1713610 (Refugee)

[2018] AATA 4486

1713610 (Refugee) [2018] AATA 4486 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713610

COUNTRY OF REFERENCE:                  Solomon Islands

MEMBER:Bridget Cullen

DATE:13 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

STATEMENT MADE ON 13 SEPTEMBER 2018 AT 4:47PM

CATCHWORDS
REFUGEE – protection visa – Solomon Islands – particular social group – persons who have had extramarital relationships – demand for compensation – physical assault – effective protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of the Solomon Islands, applied for the visa on 19 August 2015. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s.5H(1) of the Act. The delegate was also not satisfied that the applicant was a person whom Australia had protection obligations as outlined in s36(2)(a) of the Act.

3. The applicant appeared before the Tribunal give evidence and present arguments on 18 April 2018.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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 themselves 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).

4. 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.  

5. 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.

6. ‘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.

7. There are certain circumstances in which there is taken not to be a real risk than an applicant will suffer significant harm in a country. They 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.

8. 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. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and 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.

9. 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

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. The applicant is [an age] year old man from the city of Honiara, province of Guadalcanal, in the Solomon Islands. He is of the Christian faith, Melanesian ethnicity and speaks English, Pidgin and [another language]. He, at the time of application, was unemployed, and has never been married.

3. The Applicant first arrived in Australia in February 2012 on a [temporary] visa, and departed and arrived a further three times on the same visa, before becoming unlawful in February 2013, where he remained so until August 2015, when he lodged this Protection Visa application.

4. The Applicant made the following, surmised claims for protection to the Department:

   ·     The applicant left the Solomon Islands because of threats received by the husband of a woman, [Ms A], he had an affair with in 2012;

   ·     According to his culture, it is unacceptable, wrong and disrespectful to be in an extramarital affair;

   ·     After meeting her several times and developing a love affair, they were discovered by the woman’s mother-in-law and sister-in-law;

   ·     The applicant, ringing the woman, was discovered by the husband after he answered the phone.

   ·     Some months later, the husband came to the applicant’s residence and demanded compensation of money, pigs and Malaitan custom shell money for disrespecting him and his family. The applicant was then assaulted.

   ·     The applicant moved as he could not afford to pay the demanded compensation. He lived with a friend until he was able to organise a flight to Australia. During this time, the applicant’s father and brother were threatened, with the father paying SBD [amount].

   ·     The applicant stayed in Australia for three months, before secretly returning to the Solomon Islands, where within three weeks, was discovered by the husband.

   ·     The applicant was assaulted, and went to [a named] Hospital for treatment.

   ·     The applicant claims he did not report these attacks to the police, as the husband has relatives working for the police.

   ·     The applicant then returned to Australia, and claimed that despite the elapsed time since leaving the Solomon Islands, that cultural traditions meant he will be harmed as he did not pay the compensation

   ·     The applicant claimed he still feared being harassed, harmed or killed by the woman’s husband, [Mr A], brother and relatives.

5. The applicant, though his agent, submitted that he has a well-founded fear of being persecuted for reason of belonging to a member of a particular social group – namely persons who have had extramarital relationships.  He claims that he will be persecuted if he returns to the Solomon Islands, as his culture requires payment by the man who had the affair to the married person’s husband.  As he cannot pay the compensation, the applicant says that he will be persecuted.

6. The applicant’s representative provided the Tribunal with Country Reports on Human Rights Practices for 2016 prepared by the United States Department of State, in conjunction with the review.  These reports indicate that the Solomon Islands is a patriarchal society where discrimination against women remains a significant human rights problem.  The Reports indicate that police corruption was not a problem during the year of the report.  The Report, which is comprehensive in addressing life in the Solomon Islands, and is 18 pages in length, does not at any juncture mention the cultural difficulties that the social class of persons claimed by the applicant – persons who have extramarital affairs – experience.  Self-evidently, it is assumed that persons who have extra-marital affairs are unlikely to be viewed positively by the partners of those with who they have the affair. The Tribunal does not accept, based on the information available to it, that the applicant is part of the social group of persons who have had affairs with married persons in the Solomon Islands and may therefore be exposed to persecution. 

7. Further, the Tribunal does not accept the evidence of the applicant in all but the most basic applications of his claims.  The Tribunal accepts that the applicant is from the Solomon Islands, and that he worked at [a workplace] in [occupation 1].  Beyond this, the Tribunal has serious concerns about the applicant’s evidence, which lacked detail, and did not accord with ordinary common sense.  For reasons that the Tribunal will come to, the applicant lacks credibility, and the Tribunal considers him to have given evidence in an evasive and dishonest manner.

8. The applicant says that [in] January 2012, he met [Ms A] at the [his workplace], where he was working in [occupation 1].  He alleges that [Ms A] was at the [workplace] for [training], as there was a forthcoming [event] that she had some involvement in.  The applicant could not particularise their discussions, and could not remember when he next spoke with [Ms A]. 

9. When pressed to explain how they next came in contact, the applicant says that he asked [Ms A] for her details, and thinks he spoke with her a few days later.  He could not offer any detail about their discussions, except that he was “interested in her”.  Then, he says they just developed a mutual attraction.   He says the extent of the conversation he had with her was that he was interested in her.  He could not identify any actual topics of conversation.  From there, they just began to meet at the [location], and sometimes, at a restaurant.

10. The applicant says that their relationship became intimate in February of 2012. He cannot recall when [Ms A] told him that she was married. After [Ms A’s] husband found out, he called him a “mother fucker,” threatened to kill him, and asked for $[amount] (SBD), 5-live pigs and 3 Malaitan Custom Shell money.  Allegedly, this happened [in] June 2012.  The applicant says he does not know what happened to her after her husband threatened him. 

11. The applicant says that he cannot contact [Ms A] and last spoke to her in May of 2012, when he rang her and her husband answered the phone.

12. Curiously, when the applicant returned his hearing response form to the Tribunal, he asked that the Tribunal obtain evidence from [Ms A], but provided no contact details.  He also requested that the Tribunal obtain evidence from [his] brother, but then provided contact details that did not enable the Tribunal to contact [his brother].   Obviously, the Tribunal cannot contact a witness that it has no contact details for, or non-functional details for.  The Tribunal discussed this with the applicant and his representative.  The Tribunal explained that it could place little weight on all of the statutory declarations signed by various persons, when the Tribunal had no opportunity to speak to the witnesses.  The applicant’s representative acknowledged this, and indicated that he had asked the applicant for telephone numbers, but they were not provided by his client.

13. The applicant says that because he did not pay the compensation demanded of him, that he will be in danger because “it’s the culture”.  The Tribunal asked the applicant why [he] could not tell anyone of [Mr A’s] threats towards him.  In response, the applicant explained that he cannot tell the police, in case [Mr A] is related to the police.

14. Given that the applicant had come to Australia and returned to the Solomon Islands on three occasions following his initial arrival in February of 2012, in the time-frame when these threatening episodes were supposedly happening, the Tribunal queried why the applicant returned.  The applicant says that he went back to the Solomon Islands because there were no threats while he was in Australia. He says that he waited a lengthy period before applying for the protection visa following his arrival in Australia, as he was ill-informed, and did not know that he could.  Considering that the applicant worked in [the workplace] for a 7-year period, the Tribunal does not accept that he would not have understood the concept of a protection visa, and availed himself of it at an earlier juncture were his claims genuine.

15. He says he obtained the Statutory Declaration from [Ms A], via his friend [who] went to the [workplace] that she worked at.  In response to the Tribunal’s question about evidence of [Ms A’s] existence, such as photographs, other documents, anything that established the relationship.  He says that he did not have a camera.  The Tribunal considers that, given the applicant asserts his friend [was] able to locate [Ms A] on one occasion for purposes of providing a statutory declaration, that it is highly suspect that, if she existed, he is unable to contact her again.

16. The applicant says that [Mr A] has not tried to contact him since he arrived in Australia. When the applicant’s father (who has since died) was still alive, the applicant says that [Mr A] tried to talk to his father.  The applicant could not provide any detail about the conversation.  The extent of the applicant’s evidence on this point was that his Dad called him in 2014 and said “not to come back”.

17. The applicant says that [Mr A] could not contact him in Australia, as it is not easy for [Mr A] to locate him here.  The applicant says this is because he is “hard to find”.  The Tribunal asked if it was realistic to assume that [Mr A] was still looking for him, several years later, having not tried particularly hard to locate him in the several years that have passed since 2012.  Given that many persons these days have social media accounts that are public, the Tribunal queried whether the applicant was searchable by social media, and whether [Mr A] might locate him in this way.  The applicant denied having any social media accounts, telling the Tribunal he did not use [specified social media], “just in case they saw my face.” 

18. In order to be sure to afford the applicant procedural fairness, the Tribunal put to him the Tribunal’s understanding of his evidence, namely that, “You don’t have any [specified social media], because that would increase the possibility that they find you?” The applicant responded with, “Yeah, that’s right.” 

19. The Tribunal then logged in to the hearing room computer, and located a [social media] profile that appeared to belong to the applicant, and which was publically accessible.  The Tribunal explained that it was important for the applicant to give straightforward and honest answers, and then showed him the profile.  The profile, which lists the applicant’s current city as [Australian city], also depicted the applicant with his current partner, whom he has partnered with following his arrival in Australia.  The applicant acknowledged that it was his profile, but told the Tribunal he does not use the profile, despite his earlier claiming to have no social media in case he could be located.

20. Following the hearing, on 18 April 2018, the Tribunal offered the applicant the opportunity to respond to the concerns it had in relation to the genuineness of his claims, as he gave oral evidence that he did not have any social media accounts, because of his fear that such an account would identify him and his location.

21. The applicant replied to the Tribunal’s invitation to comment, indicating that “I came to realize that social media could be a possible way for [Mr A], families and relatives to know where about of me. So I decide not to use social media anymore. I stopped using my [social media] account since 2013 for the fact that I don’t trust social media in regard to my safety and security”.

22. The Tribunal does not accept the applicant’s explanation.  Firstly, the [social media] profile pictures him with his current partner, whom he said he had been with for between 2 and 3 years at the time of hearing.  As there is a picture revealing them together, it is readily apparent that he must have used the account at some juncture in the past 2-3 years.  Further, the applicant himself told the Tribunal of his concerns that he could be located and considers his efforts to now retract his earlier evidence to be disingenuous. 

CONCLUSIONS

1. 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).

1. 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). For the same reasons already articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant, by being removed from Australia to the Solomon Islands, would face a real risk that any significant harm will be suffered.

2. 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

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Member B Cullen
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.

…