1712839 (Refugee)

1712839 (Refugee) [2018] AATA 1216 (12 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712839
COUNTRY OF REFERENCE:                  Solomon Islands
MEMBER:Michael Hawkins
DATE:12 March 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 March 2018 at 2:01pm
CATCHWORDS
Refugee – Protection visa – Soloman Islands – Threats – Expired Visa – Credibility
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
Kavun v MIMA [2000] FCA 370
Subramaniam v MIMA (1998) VG310
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 [in] June 2017 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] July 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.
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 [man] from [a] Province of Malaita, Solomon Islands.
The applicant is of the Christian faith, is of Solomon Island ethnicity, and speaks Pidgin English and claims to read and write in English.
The applicant is married and has [children]. His parents and [siblings] live in the Solomon Islands.
The applicant completed his Primary and Secondary School education in the Solomon Islands from [dates].
The applicant completed a certificate in [Course 1] at [college] in [City 1] from [dates].
The applicant stated in his application form that he worked for [Company 1] [in] [an] industry from February 2003 to July 2011.
The applicant lived in [City 1] from October 1999 to December 2011.
The applicant arrived in Australia [in] December 2011, under Passport No, [issued] [2011] and expiring [2021] pursuant to a [visa] granted [in] December 2011 and expiring [March] 2012.
The applicant became an unlawful citizen [in] March 2012.
The applicant applied for a protection visa [in] July 2015.
The applicant did attend an interview with the delegate, and also provided additional information in support of his claims prior to the hearing. The applicant provided a couple of letters from [his] [children] prior to the 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 met his current wife [in] February 2012 and they started dating [in] March 2012. Within days of meeting, her then husband, [Mr A], called the applicant on his phone and verbally abused him.
The applicant claims he moved in with his now wife [in] March 2012.
The applicant claims abusive phone calls continued and he and his now wife applied for and were granted a protection order against [Mr A]. A copy of the Protection Order (valid from [November] 2012 to [October] 2014) was submitted with the Protection Visa Application.
The applicant claims he and his wife married [in] February 2015. A copy of the Marriage Certificate was submitted with the Protection Visa Application.
The applicant claims that [in] February 2015 he received a call from his sister in the Solomon Islands that their parent’s house got burnt. A week after that the applicant’s father told him that it was [Mr A]’s retaliation for him marrying his ex-wife.
The applicant claims he is scared to go back to the Solomon Islands as his life is in danger because of death threats he has received from [Mr A].
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application forms completed and signed [in] May 2015, lodged [in] July 2015 (“visa application”);
·The applicant’s identity documents being a certified copy of passport;
·The protection visa decision record (‘delegate’s decision record’) of [June] 2017;
·The review application form which did not 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 26 February 2018. He was 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. A friend helped him with English translation.
The Tribunal asked the applicant why he left Solomon Islands. The applicant said he came to Australia for a holiday. He intended to stay for three months. He first went to [one town] and then ended up in [Town 1].
The Tribunal read to the applicant his claims as set out in paragraphs 21 to 27 above. The Tribunal asked the applicant if the claims as stated were accurate. He said they were.
The Tribunal noted that the applicant arrived in Australia [in] December 2011, and that his visa lapsed [in] March 2012. His claims indicated that he received a threat from his now wife’s ex-husband before [March] 2012. The Tribunal discussed with the applicant that he was an unlawful citizen for well over three years, until he made a protection visa application. The Tribunal asked why he had not presented himself to the Department for advice or assistance. He replied that he met his now wife before his visa expired, and during the course of their meeting and moving in with each other (before his visa expired), he received a threat from her ex-husband. He was scared to go back to the Solomon Islands. He said he couldn’t think of what to do. He said he saw a migration agent in 2015. The agent suggested he get a partner visa, but he couldn’t, as he was unlawful and had no visa. So the agent recommended a protection visa.
The Tribunal expressed its concerns at this. The applicant knew he was unlawful, which might indicate to the Tribunal that he was prepared to breach Australian laws. He was an educated man, his wife worked for [a company], he and his wife had had experience with the police and government in seeking a domestic violence protection order, yet he claimed not to know about his visa options. The Tribunal explained that this might cause it to have concerns about the genuineness of his claims generally. The Tribunal said it would consider this further.
The Tribunal discussed with the applicant his relationship with his wife’s ex-husband. He stated that after his very first date with his now wife, he got a phone call from the ex-husband which was a threat to kill him. Asked how he the ex-husband found out about their date so quickly, he said that word got out in the community about their date. It was a small community of Solomon Islanders at [Town 1]. Asked how [Mr A] (the ex-husband) got the applicant’s phone number, he replied that he must have got it from someone in the community. The Tribunal noted that despite that threat, he still proceeded to move in with his now wife within five days of that first date and threat.
The applicant then stated that he received another threat from [Mr A] when [Mr A] and a group of boys came to the house that he was living in and demanded compensation. He said they had a knife. Asked what the compensation was for, the applicant said it was for taking his wife. His friend, who answered the door, said that the applicant wasn’t home, even though the applicant was hiding in his room. The Tribunal asked how he knew it was [Mr A], and how he knew they had a knife, if he was hiding in a room. He said his friend told him. The applicant then referred the Tribunal to a statement that he had forwarded to the Tribunal before the hearing. The Tribunal considered the statement. It expressed its concern that the statement was dated 12 February 2018 and purported to recount events some six years earlier.
The Tribunal also expressed its concerns at the receipt of this new evidence, noting s.423A of the Act that provided that where evidence is presented at hearing that was not presented before the primary decision was made, then in the absence of a reasonable explanation why it was not so presented, then the Tribunal is to draw an inference unfavourable to the credibility of the evidence.
The Tribunal confirmed this was new evidence. It had not been mentioned previously, either in his written claims or in the interview with the delegate. Asked for an explanation, the applicant said he couldn’t explain why it hadn’t been raised earlier. The Tribunal said it would consider this issue further.
The applicant stated that he then moved into his now wife’s house at [Suburb 1]. Despite it being far from [Town 1], [Mr A] kept calling and threatening both the applicant and his ex-wife. The applicant said he was worried that [Mr A] knew their address.
The applicant’s now wife applied for a Protection Order, which was granted with effect for two years. The applicant was noted on it as an associated person. [Mr A] made no contact with the applicant or his now wife from the time the Protection Order was issued.
The Tribunal noted that the applicant married his wife [in] February [2015]. [Mr A] did not attend or crash the wedding.
The Tribunal asked the applicant whether he had heard from [Mr A] since the making of the Protection Order.
The applicant referred to a [sporting] match at [Town 2] in November 2014. The applicant claimed that [Mr A] knew that the applicant and his wife (though not married at that time) would be at the match. When [Mr A] saw the applicant, he made abusive comments. The applicant said that [Mr A] attempted to approach him, but his boys kept him away. The Tribunal attempted a number of times to have the applicant explain whether [Mr A] attended the match only because he knew the applicant would be there, or did he attend because he was going to watch a [sports] match that his community was involved in. The applicant concluded that [Mr A] only attended the match because he knew the applicant and his family would be there.
The applicant referred to a statement that he had submitted before the hearing. The statement referred to the [sports] match, who was present, and the aggressive conduct of [Mr A], and also a statement that [Mr A] made that his tribal people would hunt him and kill him. The Tribunal considered the statement. It expressed its concern again that the statement was dated 13 February 2018 and purported to recount events some six years earlier. The Tribunal also queried why [Mr A] would make such a statement about his tribal people knowing that the applicant was in Australia. The applicant said it was meant to scare him if he went back to the Solomon Islands.
The Tribunal also expressed its concerns at the receipt of this new evidence, noting s.423A of the Act that provided that where evidence is presented at hearing that was not presented before the primary decision was made, then in the absence of a reasonable explanation why it was not so presented, then the Tribunal is to draw an inference unfavourable to the credibility of the evidence.
The Tribunal confirmed this was new evidence. It had not been mentioned previously, either in his written claims or in the interview with the delegate. Asked for an explanation, the applicant said he thought he had mentioned it earlier to the department. The Tribunal said that it had no record of that and had not heard it mentioned on the recording of the interview. It said it would consider this issue further.
The representative said that the applicant told her about the two incidents in discussions with her, and she had requested the applicant go and get statements from the two witnesses.
The Tribunal asked whether the applicant had heard from [Mr A] again, apart from at the [sports] match. He confirmed that he had not had contact from [Mr A] since then.
The Tribunal discussed with the applicant the circumstances surrounding his marriage to his wife. The Tribunal again confirmed that [Mr A] was not present and had not sought to interfere in it.
The applicant stated that about a week after his marriage, he received a call from his sister who told him that his parent’s house had been destroyed by fire. His sister did not say how it had burned down or whether anyone did it.
Sometime after that, the applicant received a call from his father, who told him that there was a story going around in the village that the fire was retaliation from [Mr A]’s side for the applicant marrying his ex-wife. The applicant claims that he then rang his father back and advised his father to go to the police. He says that his parents contacted the police at the nearest station, but that the phone rang out.
The Tribunal asked the applicant about the activities of his cousin [Mr B]. The applicant stated that [Mr B] reported the incident to police at [City 1]. The Tribunal asked the applicant how far [City 1] was from his village. He said it was about one day’s travel by boat. The Tribunal also asked the applicant how far away was [Mr A]’s tribe’s village from his own village. He said it was a one hour walk. The Tribunal asked the applicant whether [Mr B] had advised him of what the police would do about the complaint. He was told the police would investigate it.
The applicant said he called the police in December 2017 to follow it up. The Tribunal noted that this was some two years later. The police told him they were still to investigate it. The applicant said he called the police again last month. This time he was told that the police had moved offices and that during the move, some files were lost, including the record of the complaint about the fire.
The Tribunal asked the applicant about the status of matters at present. The applicant said that everything was quiet. He had not heard from [Mr A] and nothing was happening at all in his village so far as [Mr A] and his tribe were concerned. But the applicant said that things could happen if [Mr A] asks or goes back to [City 1].
The Tribunal noted a number of articles that the applicant had submitted to it before the hearing. The articles spoke of an attack on a female police officer by [Mr A], that he was very drunk, and that he was imprisoned for the offence. The applicant stated that community talk was that [Mr A] was in immigration detention.
The Tribunal also discussed with the applicant two photos that had been submitted to the department[1]. They were both photos of a timber platform. The applicant stated that the platform was where the family home had been. There was just a timber seat left. He said the home was not a permanent structure. But it was the family home where all of his siblings had been raised. The Tribunal expressed it concerns about the photos. There was not really any evidence of anything having been burnt on the platform, no evidence of any house on it at all. Just a platform. The photos gave no context in terms of supporting his claims. The Tribunal stated that it could not give the photos any weight at all.
[1] CLF[file number] Folios 1 and 2

The Tribunal referred to the Statutory Declaration of [Mr B][2]. It again noted that it was dated some four months after the event. He made some statements about a group of men coming to the village with weapons, threatening the locals, asking about the applicant’s whereabouts and burning the applicant’s house to the ground. The Tribunal asked whether [Mr B] was an actual witness, given that he lived in [City 1]. The applicant said he was not a witness. The Tribunal asked the applicant where [Mr B] got his information from. The applicant assumed he got that from the villagers. The Tribunal noted that [Mr B] referred to the house as belonging to the applicant. The applicant replied that it referred to his family home.
[2] CLF[file number] Folio 8
The Tribunal referred to the documents headed “Police Report”[3]. The Tribunal noted that the document is dated [June] 2015, some four months after the event. The Tribunal notes that two copies of the Report have been provided. One copy is clearly a photocopy. The second document, is identical in all respects but for the addition of a blue stamp over the purported signature of the officer. It is noted that a Justice of the Peace has certified both documents as a true copy of the original download that he had sighted. The Tribunal could not understand why there were two documents, one with a stamp. The applicant could not explain either. He said he just asked for the document. The Tribunal was struck by the peculiar wording on the report – which stated that “police were yet to completely investigate the matter and arrest those responsible to face the full force of the law”. It also noted that the complaint was that “[Mr A]’s associate ….burnt his parents house…” [Mr B]’s statement alleged that it was a group of men.
[3] CLF[file number] Folios 9 and 10
The Tribunal discussed with the applicant that he had previously lived in [City 1] from 1999 until he left for Australia. He was not living in his village. [Mr A]’s tribe was from a village more than a day in travelling time away from [City 1] (one hour walk time from his village). He has not heard from [Mr A] since the purported visit from him at a [sports] game in November 2014. Why could he not go back to [City 1] where he evidently had a good [job]? The applicant replied that [Mr A] has relatives everywhere.
The Tribunal concluded by restating its concerns. It was concerned that the applicant had not applied for a protection visa for some three years after his [visa] had expired and after he had received several threats from his now wife’s ex-husband, whom he then immediately moved in with. It was concerned at the presentation of new evidence that had not been presented to the delegate and for which there was no reasonable explanation. It was concerned that there is no evidence connecting the applicant’s marriage and the fire that destroyed his parent’s home. And it is concerned that the applicant has not heard from [Mr A] in at least three years (if the Tribunal accepts the evidence in relation to the [sports] match) or more than five years (since the Protection Order and if the Tribunal does not accept the evidence about the [sports] match).
The applicant responded by stating that he has a fear of [Mr A]. He says the fear is based on his experience of living in a community and that events could suddenly blow up.
The Tribunal adjourned for a break. Upon resumption, the Tribunal invited the representative to make submissions. The representative asked the Tribunal to note that the original interpreter (at the delegate interview) was a PNG Pidgin interpreter, not a Solomon Islands interpreter. She added that at the delegate interview, the applicant was not given the opportunity to raise issues, being the new evidence to which the Tribunal had taken issue with. She also asked the Tribunal to note that the applicant would have been nervous with the delegate.
The representative asked the Tribunal to note the nature of the Solomon Island community – one in which word spreads fast.
The representative also asked the Tribunal to take notice of the likelihood that [Mr A] was now in immigration detention, that he was sentenced to a term of longer than two years, and that as such, he should fail the character test and likely be deported back to the Solomon Islands.
The representative asked the Tribunal to consider that [Mr A] believes that the applicant took his wife from him. The Tribunal asked the applicant how long his wife and [Mr A] had been separated. He said for some time but wasn’t sure. The Tribunal noted from the articles submitted that as at [June] 2015, he had been married for four years – he had remarried at least as late as [June] 2011.
The representative asked the Tribunal to take notice of [Mr A]’s status within the community. She submitted he was a leader within the community. He used to convene fortnightly or monthly meetings of the community at his [home]. [Mr A]’s [relative] is believed to be the chief of black magic and witchcraft. She stated that the community is in awe and fear of [Mr A] and his [relative], particularly the [relative].
The representative submitted that until [Mr A] went to prison, the community was too frightened to come forward with statements. They are speaking out now believing that [Mr A] won’t find out.
The Tribunal noted that it would seem that the applicant wasn’t so frightened, having married the man’s ex-wife.
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 and to stay with his wife and his [children]. The Tribunal accepts that his [children] and wife no doubt want him to stay. The Tribunal discussed with the applicant the reasons he was unlawful for over three years and why he had not taken steps to regularise his status in Australia. It noted the access he and his wife had had to police and government services, particularly when they applied for and were granted a Protection Order. The applicant’s evasiveness of the visa process causes the Tribunal to doubt the credibility of his claims and have concerns that his claims may have been fabricated.
The Tribunal further doubts the genuineness of his claims by virtue of the fact that it took the applicant over three years from the date of his meeting his now wife and receiving threats from her ex-husband in which to make 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 access he and his wife had had to police and government services, particularly when they applied for and were granted a Protection Order, causes the Tribunal to doubt the genuineness of his claims. Further, given inquiry had been made about a partner visa, and the fact that it was not open to the applicant as he was unlawful, 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 accepts that the applicant met his wife in February 2012 and they began cohabitating in March 2012.
The Tribunal accepts that the wife’s former husband rang the applicant within days of him meeting his wife and verbally abused.
The Tribunal accepts that the ex-husband continued to verbally abuse and harass the applicant and his now wife in the period leading up to them applying for and securing a Protection Order against him.
The Tribunal accepts the marriage certificate provided to the department as evidence supporting their marriage [in] February 2015.
The Tribunal noted the new evidence presented by the applicant in relation to the ex-husband visiting the applicant at his home prior to his cohabitating with his now wife and the evidence in relation to the ex-husband seeing them at a [sports] match at [Town 2] in November 2014. The Tribunal explained the effect of s.423A to the applicant, that in the absence of a reasonable explanation as to why it hadn’t been presented to the delegate, then the Tribunal is to draw an inference unfavourable to the credibility of the evidence.
The Tribunal noted the submission of the representative as to the applicant being nervous, the absence of a Solomon Islands Pidgin interpreter and her claim that the applicant was not able to raise new issues. The Tribunal noted that the applicant was relaxed at the Tribunal, was confident in his responses and spoke mostly in English – that the interpreter was rarely called upon in the hearing. The Tribunal had said that it had listened to the record of interview, and that the applicant was given many opportunities to make his case.
The Tribunal does not accept the applicant’s evidence in relation to incidents that took place at the applicant’s former home and at [Town 2] [sports] field. These were both new pieces of evidence, and as the applicant had not provided any reasonable explanation as to why this evidence had not been presented before, the Tribunal had drawn an inference unfavourable to the credibility of that evidence.
Accordingly, and notwithstanding the applicant’s claim (referenced most recently in paragraph 85 above), the Tribunal accepts that the applicant and his wife have had no contact whatsoever with or from [Mr A] since at least [November] 2012 when they secured a Protection Order against him.
The Tribunal also notes that [Mr A] has been remarried since at least June 2011, and together with the fact that he has not contact them since 2012, the Tribunal is satisfied that [Mr A] has no adverse interest in them any longer. The Tribunal noted the evidence of the applicant that he believes things could just blow up, but he provided no justification for that comment. Similarly with the evidence that the applicant believes he took his wife from [Mr A] – it was clear in evidence that [Mr A] and the applicant’s now wife had been separated and divorced for some time before the applicant became involved with [Mr A]’s former wife and newspaper articles tendered by the applicant suggested that [Mr A] had been remarried since at least June 2011.
The Tribunal considered the evidence tendered to the department and hearing:
·It places no weight on the two photos tendered as evidence of the burnt house. The photos have no context and provide no independent corroboration of a claim that the house was burnt down by [Mr A].
·It places no weight on the statutory Declaration of [Mr B] – he was not a witness to any of the events accounted for. He has relied on either village talk or has taken the account of the applicant in recording the events.
·It places no weight on the documents purporting to be a police record. The implausibility of the content of the document (no investigation yet, but arrests not made), the fact there are multiple copies in inexplicably different forms together with the inconsistencies between the purported record of the complaint from [Mr B] (the fire caused by an associate of [Mr A]) and [Mr B]’s own statement (the fire caused by a group of men) cause the Tribunal to conclude that this document was manufactured.
·It places no weight on the letters of support from his [children] as they are not relevant to his claims. The first letter was incomplete and not signed. The second letter speaks of the strength of the relationship between [one of the children] and the applicant but makes no reference to any threats to the applicant or risk of harm to anyone.
The Tribunal has grave doubts that the applicant’s claim that his family’s house was burnt down as there is no independent evidence corroborating that claim.
Even affording the applicant the benefit of the very considerable doubt that it has about the house being burnt down, the Tribunal does not accept that the applicant’s parent’s house was burnt down as retaliation for the applicant’s marriage to [Mr A]’s ex-wife. The reasons for this finding are as follows:
·[Mr A] had made no threat to the applicant since November 2012.
·[Mr A] had had no contact with the applicant since November 2012.
·[Mr A] and/or his family had had no contact with the applicant’s family at all.
·The applicant’s family still live in the Solomon Islands and have had no issues with [Mr A] or his family or tribe either before or after the alleged incident.
·The applicant has provided no independent evidence of any connection between the burning down of his parent’s house and [Mr A] apart from a statement that that was the talk of the local villagers.
·Notwithstanding the submission of the representative that the nature of the community is to talk and spread stories quickly, the applicant’s claims are at best speculative.
·The applicant’s claims are unsubstantiated.
The applicant has not lived in his village since 1999. He has lived in [City 1] from 1999 to 2011. He has a certificate in [Course 1] and previously worked with [Company 1] for eight years. He has shown resilience to move to Australia on his own and establish himself in Australia. The Tribunal is satisfied that he could move back to [City 1] and support himself.
The representative made a submission that [Mr A] is a community leader and community members tend to fear him. She made the case that he has been in prison on account of a violent crime and was now likely in immigration detention and will likely be deported. The implication in her submission is that if he is deported back to Solomon Islands, and the applicant does not have a protection visa and is also required to return to the Solomon Islands, that [Mr A] may seek out the applicant.
The representative also made a submission about the possibility of, or rumoured belief of, [Mr A]’s father being involved in sorcery and being one who community members are generally afraid of. This is also a new claim and new evidence. It has not been raised in his written claims or during the delegate interview. However, no evidence was produced that [Mr A]’s father has made any threats to the applicant or any of his family at any time. The Tribunal does not accept that the applicant has received any threat from [Mr A]’s father or is in fear of [Mr A]’s father.
The Tribunal, after consideration of this claim, is still persuaded by the fact that [Mr A] has made no threat and has had no contact with the applicant or his wife or his family in more than five years, including after the expiry of the Protection Order in 2014. He did not seek to attend or interrupt their wedding. He has not contacted them at all. He has remarried, he has moved on with his life. He has had no contact with the children of his ex-wife.
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 that the that the applicant or his wife have had any contact whatsoever with or from [Mr A] since at least [November] 2012 when they secured a Protection Order against him, or that the applicant’s parent’s house was burnt down as retaliation for the applicant’s marriage to [Mr A]’s ex-wife, or that [Mr A] has made any threats to, or had contact with, the applicant’s family in the Solomon Islands or that [Mr A]’s [elative] has made any threats to, or had contact with, the applicant or the applicant’s family in the Solomon Islands.
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 1216

12 March 2018

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Immigration

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