certain company] and received cheap tickets. The applicant said he loves Australia. The Tribunal asked the applicant why he had come to Australia most recently in October 2015. The applicant responded by discussing his relationship with his most recent girlfriend.
The applicant then proceeded to tell the Tribunal about his relationship with his former de facto. He stated there were no issues with his former de facto, notwithstanding the affairs she had had when they were together, and the pregnancies and the death of [a child]. He explained how he did not accept compensation from his former de facto’s new partner and family. He also explained that he had custody of his [children] from 2011 until 2015 when he gave them back to their mother.
The applicant was at pains to explain that he was a single man when he met his new girlfriend in 2012. He was also at pains to state that they were not traditional boy/girlfriend. They were not partners. They saw each other when in the company of groups and were drinking mates. They attended clubs and pubs together. The girlfriend lived just a few houses down the road from his brother’s house, where the applicant was living.
The applicant said it was not long after they met in 2012 that the girlfriend’s brother and some cousins approached him and said words to the effect that he should be warned that he had been seen in public with the girlfriend. The applicant thought that was an off-handed remark and didn’t think too much about it. Sometime later, though he can’t remember when (but he does recall he was sitting under a tree in [Suburb 1] – the Tribunal suggesting that it must have been after 2013 to which the applicant agreed), the family of the girlfriend made a second approach to him, this time demanding compensation, saying they had been together for a while and asking him of his motives towards the girlfriend.
The applicant thought it was strange and wondered why such an approach was made. The applicant stated that it was at about this time that he knew they had no future as partners, only as mates. He wasn’t sure if the girlfriend had another boyfriend. Further, the applicant explained that he had concerns about the Malaita people generally. He said they made him nervous. They were of a different tribe. This was also part of the reason he didn’t wish to marry the girlfriend. He said they were never engaged. He said the girlfriend tended to go out with others to parties. He called her a friend with benefits.
The applicant stated that even though they weren’t getting married, he nevertheless paid compensation to the girlfriend’s brother and cousins. He can’t recall how much he paid, but he agreed that it settled the demands made by the brother. He confirmed that he had never been harmed by the brother or cousins, and for that matter had not been threatened with violence, they just warned him that he should do the right thing by the girlfriend.
The applicant said that it was after he had paid compensation to the brother that other relatives came forward also wanting to be paid. The Tribunal asked what family members they were. He said he couldn’t be sure.
The Tribunal noted that the applicant was still friendly with the girlfriend, even after her brother had been paid compensation. He agreed. He said they still went to nightclubs and pubs together.
The Tribunal asked the applicant about the demands he was receiving from the new family members and in what circumstances they were made. He said they were generally made while everyone was heavily intoxicated and at nightclubs. The Tribunal asked whether violence was ever threatened. The applicant said yes, sometimes. The Tribunal confirmed again that he had never been harmed by any family members. He agreed.
The Tribunal asked the applicant about his residential moves that he claimed to have made. Why did he move? The applicant said he moved to an uncle’s house in another suburb. He had decided not to keep custody of his [children] and returned them to their mother. The Tribunal asked when he made this move. He said at the end of 2014. He was still working with the NGO. The Tribunal asked again why he had moved. Was there a particular incident or threat that made him move at that time. He said he needed to get away. He said he was troubled by stories he had heard of people disappearing in the Solomon Islands at the hands of the Malaita people. He said he was also troubled by memories of a distant relative who, a long time ago (he couldn’t remember when), who was married to a Malaita girl, was also found dead. This memory stayed with the applicant.
The Tribunal confirmed that he wasn’t thinking of marrying the girlfriend. He said he was not.
The Tribunal discussed with the applicant that it seemed to it that the applicant didn’t really have any actual fear of any harm from the girlfriend, her family, or from any threat from any of them. He seemed to have a more generalised fear based on his distrust of the Malaita people and the stories he had heard about them and the memory of his relative. He agreed that was the case.
The Tribunal asked whether the move to his uncle’s house made life easier for him. He said it did until everyone worked out where he was. He repeated that [Town 1] is a very small place and everyone knows everyone. The Tribunal asked what had happened. He said that the girlfriend contacted him on his mobile and they agreed to meet and kept seeing each other. He told the girlfriend where he lived. He said that the girlfriend thought it was strange that he was living away from her in [Suburb 1].

The applicant also said that he became aware of people asking for him at work. Asked why they were asking, he said he wasn’t sure why. He said he bumped into relatives on the girlfriend on the street and they would say things to him like “you know the deal”. However he said that no further monies were paid.
The Tribunal asked the applicant about going to the police. The applicant said that the police wouldn’t have been able to help him. The Tribunal asked the applicant what it was that he would have said to the police – what would he have complained about. The applicant said that was the point – he had nothing specific to complain about.
The Tribunal asked the applicant why it was that he came to Australia on 11 October 2015. What was happening around that time to make him want to come to Australia that day, instead of say, a month earlier or a month later? The applicant said he was sick of the situation and wanted a change.
The Tribunal advised the applicant that there were a number of issues that it was concerned about.
The Tribunal noted that the applicant had left his job at the NGO in June 2015, four months before he came to Australia. This was inconsistent with his claim that he “fled the Solomon Islands leaving behind a well-paid job to avoid risk of harm”.
The applicant stated that he had resigned from his job. He said that his girlfriend would often say to him that he “should stay home today” instead of going to work. He said it made things difficult. The Tribunal asked whether he had been fired because of that – taking too many days off. He said no, that he had resigned as he was dissatisfied with the job.
The Tribunal noted that the applicant claimed in evidence that he had moved address in December 2014 and in his written claims he stated that he had to move to another part of [Town 1]. The Tribunal discussed with the applicant that he had stated in his written application form that he had lived at the same address in [Suburb 1] from October 2013 to October 2015. It made no reference to his change of address in 2014. He couldn’t think why he hadn’t put that in the form.
The Tribunal noted that he was granted a business visitor visa on 2 April 2015 but he didn’t leave until October 2015. Why was there such a delay, especially if it was the case that he feared such harm? The applicant said he wasn’t sure, that he can’t think why. Then the applicant remembered that he needed money and couldn’t travel immediately. The Tribunal noted again that he was still working until the end of June. The applicant did not reply.
The Tribunal referred to the letters of support that the applicant had obtained in support of his claims. The Tribunal asked the applicant whether he had read the delegate’s decision as the delegate had made some very adverse findings about the letters of support. The delegate found the letters to be falsified documents and gave them no weight at all. The Tribunal asked the applicant what he thought of those findings. The applicant said he didn’t bribe anyone for the letters. He said he approached the people himself. The Tribunal asked why he obtained those letters, noting, as the delegate had, that they seemed to have certain shortcomings in that:
·both referred to “reports that have been made to the police” when it was clear in both his written claims and his evidence in this hearing that he had not ever gone to the police;
·the letter from the Magistrates Court was not dated and did not have the title or position of the person signing the letter;
·there appeared to be two sets of original letters;
·the seals appeared to be photocopied;
·an inconsistency in the date of one of them that would be discussed shortly.
The applicant said that he obtained the letters because he had not been to the police and had no evidence of the issues that he had with the girlfriend’s family. He said he wanted evidence of his situation. The Tribunal noted that it was odd that two people would write letters based on what he told them.
The Tribunal noted that the applicant arrived in Australia on 11 October 2015 but did not lodge his protection visa application until 3 December 2015. The Tribunal noted that his visa was due to expire on 11 January 2016. The Tribunal also noted that the applicant’s protection visa application was signed on 20 October 2015. The Tribunal asked why there was such a delay, again noting that such a delay might give the Tribunal cause to consider that his claims may not be genuine. The applicant said that was a good question, and he couldn’t explain why there was a delay. He said that maybe he was still working out what to do. The Tribunal noted that the applicant had had significant experience with visas, having held many and applied for more that had not been granted.
The Tribunal explained to the applicant that it had concerns about the evidence that it had given the delegate and the evidence he had given the Tribunal. In a nutshell, he had told the delegate that he had met the girlfriend in June 2015, had become intimate with her within a couple of weeks, received threats from the family sometime later, paid them $1000 which bought some peace, but then other family members found out about the payment and wanted more money. All of that happened within a window of four months.
Hence the delegate’s issue with the letter from the Police Inspector that was dated 25 May 2015 – a date that preceded his actual meeting of the girlfriend in June 2015.
The Tribunal stated that it was troubled by these inconsistencies, as it put the Tribunal into a position of needing to decide which story to believe, or whether to believe any of them at all.
The Tribunal invited the applicant to explain the inconsistencies. The applicant said that the delegate kept pushing him for dates so he would tell him what he needed to hear. He said he was intimidated by the delegate. The Tribunal told the applicant that it had listened to the interview and that it didn’t appear to it that the delegate was being intimidatory. The applicant said he felt he was and wasn’t able to tell his full story, as the Tribunal had allowed him to do. The applicant felt that the delegate was making accusations about the letters that he had obtained, and that as a result it made the applicant feel defensive and not believed.
The Tribunal asked the applicant whether he knew the Police Inspector or the lady from the Magistrates Court. He said no, not really.
The Tribunal reminded the applicant of the requirements of the Act, the definitions of refugee and complementary protection as discussed during the preliminaries to this hearing. The Tribunal read them back. It discussed with the applicant that the Tribunal had to be satisfied that there was a real risk that the applicant would suffer serious or significant harm. The Tribunal explained that it was having trouble seeing that from the evidence provided. It appeared to the Tribunal that the applicant had no real fear of any harm or death, that it couldn’t see any risk to the applicant at all. It appeared to the Tribunal that the applicant was just sick of his situation, he was unemployed, he had given his [children] back to his ex-de facto, he was in a relationship that he wanted to get out of, she had family members asking for money, that he had been to Australia on many occasions, 24 in fact, he liked Australia, he has many happy memories of times he has been here, he had a current visa to travel here, and that is why he now found himself in Australia. The applicant said he understood how the Tribunal could see that.
The Tribunal asked the applicant what he would do if he had to go back to the Solomon Islands. He said he would go back, that nothing may happen if he goes back, but he said that something could happen in the future, God only knows.
The Tribunal noted that even though he had had some gap years, he had generally always found employment. The applicant agreed. The Tribunal asked the applicant about his health. The applicant said he had been diagnosed with Diabetes Type 2 since he had been in Australia. He could get medicine here. The Tribunal suggested that he could be treated for Type 2 in the Solomon Islands too. He agreed, but said it would not be like here.
The Tribunal discussed country information with the applicant sourced from a World Bank Report.
Country information[1] suggests that premarital encounters (consensual or otherwise) often precipitate threats and violence in almost all parts of Solomon Islands. In Malaita province, where there are strict kastom rules surrounding relationships between men and women, premarital encounters ranked as the third or fourth most common cause of community disputation (usually behind substance abuse and land-related disputes). Violation frequently results in an immediate demand for compensation; usually made by the male relatives, especially brothers, of the woman who is deemed to have been affronted, with a threat of consequent violence should payment not be forthcoming. At the local level, disputants call upon three types of justice systems to resolve and mediate their disputes: the kastom system, state institutions, and the church. The term kastom is generally used to refer to the social norms and practices that make up local approaches to dispute management and everyday social regulation in communities. These norms and practices derive their legitimacy from a claim to some form of "customary" or "traditional" authority exercised by local "chiefs," both individually and collectively, rather than from the state. There is no legislative basis for kastom dispute resolution, other than the provision of the Local Courts Act, which requires customary land disputes to be referred first to chiefs to be dealt with according to "traditional means." The /custom system will often be called on to deal with social and familial problems, especially when disputes and grievances revolve around the payment of bride price, involve instances of adultery, or relate to the payment of compensation. In these cases, the kastom system is usually not a formally constituted committee of chiefs as has been described above. Rather, it will typically involve senior men (and sometimes women) with a connection to the parties, who will mediate the problem, drawing on both kastom and Christian beliefs and frequently working with religious leaders.
[1] Justice delivered locally: systems, challenges, and innovations in Solomon Islands", World Bank, 01 August 2013, CIS36DEOBB2040
The Tribunal observed that there appeared to be a very organised customary process for resolving disputes and situations such as what he found himself in. Why did he not avail himself of that? Why not use the local kastom to resolve his issues. The applicant said that was a good question. He explained that kastom comes with a whole ceremony and rituals. It requires a large function, meals, rituals and he didn’t want to do it that way. He said he had already paid once and didn’t want to do it again. He said in any event, he didn’t want to marry, so there was no need to pay anything. The Tribunal persisted, and suggested that he could actually fix his problem by adopting the local customs. He acknowledged he could but didn’t want to.
The Tribunal asked if there was anything else the applicant wanted to add. He said that he was not afraid to go back, he was just worried about his children if anything did happen to him.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal has its reservations about the applicant’s claims. The Tribunal accepts that the applicant wishes to stay in Australia to make a future for himself. He wants to make changes in his life. But the applicant has told the delegate and the Tribunal two conflicting accounts of his experiences in the Solomon Islands in relation to his relationship with his girlfriend. Each account has at its core a relationship, but the account provided to the delegate is a short timeline, whereby they met in June 2015, consummated their relationship within a couple of weeks, he experienced customary demands from her family, he settled them, then received more demands from other members of the family and decided that he is in fear of harm and leaves on 11 October 2015. The account provided to the Tribunal is one of a friendship that has evolved over three years, from meeting at a nightclub in 2012, enjoying each other’s company socially over that time, to what he described as a friendship with benefits, to a relationship that he had tired of and seemed unable to escape. The Tribunal accepts that the applicant was in a relationship with a girlfriend, but his claims as to threats of harm, and fearing harm and fearing for his life are greatly embellished.
The Tribunal further doubts the genuineness of his claims by virtue of the fact that it took the applicant two months from the date of his arrival in Australia in which to lodge his protection claims.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
Again, given the knowledge the applicant had of Australia’s visa processes and the number of times (24) he had been to Australia, causes the Tribunal to doubt the genuineness of his claims. Further, given that his current visa was shortly due to expire, causes the Tribunal to suspect that the applicant applied for a protection visa because he had no other visa options and that his claims have been fabricated to satisfy protection visa criteria.
The Tribunal accepts that the applicant had not suffered any harm in the Solomon Islands before he came to Australia.
The Tribunal was troubled by the starkly conflicting accounts of the relationship given to it and to the delegate, especially as to its duration. This causes the Tribunal to doubt the genuineness of the applicant’s claims
The Tribunal was troubled by the fact that the applicant had a current business visitor visa from April 2015 and did not seek to use it until October 2015. This causes the Tribunal to doubt the genuineness of the applicant’s claims.
The Tribunal had discussed with the applicant that he had left his job at the NGO in June 2015, four months before he came to Australia. The applicant confirmed he had and why he had. This was inconsistent with his claim that he “fled the Solomon Islands leaving behind a well-paid job to avoid risk of harm”. The Tribunal does not accept that when he left the Solomon Islands he left a well-paid job.
The Tribunal had discussed with the applicant his evidence that he had moved address in December 2014 and in his written claims he stated that he had to move to another part of [Town 1]. The Tribunal discussed with the applicant that he had stated in his written application form that he had lived at the same address in [Suburb 1] from October 2013 to October 2015. It made no reference to his change of address in 2014. The Tribunal does not accept that he had to move to any other address or in fact did move to any other address.
The Tribunal had discussed with the applicant the two letters of support he had provided to the Department. It discussed the shortcomings the letters had in that:
·both referred to “reports that have been made to the police” when it was clear in both his written claims and his evidence in this hearing that he had not ever gone to the police;
·the letter from the Magistrates Court was not dated and did not have the title or position of the person signing the letter;
·there appeared to be two sets of original letters.
The Tribunal did not give either letter any weight.
The Tribunal noted its discussion with the applicant about him not having made any complaint to the police. The Tribunal accepts the applicant’s comment that it had nothing to report to the police – he had nothing to complain about.
The Tribunal discussed with the applicant that on the evidence before it, it appeared to the Tribunal that the applicant had no real fear of any harm or death in [Town 1], or the Solomon Islands, that it couldn’t see any risk to the applicant at all. It appeared to the Tribunal that the applicant was just sick of his situation, he was unemployed, he had given his [children] back to his ex-de facto, he was in a relationship that he wanted to get out of, she had family members asking for money, that he had been to Australia on many occasions, 24 in fact, he liked Australia, he has many happy memories of times he has been here, he had a current visa to travel here, and that is why he now found himself in Australia. The applicant offered no resistance to that discussion. Accordingly, the Tribunal makes a finding in these terms.

Furthermore, as discussed with the applicant, country information provides a clear mechanism for resolving disputes between families and tribes according to customary law. The applicant agreed that that process was available to him, but he simply didn’t want to go through it. He didn’t want to be involved in the ceremony and rituals associated with it and, as he said on more than one occasion, he had already paid once, he didn’t want to pay again, especially when he wasn’t going to marry the girl.
The Tribunal acknowledges that the applicant is troubled by stories he has heard about the Malaita people and accepts that a relative of his long ago may have been a victim of the Malaita people, but there has been no evidence presented of his having been harmed in any way by them. Apart from requests for money, and occasional threats made in a state of intoxication, it is those memories that appear to stall him in wanting to make his relationship with the girlfriend more permanent, indeed to terminate that relationship.
Finally, contrary to his claims about his family being threatened, all but one member of his family still live in the Solomon Islands, including his father, [brothers], [sisters], [and children].
The Tribunal acknowledges the applicant’s claim that he suffers from Diabetes Type 2, but accepts that treatment for it is available in the Solomon Islands.
The applicant stated in closing his evidence that he is not afraid to go back to the Solomon Islands, but that he worries for his [children] if anything happened to him. The Tribunal does not accept the applicant’s written claim that he is scared to go back to the Solomon Islands as his life is in danger because of threats he has received from his former girlfriend’s family.
Consequently, the Tribunal finds that that the risk or chance of the applicant being threatened, assaulted or killed in the Solomon Islands in the reasonably foreseeable future is remote. The applicant has identified no other factors which would provide a motivation for him to be assaulted, threatened or harmed if he returned to the Solomon Islands.
The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to the Solomon Islands.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to the Solomon Islands now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to the Solomon Islands. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to the Solomon Islands now or in the reasonably foreseeable future.
The applicant’s claim to complementary protection is essentially the same claim he made in his application for protection. Those claims have failed because the Tribunal did not accept the applicant’s claim that he is scared to go back to the Solomon Islands as his life is in danger because of threats he has received from his former girlfriend’s family. The applicant stated there were no other reasons for him seeking protection.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to the Solomon Islands. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that that 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 that he will suffer significant harm.
Overall conclusion:
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.
Michael Hawkins
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.
…

[2018] AATA 2072

4 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction