2007006 (Refugee) - [2025] ARTA 1062

2007006 (REFUGEE) [2025] ARTA 1062 (14 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2007006

Tribunal:General Member M Bailey
Date:14 March 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review

Statement made on 14 March 2025 at 11:22am
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – particular social group – gender-based violence – physical assault – fear of killing – bride price – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 8 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 29 June 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 19 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (Solomon Islands) and English languages.
BACKGROUND
The applicant, [an age]-year-old female, last arrived in Australia on a Visitor (FA-600) visa [in] May 2016. As outlined in the delegate’s refusal decision, she had previously travelled to Australia on a Visitor visa between [October] 2015 and [January] 2016. This visa was valid until [August] 2016.
The applicant presented her Solomon Islands passport to the Department of Home Affairs (Department) in support of the protection visa application. The delegate accepted that the applicant is a citizen of the Solomon Islands. I am satisfied that the applicant is a citizen of the Solomon Islands and that the Solomon Islands is her receiving country for the purposes of assessing her protection claims.
Evidence before the Department
Relevant biographical information from the protection visa application is summarised below:
i.The applicant was born in [Village 1], Malaita Province.
ii.Her family members comprise her parents (born in [Town 1], Malaita Province); [specified siblings] (born in [specified years] in Honiara); de facto husband, ‘[Mr A]’ (born in [year] in [Town 1], Malaita Province) and adopted daughter, ‘[Daughter A]’ (born in [year] in Honiara).
iii.She attended primary school between [specified years] and has not undertaken any further schooling.
iv.Regarding employment, she stated that after finishing school she never worked; she grew and sold [food] at the market to support herself.
v.Her relationship status is recorded as ‘De facto’ with the relationship commencing on [a day in] June 2012 in Honiara.
Regarding her claims for protection, she stated that she left the Solomon Islands due to a fear of being tortured and killed by her de facto husband with whom she was living after returning to the Solomon Islands from Australia. He picked her up from the airport, locked her in a room and physically abused her. In response to the question of whether she had experienced harm in the Solomon Islands, she stated that she had been beaten and raped because her husband was jealous when she spoke to other males.
In response to the question of whether she sought help in the Solomon Islands, she stated ‘Yes before I come to Australia on my first visit I reported one incident that he did to me at our house, burning my clothes and burning my private part’. She stated that the police investigated but made no arrest.
If she returns to the Solomon Islands, she thinks her husband will kill her. He did not want her to return to Australia because he was jealous. When he locked her in the room and beat her, he threatened to kill her if she escaped and returned to Australia. When she departed the Solomon Islands for the second time, she escaped without telling him. The authorities would not be able to protect her from her husband and he would be able to find her throughout the country.
In a table of documents provided or to be provided, the applicant indicated that she intended to provide ‘supporting documents (Elders)’ and letters of support from her family, domestic violence services and the police. She stated that she needed to obtain these documents from the Solomon Islands. In relation to the support documentation from elders, she stated that this would be prepared by elders who had witnessed the abuse. In relation to the police report, she stated that she would arrange for her ‘recent report from police’ to be sent to her from the Solomon Islands.
The applicant attended a protection visa interview with the delegate on 6 February 2020. The interview was conducted with the assistance of an interpreter in the Pidgin (Solomon Islands) language. Relevant information provided at that interview, as outlined in the delegate’s refusal decision, is summarised below:
i.Her family comprises her parents, [specified siblings] and adopted daughter, [Daughter A]. Her parents, one brother and [Daughter A] are residing in a suburb of Honiara. [Another family member] is residing in [Country 1] for schooling.
ii.The applicant lived with [Mr A] in a suburb of Honiara since they commenced a relationship on [a day in] June 2012. They had a traditional marriage in 2014 which involved payment of a bride price consisting of ’[amount] red money and [amount] cash’.
iii.Asked when the violence from [Mr A] began, she stated that it started after she returned from Australia in January 2016. When he picked her up from the airport, he started beating her because he believed she had been unfaithful to him while in Australia. This is when the ‘family issues’ started which she described as [Mr A] beating her when he came home drunk and sometimes locking her in a room.
iv.Asked about specific incidents of harm following her return to the Solomon Islands in January 2016, she referred to an incident where [Mr A] burnt her clothes and private parts. She reported this to the police, and they conducted an investigation. She also referred to [Mr A] being sexually violent toward her after she returned from the market because of jealousy.
v.When asked whether [Mr A] had been violent toward her prior to January 2016, she stated ‘no, he used to beat me a little but it got worse’ after her return from Australia in January 2016. He threatened that if she were to return to Australia, he would kill her.
vi.She has had no contact with [Mr A] since her final arrival in Australia in May 2016. He is aware she is in Australia but does not know her specific location. Asked whether [Mr A] has been in touch with her parents or friends, she stated that he has asked her parents of her whereabouts, but she does not know when this occurred.
vii.She stated that she received help from a [relative] who was living in Australia to prepare her protection visa application. Asked about the further documentary evidence referred to in the protection visa application, the applicant stated that she did not have any of those documents.
viii.Regarding her initial travel to Australia in October 2015, she stated that she came for a holiday to visit a friend. She stated that she did not undertake any work during her first trip to Australia.
ix.The delegate raised adverse information with the applicant, as outlined below, and provided her with an opportunity to comment. The delegate explained that this information may indicate that her motivation for seeking to remain in Australia is financial and raises concerns about the credibility of her protection claims. The applicant declined to make any comment in response to this information.
a.Information showing that from the time of her first arrival in October 2015, she has made international money transfers amounting to approximately $[amount] to family and friends in the Solomon Islands and other countries.
b.Information in her Business Visitor visa application lodged on 25 September 2015 stating her occupation as [occupation 1] with the [Agency 1].
c.Information in her incoming passenger cards on arrival in October 2015 and May 2016 which declare her occupation as [an occupation 2].
In refusing the application, the delegate did not accept any of the applicant’s claims regarding [Mr A] to be credible, including that she was married to [Mr A] or been subjected to domestic violence from him. The delegate considered the applicant’s evidence to be vague, confused and inconsistent. The delegate’s decision noted that the applicant’s Visitor visa remained valid until [August] 2016, such that her second travel to Australia in May 2016 did not require a further Visitor visa application, and according to her evidence she travelled to Australia in October 2015 for a holiday as opposed to escaping domestic violence.
Evidence before the Tribunal
Pre-hearing evidence
In a ‘Pre-hearing information form’ dated 9 December 2024 the applicant stated that [Mr A] is ‘more into smoking marijuana’ and according to her family and the community his behaviour ‘is no good’. He shows up at her family house when drunk and threatens them to bring her back. She fears that if she returns to the Solomon Islands, [Mr A] could harm or kill her.
Oral evidence at hearing
Regarding the preparation of her protection visa application, the applicant confirmed that her [Relative A] helped her to complete it. She explained that she told him what to write and he wrote it in the application form. She didn’t read the completed application as she has limited ability to read English.
She moved from [Village 1] to Honiara when she was around 5 years old to stay with an aunt. Her parents remained in [Village 1] but later also moved to Honiara. She completed primary school in Honiara but did not undertake any further schooling. After finishing primary school, she grew produce to sell at the market and bought and sold [specified] goods.
Regarding her family’s current circumstances, she stated that her mother passed away in around 2019 or 2020. Following her mother’s death, her father, one brother and her 2 adopted daughters returned to [Village 1]. The applicant clarified that one of her adopted daughters is [Daughter A] who is currently [age] years old and the other, ‘[Daughter B]’, is currently [age] years old. [Daughter B] was adopted by the applicant while in Australia after the applicant’s mother passed away. Both adopted daughters are currently living with the applicant’s father in [Village 1]. Her father supports himself through subsistence farming. [Another sibling] lives in Honiara.
Regarding her marriage to [Mr A], the applicant stated that the marriage was arranged by his parents when the applicant was around [age range] years old. He is older than her and is also from Malaita Province. He had been previously married and has [children] from that marriage. [Mr A] is currently living with his sister in Honiara.
I discussed with the applicant that in her protection visa application and her oral evidence to the delegate she stated that the relationship with [Mr A] commenced on [a day in] June 2012, and they married in 2014. Asked about the significance of this specific date ([in] June 2012) and how she was able to recall it, the applicant stated that she can’t remember the date and is not sure what it relates to.
When asked about her living arrangements while in a relationship with [Mr A], the applicant initially stated that after payment of the bride price, she moved to [Mr A’s] village in Malaita Province. She then clarified that they lived together in Honiara at [Mr A’s] sister’s house, together with his father and brother, but visited his village during the holidays. She stated that at some stage they also lived with her parents in Honiara.
Asked whether [Mr A] was aware that she was lodging a Visitor visa application in September 2015, she stated that he was not. She did not tell him that she was leaving for Australia; he only came to know of this after her departure. Asked about his reaction, she stated that he was angry with her. She confirmed she was in contact with [Mr A] during the period of her first trip to Australia and told him of her return to the Solomon Islands in January 2016. Asked whether she considered applying for protection during her first visit to Australia, she stated no because the abuse only became more serious when she returned in January 2016.
Asked why her Visitor visa application was made under the Business stream, she stated that other people prepared the application; she just gave them her information. She signed the application but was not aware what was written in it. Asked why she declared her occupation as [an occupation 2] in the incoming passenger cards she stated that she asked some people she was travelling with for help in completing the cards. She clarified that she travelled to Australia with a group of people from the Solomon Islands who had used the same agent to apply for Visitor visas.
Asked to clarify when the violence from her husband started, she stated that before her first trip to Australia they would argue but it became worse after she returned in January 2016. When asked whether [Mr A] was physically violent before her first travel to Australia, she stated yes, mostly when he was drunk or smoking marijuana. She also confirmed that she sought help from the police prior to her first trip to Australia in October 2015. [Mr A] was taken to the police station on 2 occasions and kept there until he was sober. They were living with his family in Honiara at the time. Asked whether his family were aware of the abuse, she stated that both [Mr A’s] family and her own family knew that he was hitting her but did nothing to prevent it.
Asked about the claim in her protection visa application that she reported one incident of domestic violence to the police, she stated this took place after her return to the Solomon Islands in January 2016. I raised with the applicant that in her application she stated this occurred before her first visit to Australia. She responded that she went to the police 3 or 4 times, but nothing was done. She stated that she never received any written documentation from the police. I raised with the applicant that in her protection visa application she stated that she would provide documentary evidence of a report to the police. She responded that she asked her [Relative A] in the Solomon Islands to obtain this but hasn’t received anything.
Asked about the claim in her protection visa application that, following her return to the Solomon Islands in January 2016, [Mr A] locked her in a room and assaulted her she stated this occurred once, while they were living at his family’s house. His family were aware of it but did nothing to stop it. She reported it to the police; they came to the house to speak with him but took no further action.
I discussed with the applicant that following her return to the Solomon Islands in January 2016, she remained there for 5 months before returning to Australia despite having a valid Visitor visa for Australia. Asked why she did not depart earlier if the abuse had escalated from January 2016, she responded that she didn’t know anyone in Australia.
Asked whether she sought help from any organisations other than the police, she stated that she spoke to her church elder. I discussed with the applicant that in her protection visa application she stated that she intended to provide a supporting letter from a domestic violence service. She responded that she has asked her [Relative A] to obtain a letter but has not received it. When asked to clarify if she had any engagement with domestic violence services in the Solomon Islands, she stated no but her friends suggested she get a letter from a domestic violence service because her husband was abusing her. She is not aware of the name of any such service.
I discussed with the applicant that in her protection visa application she stated that she intended to provide a supporting letter from elders who had witnessed her husband beating her. She responded that sometimes they fought in public places, which everyone witnessed but the elder has returned to his village and she has been unable to obtain a letter from him.
Regarding the supporting letter from family that she indicated in her protection visa application would be submitted, she stated that she has asked her family for a letter, but they are scared to provide it because [Mr A] has been to their house asking about her.
The applicant stated that following her final departure from the Solomon Islands in May 2016, she has had no contact with [Mr A]. However, he asks her family for her whereabouts. She stated that when he returns to his village in Malaita Province, he goes to see her father in [Village 1] and also asks her brother and cousins in Honiara about her when he sees them. I discussed with the applicant that [Mr A] has not contacted her for almost 10 years. Asked why she thinks he wishes to harm her given the significant lapse of time, she stated that he has asked her family for her phone number but they refused to give it to him as they don’t want to get involved; the bride price has not been repaid so she is still considered his wife; and he has threatened to kill her if she returns.
I discussed with the applicant that according to the information raised with her by the Department regarding international money transfers, between June and November 2016 she sent close to $[amount] to a person in the Solomon Islands with the same family name as [Mr A] (‘[Mr B]’). I explained that this may indicate that she has sent money following her final departure from the Solomon Islands to a person related to [Mr A] which may cause me to have concerns about the credibility of her claims. The applicant responded that [Mr B] is not related to [Mr A] and it is not uncommon for people in the Solomon Islands to have the same family name. She stated that [Mr B] is a friend from Honiara to whom she sent money when asked.
Asked whether there was any other reason she feels unable to return to the Solomon Islands, the applicant stated that she has been living in Australia for almost 10 years and does not wish to return.
I discussed with the applicant that, while I have not made up my mind, I have concerns with the credibility of her claims relating to [Mr A] due to the issues discussed throughout the hearing. Regarding the documentary evidence referenced in the protection visa application, I noted that she did not provide any supporting documents to the Department and, despite a significant period of time to obtain further evidence, no documentary evidence has been submitted to the Tribunal.
REASONS AND FINDINGS
The issue in this case is whether the applicant
engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act. For the following reasons I have concluded that the decision under review should be affirmed.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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. Relevant provisions of the Act are extracted in the attachment to this decision.

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and 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.
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1]However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44; SZLVZ v MIAC [2008] FCA 1816 at [25]
[2] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
I acknowledge that the applicant’s claims are generally supported by country information which indicates that gender-based violence is considered a serious problem and likely under-reported in the Solomon Islands. Data from a 2021 UN Women report stated 63.5 per cent of women would experience physical or sexual intimate partner violence in their lifetimes. According to a 2011 World Health Organisation report, gender-based violence in the Solomon Islands is ‘largely normalized’ with 73 per cent of men and women believing violence against women to be justifiable, including in response to ‘disobedience’ when women do not ‘live up to the gender roles that society imposes’. While domestic violence is a criminal offence punishable by up to three years in prison and a substantial fine, very few domestic violence cases are prosecuted in the Solomon Islands. Of the cases that are reported to the police, in most instances victims dropped the charges before a court appearance or settled cases out of court. Prosecutions are rare due to low judicial and police capacity and cultural bias against women.[3]
[3] US Department of State, Country Reports on Human Rights Practices for 2023 - Solomon Islands, 29 April 2024; Freedom House, Freedom in the World 2023 - Solomon Islands; World Health Organisation, Gender-based violence in Solomon Islands: Translating research into action on the social determinants of health, 19 October 2011
In assessing credibility, I have also taken into account that the applicant was not represented before the Department or Tribunal and has had limited education. I accept her evidence to the Tribunal that she only completed primary school, has limited English language ability, and supported herself in the Solomon Islands through subsistence farming and selling goods at the market. I have given no adverse weight to the inconsistent evidence in her Visitor visa application or incoming passenger cards regarding her occupation and accept the applicant’s evidence to the Tribunal that a third party completed these documents.
Regarding the preparation of her protection visa application, I accept that she received assistance from a [Relative A]. She explained to the Tribunal that she told her [Relative A] what to write and he completed the form based on what she told him. I accept that she did not review the completed application. However, I am satisfied that the information in the application is broadly consistent with her oral evidence to the delegate and the Tribunal regarding the harm feared from [Mr A]. In the circumstances I have not given adverse weight to inconsistencies between the written application and her oral evidence relating to the timing of incidents of domestic violence or her reporting to the police. However, for the reasons discussed below I have given adverse weight to the lack of any supporting documents referenced in the application.
I have not placed any adverse weight on the money transfers to [Mr B] between June and November 2016. While [Mr B] and [Mr A] share the same family name, I acknowledge that this does not in itself amount to probative evidence that they are related. Based on the available evidence, I accept the applicant’s evidence that [Mr B] is a friend from Honiara and has no direct relationship to [Mr A].
Despite the above, I have significant concerns with key aspects of the applicant’s claims relating to [Mr A]. I have given adverse weight to the following issues which I find in totality to significantly undermine the credibility of these claims:
i.The applicant claims that she experienced domestic violence from [Mr A] prior to her first travel to Australia in October 2015. While she stated that the violence escalated following her return to the Solomon Islands in January 2016, she confirmed that she had sought assistance from the police on several occasions prior to October 2015 due to physical violence from [Mr A]. She stated that [Mr A] was angry when he learnt she had left for Australia without telling him, yet she returned to the Solomon Islands in January 2016 despite her Visitor visa remaining valid until late August 2016. The applicant stated to the Tribunal that she did not consider applying for protection during her first visit to Australia because the violence only escalated after her return in January 2016. However, I have concerns with her explanation given that she claims to have experienced physical abuse of a level that caused her to seek assistance from the police prior to October 2015 and claims to have left for Australia without [Mr A’s] permission, causing him to be angry with her.
ii.Following her return in January 2016, the applicant remained in the Solomon Islands for a further 5 months, before her final departure in May 2016. In circumstances where she claims the violence had significantly escalated on her return and she had a valid Visitor visa for Australia, I find the delay in her departure to undermine her claims. I have taken account of her explanation that she did not know anyone in Australia. However, I do not find this explanation convincing given her previous travel to and residence in Australia between October 2015 and January 2016.
iii.As outlined above, the applicant stated in the protection visa application dated June 2016 that she would provide several supporting documents to the Department regarding the abuse from [Mr A]. She was questioned about these documents by the delegate at the interview in February 2020 and confirmed that she did not have any of these documents. When asked about these documents at the Tribunal hearing in February 2025, the applicant maintained that she had sought to obtain them from the Solomon Islands but had not received anything. She did not indicate to the Tribunal that the information stated in the protection visa application regarding these documents was incorrect. Considering that the applicant has had a period of approximately 9 years to obtain these supporting documents, the lack of any documentary evidence is of concern.
iv.I have considered her explanation to the Tribunal for the lack of documentary evidence but am not persuaded that this overcomes my concerns. She confirmed to the delegate and Tribunal that she maintains contact with her family in the Solomon Islands and, as noted in the delegate’s refusal decision, has transferred significant amounts of money to her family in the Solomon Islands during her residence in Australia. The applicant stated to the Tribunal that she customarily adopted [Daughter B] following her mother’s death in around 2019 or 2020, which I find to indicate an ongoing close relationship with her family in the Solomon Islands. I do not find it plausible that she would be unable to obtain documents from the Solomon Islands via her family over the course of approximately 9 years.
v.Further to the above, there are inconsistencies between the applicant’s oral evidence to the Tribunal and the information in the protection visa application regarding some of these documents:
a.Despite referring in the protection visa application to providing a supporting letter from a domestic violence service, she confirmed to the Tribunal that she had no engagement with any domestic violence services in the Solomon Islands and did not know the name of any such service.
b.Regarding the police report, she stated in the protection visa application that she would provide evidence of a recent report to the police, whereas in her oral evidence to the Tribunal she claimed to have never received any documentation from the police.
c.Regarding the letter from elders who had witnessed the abuse, she stated to the Tribunal that many people witnessed the abuse which often occurred in public places. However, she was unable to obtain a letter from a particular elder because this person had returned to his village. I do not find this explanation to be convincing if there were many witnesses to the abuse and in circumstances where she has had a period of 9 years to obtain this evidence.
d.Regarding a support letter from her family, the applicant stated that they had not provided this because they are scared of [Mr A] and do not want to get involved. However, as above, I find the available evidence to indicate that the applicant has maintained an ongoing relationship with her family in the Solomon Islands and do not consider it plausible that they would refuse to provide her with a letter of support in connection with her protection visa application if the abuse from [Mr A] was as claimed.
Considering all the above, I do not accept that the applicant experienced domestic violence from [Mr A] while in the Solomon Islands or that he has made ongoing threats toward her or her family members during her residence in Australia.
Refugee and complementary protection assessment
Considering the above factual findings, I am not satisfied that the applicant faces a real chance of any harm from [Mr A] if she were to return to the Solomon Islands. I find that she does not have a well-founded fear of persecution and is not a refugee as defined in s 5H(1) of the Act.
I have therefore considered the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the Solomon Islands, she will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[4] For the same reasons outlined above, I find there to be no real risk of the applicant suffering significant harm from [Mr A] as a necessary and foreseeable consequence of her return to the Solomon Islands. I therefore find that the applicant does not satisfy the complementary protection criterion.
[4] MIAC v SZQRB (2013) 210 FCR 505
The applicant has not raised any other claims to fear harm in the Solomon Islands and I find that none arise on the accepted facts.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 19 February 2025
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.
…
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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