1809046 (Refugee)

[2023] AATA 4845

1809046 (Refugee) [2023] AATA 4845 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809046

COUNTRY OF REFERENCE:                   Solomon Islands

MEMBER:Wayne Pennell

DATE:11 December 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 11 December 2023 at 2:14pm

CATCHWORDS
REFUGEE – protection visa – Solomon Island – business owner – disgruntled former clients due to fraudulently obtained funds – claimed defamation by government officials in the media – threatened to be harmed by clients – kidnapped and held for ransom – fabricated evidence to embellish claims – lack of credibility – applicant not a witness if truth – unlawful - non - citizen – significant delay in lodging protection application – effective state protection against persecution or serious harm available – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 423(a), 424(a), 499
Migration Regulations 1994 (Cth), Schedule 2

Cases
Anandaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Zhang Su Rong v Refugee Review Tribunal and 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

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 23 March 2018.

2. The applicant, who claims to be a citizen of the Solomon Islands, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to the Solomon Islands, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]

   [2]The applicant’s application was received by the Department of Home Affairs on 24 August 2015.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision,[5] and in doing so, he declined to provide the Tribunal with a copy of the delegate’s decision. At a later time, pursuant to section 424A of the Act, the Tribunal wrote to him and invited him to comment on or respond to the delegate’s reasoning and findings when refusing his application for a protection visa (‘section 424A invitation’). Details relating to that section 424A invitation are discussed in greater detail later in these Reasons.

   [5]The applicant’s review application was filed with the Tribunal on 3 April 2018.

4. The applicant was also invited to participate in a hearing in regard to his review application scheduled for 1 December 2023. He accepted that invitation and appeared personally at the hearing. The hearing was conducted with the assistance of an interpreter in Solomon Island Pigeon English and the English language.

   CRITERIA FOR A PROTECTION VISA

5. The measures for a protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.

   [6]Migration Act 1958 (Cth), s 36.

   [7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

6. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

   [8]Migration Act1958 (Cth), s 36(2)(a).

7. 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.[9] 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.[10]

   [9]Migration Act1958 (Cth), s 5H(1)(a).

   [10]Migration Act1958 (Cth), s 5H(1)(b).

8. The Act also provides that 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, and 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.[11]

   [11]Migration Act 1958 (Cth), s 5J(1).

9. 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 the Act, which are extracted in the attachment to this decision.[12]

   [12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

10. If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14]

    [13]Migration Act 1958 (Cth), s 36(2)(a).

    [14]Migration Act 1958 (Cth), s 36(2)(aa).

11. 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]

    [15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

12. The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]

    [16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

13. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]

    [17]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

14. The applicant claims to be a citizen of the Solomon Islands and he provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts the applicant’s identity, and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that the Solomon Islands is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[18]

    [18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

15. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[19]

    [19]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

16. In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    MATTERS LEADING UP TO THE REVIEW HEARING

    [20]Migration Act 1958 (Cth), s 499.

    Chronology

17. The applicant has a significant migration history relating to his trips to Australia and being granted various visas. As such, the following chronology is provided:

DATE:	EVENT
[In] Sept 2010	Granted a business (short stay) visa (subclass 456) which was due to expire [in] September 2011.
[In] Sept 2010	Arrived in Australia for the first time.
[In] Sept 2010	Departed Australia and returned to the Solomon Islands.
[In] Dec 2010	Arrived in Australia on his second visit.
[In] Jan 2011	Departed Australia and returned to the Solomon Islands.
[In] Mar 2011	Arrived in Australia for the third time.
[In] June 2011	Departed Australia and returned to the Solomon Islands.
[In] Aug 2011	Arrived in Australia for the fourth time.
[In] Sept 2011	Departed Australia and returned to the Solomon Islands.
[In] Sept 2011	Business (short stay) visa (subclass 456) granted [in] September 2010 expired.
[In] April 2012	Granted a tourist visa (subclass 676) which was due to expire on [in] June 2012.
[In] May 2012	Arrived in Australia for the fifth time.
[In] June 2012	Tourist visa granted on [in] April 2012 expired. Departed Australia and returned to the Solomon Islands.
[In] May 2013	Granted a visitor visa (subclass 600) which was due to expire [in] May 2014.
[In] June 2013	Arrived in Australia for the sixth time.
[In] Sept 2013	Departed Australia and returned to the Solomon Islands.
[In] Dec 2013	Arrived in Australia for the seventh time.
[In] Feb 2014	Departed Australia and returned to the Solomon Islands.
[In] Feb 2014	Arrived in Australia for the eighth time.
[In] May 2014	Visitor visa granted [in] May 2013 expired.
[In] May 2014	Granted a bridging visa C (subclass 030) which was to expire [in] May 2014.
[In] May 2014	Bridging visa C granted [in] May 2014 expired. Granted a visitor visa (subclass 600) which was due to expire [in] August 2014.
[In] Aug 2014	Visitor visa granted [in] May 2014 expired. The applicant was an unlawful non‑citizen for approximately 12 months until granted a new visa.
[In] Aug 2015	Granted a bridging visa E (subclass 050) which was due to expire on [in] August 2015.
[In] Aug 2015	Application for a protection visa (subclass 866) lodged.
[In] Aug 2015	Bridging visa E granted [in] August 2015 expired. Granted a new bridging visa E (subclass 050) which was due to expire [in] September 2015.
[In] Sept 2015	Granted a bridging visa E (subclass 050).
6 Mar 2018	The Department invited the applicant to attend an interview scheduled for 21 March 2018 to discuss his protection visa application and his claims.
21 Mar 2018	The applicant was interviewed by the delegate.
22 Mar 2018	The applicant wrote to the delegate and provided information about his residential history in the Solomon Islands, although it appears that he did not specify the name/s of suburb/towns/province where he resided in the Solomon Islands in the previous 30 years.
23 Mar 2018	Delegate’s decision to refuse the applicant’s application for a protection visa.
3 April 2018	Review application lodged with the Tribunal.

Evidence provided to the Tribunal when lodging review application

1. When the applicant lodged his review application with the Tribunal, he did not provide a copy of the delegate’s decision record. Instead, he provided copies of the following documents as described in his review application:

   (a)Applicant’s statement;

   (b)News article from the [a newpaper], dated [in] December 2012;

   (c)Two letter from [name]Legal Services;

   (d)Solomon Islands Notice of Offence Charged (police notice to appear in court);

   (e)Applicant’s birth certificate;

   (f)Applicant’s Solomon Island passport;

   (g)Applicant’s Solomon Island driver’s licence;

   (h)Supporting letter from his wife;

   (i)Applicant’s employment history; and

   (j)Letter relating to the applicant’s residential status.

   Section 424A invitation to comment on or respond to information

2. Subsequently, on 16 October 2023, the section 424A invitation was dispatched to the applicant via email inviting him to comment on or respond to certain information in respect to his application. That invitation explained:

   I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

3. The section 424A invitation went on to explain to the applicant the particulars of the information and why the delegate was satisfied that he did not meet the definition of a refugee, and why he was not considered to be a person who was owed protection obligations. To assist him, a copy of the delegate’s decision record was enclosed within the email dispatched to him.

4. Explained in the section 424A invitation were the claims he relied upon, and in particular those claims were that he departed the Solomon Islands for Australia to visit his daughter, however since then he has continued to receive threats from some people back in the Solomon Islands. He is not able to return there for fear they might kill him.

5. In the Solomon Islands he operated a [business]called [Business 1]and people paid for his services, however because of a delay in the process, those people requested that he refund to them their money, which he did. He also claimed that at the time these people physically threatened him, and on one occasion he was attacked by them with a knife but managed to escape and hide in the bush. He went on to claim that he engaged a law firm in the Solomon Islands called [name] Legal Services in[City 1]. He provided the Department a letter from his lawyer to verify this.

6. The applicant went on to claim that he fears that these people will kill him because they are still threatening to harm him, although he refunded them their money. He claimed he sought protection from the police in the Solomon Islands but they were only able to protect him for a short period of time. He further claimed that he tried to move to other places in the Solomon Islands but for his and his family’s safety it is not safe for him to relocate in the Solomon Islands. He said that the only way for him to be safe is to stay in Australia where his eldest daughter resides.

7. The section 424A invitation went on to explain to the applicant that in addition to accepting his identity, the delegate accepted the country information within a 2017 United States Department of State report on the Solomon Islands about the functioning police in the Solomon Islands, and that if he needed to do so in the foreseeable future, he would be able to engage a legal representative and report individual perpetrators to the authorities.

8. The applicant was then informed that the delegate was not satisfied that it was a credible claim that he feared harm from two male and two female persons of unknown identity because he refused to refund the money, which these people had already paid, for his [business]service. Nor did the delegate consider it credible that there still exists a dispute between him and his clients from a private business he ceased operating in March 2012; and even if the delegate were to accept the applicant’s claim on face value, the delegate found that it relates to private matters and has no nexus to any part of section 5J of the Act.

9. The section 424A invitation also explained that in addition to making a finding as to whether he meets the criterion of being a refugee as defined in the Act, the delegate also considered whether he would face a real chance of persecution for reasons of his (actual or implied) political opinion and being a member of a particular social group of returnees from other countries.

10. The delegate found that there is no real chance that the applicant would suffer serious harm if he was removed to the Solomon Islands because the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to the Solomon Islands, there is a real risk he will suffer significant harm as outlined in section 36(2)(aa) of the Act. The delegate therefore found that he was not a person in respect of whom Australia has protection obligations as outlined in section 36(2)(aa) of the Act.

11. It was further explained to the applicant in the section 424A invitation that he was invited to give comments on or respond to the above information in writing by 31 October 2023, and if he was unable to respond or comment by then, he could seek an extension of time to do so.

12. He was informed that if the Tribunal did not receive his comments or response within the period allowed, or as extended, the Tribunal may make a decision about his application without taking any further action to obtain his views on the information, and he will lose any entitlement he might otherwise have had under the Act to appear at a hearing to give evidence and present arguments.

13. By 31 October 2023, the applicant had not responded or commented on the information provided to him in the section 424A invitation. However, on 6 November 2023, the Tribunal received an email from him in which he asked for an extension of time to respond as he had only just seen the Tribunal’s email containing the section 424A invitation. The Tribunal advised him that an extension of time was granted until 8 November 2023.

14. On 7 November 2023, the applicant emailed the Tribunal his response or comments on the information contained in the section 424A invitation and said:

    Please see this email for additional information to support the case for[the applicant]. This email is in response to: "INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR [the applicant]"

    In the letter, the reasons addressed for why the application to overturn the decision and ultimately receive a visa was declined are around definitions of a refugee and protection measures. Though in spite of this, we think that [the applicant] may be owed complementary protection obligations by Australia according to s36(2)(aa) of the Migration Act.

    Here is an excerpt from the relevant section:

    "A non-citizen will suffer significant harm if:

    (a) the non-citizen will be arbitrarily deprived of his or her life; or"

    [The applicant]will be in immediate danger if relocated to the Solomon Islands where people will deprive him of his life. He was almost murdered in the days leading up to his escape to Australia. He has since received death threats from these same people in the time he has not been in the country. If accepted on face value, allowing him to return to the country will be akin to a death sentence.

1. From the information contained in the above response, it suggests two things: firstly, that the applicant is owed complementary protection; and secondly, he was almost murdered just prior to leaving the Solomon Islands, and since coming to Australia, he has received death threats from these people. If he returned to the Solomon Islands, it will be akin to a death sentence.

2. Having received his response and comments to the section 424A invitation, on 10 November 2023, the Tribunal invited him to attend a hearing in respect to his review application. That hearing was scheduled for 1 December 2023. The applicant responded and accepted the hearing invitation, and in doing so, he nominated that his daughter was a witness and she would be appearing at the hearing to give evidence to support his application, although the Tribunal notes that neither the applicant nor his daughter provided an affidavit, statement or statutory declaration outlining their evidence.

   EVIDENCE AT THE HEARING

3. At the time of the review hearing, the applicant relied upon a letter he had earlier provided to the Tribunal on 3 April 2018 when he filed his review application. In that letter he explained what he said were his experiences in the Solomon Islands which forced him to seek a protection visa in Australia.

4. He said that the reason why he was seeking the protection visa was because he feared that he would be murdered if he returned to the Solomon Islands. He went on to say that this is because people in the Solomon Islands were trying to kill him because he was defamed by a corrupt official within the Solomon Islands [government department]. He said that in December 2012, this person released a media statement saying that the applicant was not an authorised [person]could not issue licences for the ‘[government project work]’.

5. The Tribunal is aware that the applicant’s description of the ‘[government project work]’ is actually the [Government project work 1], or, as it is more commonly known, the [Government project work 1]. The [Government project work 1] delivers [opportunities] for Pacific and Timor-Leste [individuals], enabling them to develop skills, earn income and support their families back home.[Information deleted].[Information deleted].[Information deleted].[21]

   [footnote deleted].

6. The applicant said that in 2012, he registered his company under the name [Business 1]in the Solomon Islands. His daughter [Ms A]was the administrator, however she has since unfortunately passed away in 2015.

7. He told the Tribunal that it was during one of his many trips to Australia that, in early 2012, he met with [an]agency in Brisbane for the purposes of arranging [certain activities for the][Government project work 1]. He said that he and the Brisbane-based company signed an agreement, however the Tribunal notes that he did not provide evidence of that agreement except for what he said in his oral testimony at the Tribunal hearing.

8. The applicant went on to tell the Tribunal that his company charged clients a non-refundable fee of SBD$200 for the administration of their application process to [be part of the] [Government project work 1]. Initially that administration process involved photocopying and storing the clients’ documents, such as printing passports.

9. By June 2012, the applicant had numerous [Government project work 1] clients who had paid him significant amounts ranging up to SBD$5,000. He provided a list of 28 clients to the Tribunal, but conceded at the hearing that this number may be greater. The applicant said he approached [a government department]in the Solomon Islands and lodged an application to be [an authorised representative] under the [Government project work 1].

10. He claimed that during the waiting period for his application to be processed for approval, he became aware that the [Government project work 1]  coordinator was corrupt because he knew of three [Government project work 1]licence holders who gave the coordinator money so that their licence could be granted without submitting the required documents. The applicant claimed that because of the corruption going on under the[Government project work 1], his application was not approved because he did not give the coordinator corrupt money. The Tribunal finds that this claim is unsupported by any evidence, it is uncorroborated by any other witness, and in the absence of any evidence, the Tribunal does not accept this claim.

11. The applicant then claimed that while he was away on one of his trips to Australia, an unknown person falsely claimed to be working for him. He described this person as a scammer who collected SBD$200 from dozens of people wanting to be enrolled in the[Government project work 1]. He also claimed that this unknown person forged his signature on all the paperwork.

12. The applicant went on to claim that when the coordinator of the [Government project work 1] released information to the media that the applicant was not a [authorised] [person] under the [Government project work 1], this made his situation worse. It is noted by the Tribunal that the applicant had provided to the Tribunal a copy of that news article, and within the article it was suggested that the applicant had collected approximately [an amount] purportedly for [services to another country] and other related expenses.

13. The applicant claimed that this caused all of his clients to accuse him of being a scammer. They then started to ask for their money back and some went to his home and threatened to kill him and his family. Threats were also made to burn down his house and business premises. He claimed that he fled to the bush where he lived for three months, and during that time the landlord where his business was located removed all office equipment and files and threw them away, and then re-leased the premises. For that reason, he does not have any records or business documents or the individual files of all his clients.

14. He claimed that when he hid in the bush, his family were not aware of where he was so they made a missing person’s report to the police. The situation was overwhelming for him regarding the fear he felt from being harmed by his clients and he lived in the bush without shelter, and for days and weeks on end he went without food with only a little bit of water to keep him alive. His health deteriorated and eventually he gave up hiding and came forward to give himself up to the police.

15. He went to a nearby village and contacted his brother who came and collected him and took him back to his house. He said that the police were called and they came to his brother’s house and took him into custody because a former client made a criminal complaint against him. He was held in police custody for three weeks and then went to court. He was represented by a public defender (solicitor) and managed to reach an agreement with the former client.

16. When carefully assessing the evidence about his business, the Tribunal is satisfied that the applicant falsely purported to be [an authorised person]in the Solomon Islands to arrange [for] Solomon Island citizens as part of the [Government project work 1], when in fact he was not. The Tribunal is also satisfied that notwithstanding him reaching a private civil settlement with one of his clients, he still concedes that he was held in custody and charged with an [offence].

17. The offence of[information deleted].[22]

    [foot note deleted].

18. When discussing with the applicant the money he had received from his clients, he was asked how many of the clients he had reimbursed. His response was that he had reimbursed [amount] to three clients. He accepted that on a conservative estimate there was still at least [amount] owing to the other clients.

19. He said that after being released from custody, he lived with his brother in [City 1]. He claimed that he was still receiving threats through text messages on his phone, and he received threatening phone calls. He went on to claim that on one occasion when he was returning from visiting his wife and family, he was accosted at a bus stop by two men who got out of a car and grabbed him off the street and forced him to go with them.

20. He claimed that these men held him captive for five hours and demanded that he give them SBD$3,000. He said that he did not know these men but is aware that they were related to one of his clients. He said that he called his sister and she paid them the money and he was released.

21. The Tribunal notes that ample opportunity was provided to the applicant to give evidence to the Tribunal to support his claims, yet he did not provide a statement or a statutory declaration from his sister to corroborate his claim that he had been kidnapped and held captive for five hours. Nor did he make her available as a witness in the hearing to testify that she paid the ransom to have him released, and, furthermore, nor did he provide any evidence that he made a complaint to the police about being kidnapped off the street and held for ransom.

22. When this claim is carefully weighed against the other untruthful information he provided to the Tribunal, the Tribunal finds that he is motivated in misleading the Tribunal with regard to his true circumstances. Therefore, the Tribunal does not accept his claim that he was kidnapped and held for ransom.

23. The applicant then went on to claim that there are events that occurred while he was living in Australia, such as the death of his daughter [Ms A] who passed away from [Medical condition] in February 2015. He said that he was unable to return to the Solomon Islands to attend her funeral because of his unresolved issues, and this left him feeling broken and helpless that he could not attend her funeral and support his wife and family during the grieving process.

24. Although the applicant provided no evidence to support the claim about his daughter’s death, the Tribunal is prepared to accept on the balance of probabilities that she has passed away. However, in respect to his claims that he could not return to attend her funeral because he feared harm by his clients who had made threats towards him, the Tribunal finds that those claims are without merit, and the veracity of what he told the Tribunal is questionable. For the following reasons, the Tribunal rejects his claim that he could not return to the Solomon Islands.

25. The applicant’s evidence to the Tribunal was that towards the end of 2012 he fled to the bush to hide and in early 2013 he was taken into custody and charged by the police. After being released from custody he started being threatened and he was kidnapped until he paid SBD$3,000. It is because of those threats that his clients made towards him and his family that he has a well-founded fear of returning to the Solomon Islands.

26. However, it appears to the Tribunal that his claims of a well-founded fear of harm have not prevented him from travelling backwards and forwards between the Solomon Islands and Australia.

27. During the hearing, the chronology as displayed within paragraph 17 of these Reasons was outlined to the applicant. He accepted that the chronology reflected an accurate account of the facts relating to his migration history. In respect to the claims surrounding him being unable to return for his daughter’s death, he claimed she passed away [in] February 2015. It is noted that at the time of his daughter’s death, the bridging visa C granted to him [in] May 2014 had expired and he was an unlawful non-citizen.

28. His migration history between the time that he says he was kidnapped to when he was granted a bridging visa in August 2015 is as follows:

[In]May 2013	Granted a visitor visa.
[In]June 2013	Arrived in Australia.
[In]Sept 2013	Departed Australia and returned to the Solomon Islands.
[In] Dec 2013	Arrived in Australia.
[In] Feb 2014	Departed Australia and returned to the Solomon Islands.
[In] Feb 2014	Arrived in Australia for the final time.
[In] May 2014	Visitor visa granted [in] May 2013 expired. He explained to the Tribunal that he applied to extend his visitor visa.
[In] May 2014	Granted a bridging visa C.
[In] May 2014	Bridging visa C granted [in] May 2014 expired and was granted a visitor visa.
[In] Aug 2014	Visitor visa granted [in] May 2014 expired. The applicant did not return to the Solomon Islands and became an unlawful non-citizen for approximately 12 months until granted a new visa.
[In] Feb 2015	Daughter’s death.
[In] Aug 2015	Granted a bridging visa E.

1. The above chronology shows that any alleged fear he had of returning to the Solomon Islands to attend his daughter’s funeral does not appear to have been a factor on the two occasions he travelled to the Solomon Islands [in] September 2013 and [in] February 2014 prior to her death.

2. On the first of those trips, he stayed for approximately 10 months; and on the second occasion he remained there for nine days. At the time of his daughter’s death he was an unlawful non‑citizen in Australia, and the Tribunal is satisfied (and so finds) that his two previous return trips to the Solomon Islands were without any incident, and that there was nothing to prevent him from returning for his daughter’s funeral.

   FRESH EVIDENCE

3. On 28 November 2023, the Tribunal received an email from the applicant whereby the Tribunal was advised:

   Firstly we wanted to let you know that Witness [Ms B]will not be able to attend the hearing on the 1st of Dec 2023 by the AAT due to her tourist Visa which expired on the [in] November 2023.

   [The applicant]was not able to give proper information due to not having a translator to explain when he was interview back in 2018.He recently given names of the people who have been threatening his life since 2013.This invoices received by [the applicant]were never refunded their money as he went into hiding soon as the threats were highlighted.

   Please see the names of People involved and two hand written threats made.

4. Enclosed in this email were a number of documents, which were four receipts and two handwritten notes, as follows:

   (a)[Receipt numbered] dated 8 March 2012 for the amount of SBD$6,000 received from [Mr A] for services described as application fee/medical examination fee/other expenses under[Business 1].

   (b)[Receipt numbered] dated 5 March 2012 for the amount of SBD$5,000 received from [Mr B]for services described as application fee/medical examination fee/other expenses under[Business 1].

   (c)[Receipt numbered] dated 5 March 2012 for the amount of SBD$5,000 received from [Mr C]for services described as application fee/medical examination fee/other expenses under[Business 1].

   (d)[Receipt numbered] dated 4 March 2012 for the amount of SBD$4,500 received from [Mr D]for services described as application fee/medical examination fee/other expenses under[Business 1].

   (e)Handwritten note addressed to the applicant, written partially in English and partly in a language other than in English. The note appears to contain threats towards the applicant that he is a con man, he should kill himself and his house will be burnt down.

   (f)Handwritten note addressed to the applicant, written partially in English and partly in a language other than in English. The note appears to contain threats towards the applicant that he will be killed.

5. The Tribunal notes that the documents discussed above were not provided to the delegate prior to the decision being made with respect to the applicant’s application. The relevance as to the application of the provisions of section 423A of the Act to that evidence is discussed in greater detail later in these Reasons.

6. When asked at the hearing about these documents, and why they had not been provided to the delegate prior to the making of the decision to refuse his application, the applicant said that these documents were in the Solomon Islands and his family sent them to him recently.

7. The applicant conceded that the documents described above were important evidence and that he had received those threatening handwritten notes back in 2012. It was then identified that during his interview with the delegate on 21 March 2018, he was specifically asked if he had any more information to give, and his response was ‘no’.

8. Because he had presented new evidence at the review hearing which was not presented to the delegate prior to the delegate’s decision being made, it was at this point in the hearing that the provisions of section 423A of the Act were outlined to him. It was also outlined to him that the Tribunal was to draw an unfavourable inference as to the credibility of the evidence if he did not satisfy the Tribunal that he had a reasonable excuse why the evidence was not presented earlier.

9. When asked what his reasonable excuse was, he made the concession that the handwritten notes and the receipts were a fabrication and he had been untruthful to the Tribunal about them. He added that his family had manufactured and fabricated the documents and sent them to the Tribunal. It is noted that the email containing the documents was sent to the Tribunal by one of the applicant’s family members.

10. When taking into account the applicant’s evidence about those documents, the Tribunal finds that the documents, along with the applicant’s evidence about them, is completely devoid of any credibility and they are rejected in their entirety.

    COUNTRY INFORMATION

    State protection

11. The applicant claims that he cannot return to the Solomon Islands because of a well‑founded fear of harm arising out of threats made to him by former clients. He claims that he fears that if he returned to the Solomon Islands he will be harmed, and the authorities in the Solomon Islands will not provide him with protection upon his return to that country.

12. Under section 5J(2) of the Act, a person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Section 5LA(1) of the Act provides circumstances where effective protection measures are taken to be available to a person, including where the relevant State or a party or organisation is willing and able to offer protection, and the protection is durable and accessible to the person. If protection is provided by the relevant State, the protection should consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

13. In assessing the applicant’s claims, the Tribunal has given regard to, and very carefully assessed, the significant credible and reliable country information available to the Tribunal which provides that the Royal Solomon Islands Police Force (‘the police force’) is responsible for internal and external security and reports to the Ministry of Police, National Security and Correctional Services. Through a series of bilateral agreements with foreign governments, elements of foreign police forces play an active and essential role in domestic policing.[23]

    [23]Country Reports on Human Rights Practices for 2022, Solomon Islands, US Department of State, 20 March 2023, p. 1.

14. In respect to the judiciary and the police force contained within Freedom House’s Freedom in the World 2023 report (‘Freedom House report’) on the Solomon Islands is the following relevant country information:

    The judiciary has a reputation for independence, though a severe lack of resources has contributed to case backlogs. Judges are appointed by the Governor-General on the advice of an impartial Judicial and Legal Service Commission. The Court of Appeal is mainly reliant on foreign judges.[24]

    There are few major threats to physical security, though crime remains a problem in some areas. While the country has a history of internal conflict, the threat has subsided over the past two decades, thanks in large part to security aid from international partners.

    The police force, which was disarmed in 2003, has been entirely rebuilt with the help of the Australian-led Regional Assistance Mission to the Solomon Islands (RAMSI), which launched that year. Mostyn Mangau became the first locally appointed police commissioner in 19 years when he took the post in 2020.

    In the wake of the November 2021 riots, Chinese police were deployed in March 2022 to train the Solomon Islands police officers in combat skills and emergency crowd management. The unpublished security agreement reached with China in April 2022 reportedly allows for the deployment of Chinese armed police to help control disturbances in the country and protect foreign-owned capital assets.[25]

    [24]Freedom in the World 2023, Solomon Islands, Freedom House, 2023, Part F1.

    [25]Freedom in the World 2023, Solomon Islands, Freedom House, 2023, Part F3.

1. The 2021 United Nations Office of the High Commissioner for Human Rights, Pacific Community, Situational Analysis report (‘UN HCOHR report’) states the following regarding access to justice within the Solomon Islands:

   Legal aid is available in criminal, family and civil matters, and is administered by the Public Solicitor’s Office. Historically, the Public Solicitor’s Office is overburdened and under resourced, with recommendations made for the government to recruit more lawyers for the Family Protection Unit within the office. Various UN recommendations have reiterated the need to expand services beyond the capital of Honiara and to reactivate the circuit courts in order to facilitate access to judicial services for victims of violence living outside the capital. The [Universal Periodic Review] UPR Working Group (2016) recommended increased budgetary allocation to the training of police officers and the judiciary to ensure that women have equal and substantive access to justice under the Family Protection Act.[26]

   [26]Human Rights in the Pacific. A Situational Analysis 2020, Human Rights & Social Development (HRSD) Division, Pacific Community (SPC) and Regional Office for the Pacific, United Nations Office of the High Commissioner for Human Rights, Pacific Community, 2 August 2021, p. 219.

2. The Penal Code within the legal system of the Solomon Islands provides for a range of offences which are all classified as unlawful acts, including assault. The more serious offences such as murder and grievous bodily harm carry significant terms of imprisonment, including life imprisonment.

3. Within the Solomon Islands, crimes involving violence may constitute a crime under the Penal Code, or another criminal Act, such as domestic violence legislation.[27] For violent crimes, or offences involving the threat of violence, police officers have the authority to issue a Police Safety Notice (PSN) in any situation where a person is under a pressing threat of violence.[28] Police data from 2017 to 2019 shows that 1,034 PSNs were issued across some provinces of the Solomon Islands, however, in provinces that experience higher levels of violence, such as Temotu and Isabel, there was a lower use of PSNs. This is perhaps because the more serious offences warrant the perpetrator being arrested rather than a PSN being issued.[29]

   [27]Reference Guide For The Judiciary When Adjudicating Cases Of Domestic Violence', Morgane Landel, Regional Rights Resource Team, The Pacific Community, Pacific Community, 22 November 2018, 20190617103438, p. 32

   [28]Women’s experiences of family violence services in Solomon Islands', Australian Aid, 26 November 2019, 20230424145519, p. 29

   [29]Women’s experiences of family violence services in Solomon Islands', Australian Aid, 26 November 2019, 20230424145519, p. 29

4. When making a comparison between the applicant’s claims that he cannot be protected in the Solomon Islands as opposed to the country information relating to state protection, the Tribunal prefers the reliable and credible country information over and above the applicant’s uncorroborated evidence. Therefore, the Tribunal does not accept that effective and efficient protection by the Solomon Islands police and associated authorities is not available to the applicant. The Tribunal therefore finds that state protection is available to him upon his return to the Solomon Islands.

   DELAY

5. The Tribunal notes the applicant has a long history of travelling between the Solomon Islands and Australia. He first arrived in Australia in September 2010 and his eighth and last arrival was in May 2014. During those trips he lawfully entered Australia under the conditions of a number of visas.

6. [In] August 2014, his visitor visa expired and he continued to remain in Australia for a period of 12 months as an unlawful non-citizen before being granted a bridging visa E on [in] August 2015. Six days later, on 24 August 2015, he lodged an application with the Department for a protection visa.

7. His claims are that as of late 2012 to early 2013 he was threatened to be harmed by his former clients and was in fact kidnapped and held for ransom. His first trip to Australia after those events took place was in June 2013, yet he did not seek protection on that occasion. Instead, he returned to the Solomon Islands.

8. He then made another trip to Australia in December 2013, and again he did not seek protection. Instead, he returned to the Solomon Islands in February 2014. His last trip to Australia was in February 2014, and again he did not immediately make an application for a protection visa.

9. Instead, he remained in Australia under the conditions of a visitor visa until he applied to extend that visa in May 2014. When his visitor visa eventually expired in August 2014, he remained in Australia as an unlawful non-citizen for another 12 months. It was not until August 2015 that he made his application for a protection visa, which is two years after he arrived in Australia following those alleged harmful acts in the Solomon Islands. The Tribunal finds that this is a substantial delay.

10. When considering that substantial delay, and the features identified above between his arrival in 2013 to when he made his application for a protection visa, the Tribunal is guided by the determinations reached in Anandaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.

11. Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. A substantial delay is not behaviour indicative of someone who fears for their physical safety[30] and the Tribunal particularly notes that the applicant has provided no evidence or offered any explanation as to the extraordinary delay in making his application, except that was he was in Australia on his visa and he felt safe in Australia.

    [30]     ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

12. The Tribunal has very carefully considered the applicant’s substantial period of delay in making his application for a protection visa and finds that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he was to return to the Solomon Islands. The Tribunal also finds that the delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.

    CONSIDERATION OF APPLICANT’S CLAIMS

13. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to the Solomon Islands, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[31]

    [31]Migration Act 1958 (Cth), s 36(2).

14. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims he faces 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 the statutory elements are made out.

15. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[32] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[33]

    [32]Migration Act 1958 (Cth), s 5AAA.

    [33]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

    CONCLUSION AND REFUGEE FINDINGS

16. As already outlined within these Reasons, the evidence shows that without accreditation or a licence, the applicant established a business which purportedly was to provide citizens of the Solomon Islands an opportunity to be part of [a]program known as the[Government project work 1]. The evidence of the applicant was that he took money from his clients, but because he was not [authorised] he could not deliver the services for which he was paid. He does not appear to cavil with the amount quoted by the [Government project work 1]coordinator that he acquired [amount] as an accurate figure, and he has only reimbursed [amount]to three clients. When weighing that evidence against what he said when he was interviewed by the delegate, he told the delegate on that occasion that he had refunded all of the money to his former clients. The Tribunal is satisfied that this is also a motivation for him not wanting to return to the Solomon Islands.

17. The applicant also made a concession in his testimony at the hearing that he fabricated the evidence of the handwritten notes for the purpose of bolstering his case. The Tribunal has already expressed in these Reasons a finding that he lacks credibility and the Tribunal also finds that he was not a witness of truth, and serious concerns are held by the Tribunal with respect to the veracity of his claims that he has a well-founded fear of returning to the Solomon Islands given that he has twice voluntarily returned, as earlier explained in these Reasons.

18. The Tribunal is satisfied that even if there were disgruntled former clients in the Solomon Islands, the applicant has failed to provide any evidence which is probative and credible that he will be harmed by them. Furthermore, there is no evidence of him making any criminal complaint to the police about being threatened, or being kidnapped off the street.

19. Furthermore, the Tribunal is satisfied that the reliable country information quoted above shows that the Solomon Islands police force is largely a professional law enforcement organisation and is generally seen to be impartial with the ability to protect individuals from societal harassment, discrimination and violence, and is relatively accessible to the general public. Any acts of violence, threats of harm or physical harm is considered unlawful and punishable under the laws of the country.

20. The Tribunal is satisfied (and so finds) that, in general, a person within the Solomon Islands is likely to be able to obtain effective state protection against persecution or serious harm from an individual or another party. When carefully considering the credible and reliable country information, the Tribunal finds that the authorities in the Solomon Islands are willing and able to provide effective protection to persons within the jurisdiction.

21. When careful consideration is applied to the evidence of this matter, the Tribunal is not satisfied that the applicant’s claims are credible that a dispute still exists between him and his former clients, having regard to the fact that his former business ceased operating in 2012. Even if a dispute still exists, that quarrel relates to private matters and has no nexus to any part of section 5J(1)(a) of the Act.

22. When providing very careful consideration to all the evidence in this matter, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to his circumstances.

    COMPLEMENTARY PROTECTION CONSIDERATIONS

23. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[34] the Tribunal has considered the alternative criterion.[35] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to the Solomon Islands, there is a real risk that he will suffer significant harm as it is defined in the Act.[36]

    [34]Migration Act 1958 (Cth), s 36(2)(a).

    [35]Migration Act 1958 (Cth), s 36(2)(aa).

    [36]Migration Act 1958 (Cth), s 36(2A).

24. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to the Solomon Islands. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[37]

    [37]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

25. Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to the Solomon Islands now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or to cruel or inhuman treatment or punishment, nor will he be subjected to degrading treatment or punishment.

    CONCLUSION: REFUGEE CRITERION

26. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

100.   Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to the Solomon Islands, he will be exposed to a real risk of suffering significant harm.

OVERALL CONCLUSION

101. 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 section 36(2)(a) of the Act.

102. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

103. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.

DECISION

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

Wayne Pennell
Senior Member

ATTACHMENT  -  Extract from Migration Act 1958 (Cth)

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.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

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 the 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.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.

…