2010211 (Refugee) - [2025] ARTA 1073

2010211 (Refugee) [2025] ARTA 1073 (20 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2010211

Tribunal:Gerard Sammon
Date:20 March 2025

Place:Sydney
Decision:The Tribunal affirms the decisions under review.

CATCHWORDS
REFUGEE – protection visa – Solomon Islands – particular social group – complainant of criminal conduct – fraud allegations against a manager – misappropriation of funds – fear of killing – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
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.
I, General Member G Sammon, certify that this is the Tribunal’s statement of decision and reasons for decision.
Statement made on 20 March 2025 at 10:15AM.
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[1] (the Delegate) on 21 May 2020 to refuse to grant the Applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] As was the then Minister’s then title.
The Applicants who claim to be nationals of the Solomon Islands, applied for the visas on 24 March 2016. The Delegate refused to grant the visas on the basis that that the Applicants were not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) on the basis of each of them being a ‘refugee’ as that term is defined in the Act[2] or eligible for ‘complementary protection' under s 36(2)(aa) of the Act.
[2] Section 5H.
In summary, the basis for the Applicants’ application for protection visas, as stated in their application made in March 2016, was that the Applicant [named] who is husband of his wife [named], and father of the children of the family who are the other Applicants, came into conflict with his manager from his employer in the Solomon Islands, whom [the applicant] said was syphoning money from the employer’s accounts meant to pay for [the applicant’s] study in Australia and that adversely affected payment of his long service leave benefits. I will refer to the manager, whose initials are [specified], as 'the Manager' in these reasons. [The applicant] feared threats from the Manager if he was to return to the Solomon Islands.
The applicant] appeared before the Tribunal on 13 March 2025 to give evidence and present submissions in support of the Applicants’ case. He appeared on behalf of all the Applicants and told me that he did not want to call evidence from any other witnesses.
The Applicants made their application to the then Administrative Appeals Tribunal (AAT) in June 2020, under the provisions of the Migration Act and the Administrative Appeals Tribunal Act 1975 (Cth). The application may continue to be heard by the new Administrative Review Tribunal under transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
BACKGROUND
Citizenship of Applicants
The Delegate accepted that each of the Applicants were citizens of the Solomon Islands. The youngest Applicant, [Child A] was born on [date] in Australia. The Delegate’s decision records that at interview with an officer of the Commonwealth Department of Home Affairs (‘the Department’) which administers the Act, her family provided an original (Australian) birth certificate recording that she was born in Australia.
The Delegate’s decision referred to the Constitution of the Solomon Islands which states that every person born after Independence Day [7 July 1978], whether within or without the Solomon Islands, became a citizen of the Solomon Islands at the date of their birth, if the child has a parent who is a citizen of the Solomon Islands. Since the Delegate was satisfied that the parents of [Child A] were citizens of the Solomon Islands, [Child A] was deemed to be a citizen of the Solomon Islands by descent. I accept that part of the Delegate’s decision which found that each of the Applicants is a citizen of the Solomon Islands.
Claims for a protection visa
Expanding on the summary of [the applicant’s] claims for a protection visa as set out above, in the application for a protection visa, he said that initially he left the Solomon Islands with his family to study in Australia on a sponsored training opportunity given to him by his employer, [Agency 1].
Following some financial difficulties in Australia, [the applicant] then said he resigned his position at the [Agency 1] in February 2015. He alleged that following the resignation, money due to him from the [Agency 1] for long service leave benefits was not paid to him because advances against his salary had been taken by the Manager in the [Agency 1] for himself, including student allowances.
In answer to a question on the application for a protection visa about what [the applicant] thought would happen to him if he was to return to the Solomon Islands, he said that his presence there is a threat to his former Manager at the [Agency 1]. [The applicant] said he was afraid for his family because he knew his former Manager was 'cunning enough to cause harm, or even death to us'.
[The applicant] said in the application for protection visa, that his former Manager:
… will do anything to stop me threatening his position within [Agency 1], and spoil his present and future benefits in [Agency 1] with my moves to proof that I did not take this salary advance of $[amount] which he put against my name in [Agency 1] records.
In response to a question on the application form whether [the applicant] thought that the authorities of the Solomon Islands would protect him and his family if he went back there, he said that it is impossible for the authorities there to give him and his family the protections they need. He said that this is because there is always lack of resources and corruption had infiltrated all levels of governance and services.
[The applicant] answered in the negative to a question on the application form whether he thought he and his family would be able to relocate within the Solomon Islands. He said that is virtually impossible because the country is small, with a small population and it is easy to locate any person anywhere in the country. He also said that it is difficult to relocate to another location in the Solomon Islands if you are not tribally from the new location. He said that is because of customary land issues and ethnic tensions between the native ethnic groups in the country.
After making the application for a protection visa, [the applicant] sent a range of documents in support of the application to the Department of Home Affairs (the Department) which administers the Act. I will refer to those documents below in these reasons for decision.
The Department invited [the applicant] to attend an interview about his claims for a protection visa, and he attended that interview on 21 January 2020.
The Delegate’s decision
The Delegate summarised the protection claims made by [the applicant] in that he feared that if he returned to the Solomon Islands, he would be harmed or killed by his former Manager in the [Agency 1]. The Delegate then turned to analysis of the facts concerning [the applicant’s] travel to Australia and the purpose of that movement.
After reviewing documents provided by [the applicant] and obtained by the Department (including movement records), the Delegate accepted that [the applicant] was sponsored by his employer, the [Agency 1], to study in Australia.
Central to [the applicant’s] claims that he fears harm from his former Manager in the Solomon Islands, is [the applicant’s] assertion that the former Manager stole $[amount] in salary advance meant to be paid to [the applicant].
After reviewing documents provided by [the applicant], the Delegate said that [the applicant] had not provided bank statements and as such, the Delegate was unable to verify that the $[amount] salary advanced on [a day in] May 2013 was not received by him.
During the interview with [the applicant], it was put to him that his allegation of misappropriation of funds is a criminal matter and it was significant that he did not make an official report to the Solomon Islands police. His father is a retired [occupation 1] and his sister [currently an occupation 1] in the Solomon Islands. When questioned during the interview about seeking their advice and support, [the applicant] said that his sister was dismissive and told him to get a lawyer. The Delegate found that the absence of support from his sister and father suggested that the claimed threat of harm to [the applicant] was not genuine.
When asked at the interview why [the applicant] did not obtain legal representation he said that it would cost too much money and he did not have the time or energy to obtain it while he was trying to balance work and study commitments. Furthermore, he did not seek assistance from the Australian High Commissioner to the Solomon Islands located in Canberra because he said that was too far for him to travel.
The Delegate considered that the seven years that had passed since the salary advance was allegedly misappropriated, and that [the applicant] had ample opportunities to report the matter to the police when he was in the Solomon Islands,[3] and overall inaction to pursue his allegation of misappropriation through appropriate channels raised credibility concerns about [the applicant’s] claims for a protection visa.
[3] In late 2014.
The Delegate then reviewed country information gathered by the Department about the reliability of the Solomon Islands police. The Delegate said that country information stated that while there had been criticism of some police officers being more loyal to their respective ethnic group than to the country as a whole, overall police corruption is not a serious problem in the Solomon Islands.[4] The Delegate therefore found that [the applicant] would be afforded protection by [details deleted] and the Solomon Islands police service more broadly.
[4] Citing a report by the United States Department of State, Bureau of Democracy, Human Rights and Labour 'Country Reports on Human Rights Practices for 2019 - Solomon Islands', 11 March 2020, p.7.
The Delegate’s decision also discussed some other financial matters between [the applicant] and the [Agency 1], such as whether funds owing to him by the [Agency 1] may have been used to help extinguish his student debt, and payments made to him to repatriate he and his family from Australia to the Solomon Islands. The Delegate considered that those factors raised concerns about [the applicant’s] credibility which had an overall effect on his claims that he had something to fear from his former Manager should he return to the Solomon Islands.
However, because of those concerns about credibility, protection available to [the applicant] and his family should he return to the Solomon Islands, and his fear of harm no longer specific to his former Manager, the Delegate considered that his claims for a protection visa were not credible. The Delegate was:
of the mind that the Applicant has fabricated his claims for protection in an effort to remain in Australia and [[the applicant]] has fabricated his claims for protection in an effort to remain in Australia and his fear of returning to the Solomon Islands is not genuine.
The Delegate was not satisfied that [the applicant] met the criteria to be a refugee under s 5H(1) of the Act. On complementary protection under s 36(2)(aa), the Delegate was not satisfied there was a real risk that [the applicant] would suffer 'significant harm' if he was to return to the Solomon Islands.
The Delegate was not satisfied that [the applicant] was a person in respect of whom Australia had protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act. The Delegate therefore refused the grant of a protection visa to [the applicant] and to the other Applicants, as members of his family, under s 36(2)(b) or s 36(2)(c).
The Applicants filed an application for review of the Delegate’s decision in an application to the then AAT dated 18 June 2020.
Evidence before the Tribunal
Pre-hearing documents
[The applicant] attached to his application to the AAT, copies of documents which he had earlier provided to the Department on 19 January 2020 prior to the interview on 20 January 2020:
(a)a handwritten document headed 'Solomon Star Newspaper Article: [Article Title 1]' including a copy of an article by the Solomon Star newspaper; and
(b)a handwritten document headed 'Solomon Star Newspaper Article: [Article Title 2]' including a copy of an article by the Solomon Star newspaper.
On 22 December 2020, [the applicant] sent to the AAT, a document headed 'Written Argument' which summarised some of the financial transactions between him and the [Agency 1]. In summary, he contended that the [Agency 1] would not pay out his long service benefits, and instead used it to off-set salary advances made to him. He said that he did not ask for those salary advances, and did not receive them. He said that he had planned to collect his long service benefits before his employment by the [Agency 1] was terminated, in order to fund his studies in Australia. He said that it was only through the process of the [Agency 1] making a pay-out of his long service benefits that he found out about the salary advances made to him. He said he was advised by the [Agency 1] staff that because he had large salary advances made to him he would not receive long service benefits.
In the same document, [the applicant] contended that his former Manager had used the opportunity to 'help himself to some money and put it on my name as salary advances'. [The applicant] contended that for his former Manager to do so was financial theft and a summary-dismissal case in the [Agency 1] so the former Manager and his family’s ‘livelihoods would be at risk because he could be sacked'.
[The applicant] said that the former Manager would attempt to blackmail him by threatening to harm him or especially members of his family as soon as the former Manager saw him in the Solomon Islands.
[The applicant’s] evidence at the hearing
Fear of returning to the Solomon Islands
At the hearing, I asked [the applicant] to describe what he feared if he was to return to the Solomon Islands. He reiterated his claim that his former Manager had misappropriated money owing to him due to his long service leave entitlements as a former employee of the [Agency 1]. He said that if he is pressing for those funds against top management, they will not like it. He said that he is a threat to the top management, to their livelihood and their family. [The applicant] told me that it is likely that other people were involved in that misappropriation as well as his former Manager.
He gave evidence that if he went back to the Solomon Islands, he would become a threat to his former Manager 'if I expose them'. He said that 'they' will try to keep him quiet, and they can do damage to his property. He said that his former Manager is a direct threat, but also the former Manager's friends 'or his people'.
[The applicant] said that he had received no written or verbal threat, but coming from the Solomon Islands, 'I know the mindset'. He said that he must protect his family, that he has a big family and if all his children go back with him, he cannot keep track of all of them. He said that 'they' might get back to him through his children.
Chronology of relevant events
The background issues that [the applicant] raises as the grounds for why his former Manager at the [Agency 1] would make threats to harm [the applicant] and/or his family can be best understood through a chronology of key events as follows:[5]
[5] Relevant sources for the key dates are either listed in the chronology or do not appear to be in contest between [the applicant] and the Department.
·     Prior to [February] 2012, [the applicant] worked for the [Agency 1] in the Solomon Islands.
·     [February] 2012 - [The applicant] arrived in Australia as a student visa holder. He gave evidence that in the academic year 2012, he completed a degree in [subject 1] at [University 1]. He also gave evidence that his family did not accompany him to Australia that year. That is verified by the movement records for his wife, as one of the Applicants. According to the movements records between Australia and the Solomon Islands obtained by the Tribunal, [the applicant] came and went between the two countries on four occasions in 2012. According to those same movement records, he then departed Australia for the Solomon Islands [in] March 2013.
·     2013 - [The applicant] enrolled at the [University 1] in a [subject 1] course. He gave evidence that he commenced the course online from the Solomon Islands before arriving in Australia with his family in May 2013 to complete the course in person.
·     [May] 2013 - the movement records show [the applicant], this time accompanied by his family, arriving back in Australia.
·     2013-2015 - the [Agency 1] sponsored [the applicant’s] study at [University 1].
·     October 2014 – [The applicant] returned to the Solomon Islands and met with his then Manager to negotiate a payment to allow [the applicant] and his family to return to the Solomon Islands.[6]
[6] Travel to the Solomon Islands at this time is established by the movement records.
·     December 2014 - [The applicant’s] then Manager sent an email to [the applicant] that would facilitate he and his family returning to the Solomon Islands. In his evidence at the hearing, [the applicant] agreed that his then Manager arranged for payment of the amount of $[amount] to [the applicant] to repatriate him and his family from Australia to the Solomon Islands.
·     [December[ 2014 - [The applicant’s] student visa expired, according to the movement records.
·     6 January 2015 - According to the movement records, [the applicant] was granted a bridging visa after his student visa expired [in] December 2014.
·     [February] 2015 - [The applicant] resigned from the [Agency 1].[7]
·     10 August 2015 - [The applicant’s] application for a student visa was refused by the Department because he could not produce a certificate of enrolment. [The applicant] 'appealed' this decision.[8]
·     24 February 2016 - refusal, on appeal, of [the applicant’s] application for a student visa.[9]
·     24 March 2016 - [The applicant] made an application for a protection visa. On the same day, he was granted the first of a series of bridging visas which had expiry dates.
·     17 October 2016 - the Department granted [the applicant] a bridging visa which did not have an expiry date.
·     2018 - [The applicant’s] former Manager was continuing to act as [Manager 1] of the [Agency 1],[10] notwithstanding [the applicant’s] allegation of his former Manager stealing money meant to be advanced to [the applicant].
·     20 January 2020 - [The applicant] was interviewed by an officer of the Department about his claims for a protection visa.
·     21 May 2020 - date of decision by the Delegate to refuse the Applicants’ application for protection visas.
·     18 June 2020 - application for review of the Delegate’s decision made to the then AAT.
Sponsorship of the [Agency 1] for [the applicant] to study at [University 1]
[7] [The applicant] provided a copy of his letter of resignation to the Department accompanying his application for a protection visa, as document' H'. That letter is undated, but a subsequent confirmation of resignation letter sent from the [Agency 1] to [the applicant] dated [in] August 2015 confirms [the applicant’s] resignation as effective [in] February 2015.
[8] Delegate’s decision, p. 11.
[9] Delegate’s decision, p. 11.
[10] Delegate’s decision, p. 10, citing an article published on the [Agency 1] website.

There is no doubt that [the applicant] was sponsored to undertake study at [University 1] for the years 2013-2014. That much is clear from a letter by his former Manager to [Agency 2 in] the Solomon Islands dated 13 March 2013.[11] Unfortunately, according to the evidence of [the applicant], the sponsorship arrangement was not reduced to writing, so there is a level of uncertainty about the obligations by the [Agency 1] and [the applicant] under the sponsorship arrangement.
[11] Provided by [the applicant] to the Department with his application for a protection visa, as document 'E'.
When [the applicant] was interviewed in 2020, he said that when he was in Australia, he found that his salary was still being paid. Further to his salary, the Department obtained records of payments made by the [Agency 1] to [the applicant] during 2012-2015, for allowances during his studies in Australia. I put these records to [the applicant] at the hearing in general terms. The records reflect payments made to [the applicant] during those years, of varying amounts, but most commonly, payment of $[amount] quarterly, with a description of the payment as 'allowance' or ‘students allowance' or 'overseas living expenses'.
At the hearing, [the applicant] agreed that he received these allowances. I asked him whether he thought the [Agency 1] treated payment of those allowances as an advance against salary? He replied that there was only a verbal agreement that the [Agency 1] would support him during his study. He said that if the [Agency 1] treated those payments as advances against his salary, then they should have told him that up front and if he had known that he would not have taken up the student sponsorship.
In the same vein, I asked [the applicant] if sponsorship depended on him being successful in his study. He said that he did not complete the [course] at [University 1]. He said that other managers from the [Agency 1] came to Australia to study and did not complete their course, but came back to the [Agency 1] and resumed their positions. He agreed that in contrast, he resigned his position at the [Agency 1], in 2015. He said that the reason that he did so, was to use long service leave benefits he thought he was entitled to, in order to complete the [course]. He said that he thought that even after resigning his position from the [Agency 1], after he completed the [course], he could obtain another position in the Solomon Islands, including in the [Agency 1].
In response to a follow-up question from me about whether, if he was not successful in his studies, he would have to pay back to the [Agency 1] some of the money spent on him undertaking the study sponsorship, he said that was not part of the agreement.
Finally on this aspect, I asked [the applicant] if part of the agreement between him and the [Agency 1] was that he would come back to work for the [Agency 1] for a specific number of years after he had finished study in Australia? He said that there was a general understanding that he would continue to work for the [Agency 1], but not for any specific period of time, and there was nothing in writing about that.
Payment of money by [Agency 1] to [the applicant] for expropriation to the Solomon Islands
By 2014, as [the applicant] stated in the interview with the Department in 2020 he was struggling with several aspects of his life in Australia. He had failed several units of his study in 2014, and was incurring significant costs for the education of his children in Australia. He was also attempting to undertake some casual work.
According to one of the documents[12] supplied by [the applicant] to the Department, he sent an email to his former Manager, in March 2014, concerning his difficulties and payments for student fees, and raising the option of the [Agency 1] paying the costs of repatriating he and his family to Australia. At the hearing, [the applicant] gave evidence that he travelled to the Solomon Islands in October 2014 and met with the Manager. He said that he travelled to the Solomon Islands to meet with his Manager because his Manager had not responded to earlier emails about the [Agency 1] paying money to repatriate [the applicant] and his family back to the Solomon Islands.
[12] Document 'F'.
[The applicant’s] evidence was that his Manager took him out to dinner, with another employee of the [Agency 1], and agreed to grant [the applicant] payment of money, which in the end amounted to $[amount] to repatriate he and his family back to the Solomon Islands. [The applicant] said he did not use that money for the intended purpose, to repatriate his family, but instead, used the money for making a visa application, for medical expenses, and to repay some loans.
Allegation of misappropriation of funds
At the hearing, [the applicant] said that the threat to him is directly linked to the misappropriation of the funds by the former Manager that [the applicant] alleged. He had previously provided to the Department, a spreadsheet of an account from the [Agency 1] that had been provided to him by the [Manager 2] at the [Agency 1], under cover of an email to [the applicant] dated 23 October 2015. That Manager is not [the applicant’s] former Manager whom he contends would be the subject of a threat if he returned to the Solomon Islands. [Details deleted.]
The context in which [Manager 2] provided the spreadsheet to [the applicant] was, assessed by the applicable chain of emails, that [the applicant] was asking for further details of why his long service leave benefits were off-set as against money that the [Agency 1] contended he owed the [Agency 1]. The spreadsheet describes there being an opening balance, as of [a day in] October 2013, of [the applicant] owing the [Agency 1] the amount of $[amount]. The spreadsheet then shows reductions of that amount by fortnightly 'payroll deduction' of amounts between [specified amounts]. On [a day in] January 2014, there is an entry described as 'Staff Advance- VISA Adjustment’ increasing the liability of [the applicant] by $[amount], to a total of $[amount]. The spreadsheet then continues to show fortnightly payroll deductions until [a day in] September 2014, when the balance was $[amount] owing by [the applicant].
At the hearing, [the applicant] denied receiving any advance against his salary, either of the opening balance of $[amount], or a further advance on [the day in] January 2014 of almost $[amount]. However, on the other hand, included in a document which [the applicant] provided to the Department with his application for a protection visa[13] was an email from him to the then [Manager 3][14] dated 28 January 2016, in which [the applicant] states:
I honestly acknowledged receiving a sum of money which is almost, if not the equivalent of the SBD $[amount] in AUD here in Australia, in late 2013. This money was given to me as salary advance as shown on my deduction records.
[13] Marked by him as document 'K'.
[14] Not the Manager about whom [the applicant] contends would be the source of a threat to him.
[The applicant] raised in that document a question about whether it was the responsibility of the [Agency 1] to ensure that he had the right visa to function in Australia as [an Agency 1] internationally sponsored student. However, that is a different question as to whether [the applicant] actually received the amount as a salary advance or not.
Included in documents provided by [the applicant] to the Department when making his application for a protection visa, were documents to senior employees of the [Agency 1], other than his Manager, querying the correctness of the set off of his long service leave benefits, against money which the [Agency 1] contended was owing to it.
The document marked by [the applicant] as document 'K' referred to above in paragraph [48] is a chain of emails between him and the [Manager 3] of the [Agency 1] between January and February 2016. The first document in the series is the email from [the applicant] to the [Manager 3], dated 28 January 2016 asking about the:
[Agency 1’s] move to hold-back my long service benefits (LSB) from me after you, in your capacity [Agency 1’s] [Manager 3] had formalised my resignation in late August 2015.
In response to the spreadsheet of salary deductions referred to in paragraph [46] above, [the applicant] said that although it showed a sum of $[amount] (Solomon Islands dollars) which was taken as an advance for him, he said that 'Please know that I honestly declare that I did not receive that SBD $[amount].’
The [Manager 3] responded in an email the next day saying that he would look into the matter for [the applicant] ‘and inform’. There was a further exchange of emails to and fro, with the last substantive response from the [Manager 3] provided in the document by [the applicant] saying that the [Agency 1] was checking through vouchers for the amount of $[amount] saying it was a 'slow process but getting there’. The [Manager 3’s] email finished saying that 'Once we ascertain that we will then revert'. [The applicant’s] evidence was that the [Manager 3] ceased communication to him.
One document that [the applicant] had not provided either to the Department or the Tribunal, was a document in which the [Agency 1] contended that it had set off long service leave benefits owing to [the applicant] as against money which the [Agency 1] contended that he owed to the [Agency 1]. There was evidence that such a document must have existed at one time, and at the hearing, [the applicant] said that he could provide that document to the Tribunal. I therefore issued a direction to him that he provide the document to the Tribunal.
[The applicant] provided the Tribunal with a bundle of documents concerning his claim for long service leave benefits and set off of amounts that the [Agency 1] claimed he owed to it, under cover of an email dated 18 March 2025.
The first document in the sequence is a memorandum from [Manager 2] to [the applicant] dated 19 August 2015. That memorandum acknowledges [the applicant’s] resignation letter effective [in] February 2015. The memorandum then lists several benefits about which [Manager 2] expected that [the applicant] would receive recognition for his long service with the [Agency 1], including long service leave benefits, any leave accrued and a goodwill payment, amongst benefits.
There was then a series of emails exchanged between [the applicant] and [Manager 2], including a request by [the applicant] not to delay payment any further since it was three weeks since he had received formalities of his resignation from the [Agency 1]. For the purposes of the claim by [the applicant] that his Manager had misappropriated advances against his salary, the critical email is an email dated [in]1 August 2015[15] from [Manager 2] to [the applicant], and copied to the [Manager 3]. That email states that:
We have been calculating your LSB but the money you have advanced have exceeded your earning. In that case we cannot deposit any payments within 2 days as requested. The paymaster and I will look at other things like holiday leave pay and will update you later.
[15] This chain of emails all preceded the emails between [the applicant] and the [Manager 3] referred to above described as document ‘K’, commencing in January 2016.
Importantly, this document which asserted for the first time that the payments made to [the applicant] as advances exceeded the long service leave benefits he was entitled to, was not made under the hand of his Manager, but instead, [Manager 2]. The document refers to the [Agency 1] paymaster, and was copied to the [Manager 3]. There is no reference to [the applicant’s] Manager, or that the offset was instigated by him. There is no evidence in the document that supports an allegation by [the applicant] that his Manager stole his advances against salary or his long service leave benefits. Instead, the document simply reveals that the [Agency 1] was carrying out a conventional exercise in working out what [the applicant] was owed in terms of benefits because of his resignation, as against amounts that the [Agency 1] considered that he owed the [Agency 1] by way of advances against salary.
Evidence of violence against acting [Manager 1] of the [Agency 1]
[The applicant] relied on Solomon Islands newspaper reports that he had provided to the Department when he made his application for the protection visa, of a violent attack by employees of the [Agency 1] against the [Manager 1] of the [Agency 1], as evidence of what could happen to [the applicant] if he was to return to the Solomon Islands.
The newspaper articles describe an incident where several disgruntled employees of the [Agency 1] [attacked] the then [Manager 1].[16] It appeared that the cause of the workers being disgruntled, was that they would not get some bonuses paid to them at [a specified time]. It appeared that the [Manager 1] was engaged on a reform process at the [Agency 1].
[16] Who was not [the applicant’s] Manager, although the Manager had acted as [Manager 1] of the [Agency 1] at one time.
At the hearing, [the applicant] said that he relied upon the media articles to prove how his former Manager would implement a threat against him, together with other similar circumstances, if he went back to the Solomon Islands. I asked him if the incident described in the newspaper articles was not the very reverse of the threat that he apprehended; that is, action by a manager against him as an employee. He responded that if 'someone would have the guts to do that against a senior employee, then there is an external force available’. However, [the applicant] agreed that the incident about the [Manager 1] did not involve [the applicant’s] former Manager and that there is no suggestion in the media articles that the Manager was involved in the violence.
I asked [the applicant] if he was aware that his Manager had committed any act of violence on anyone? He answered 'Directly, no.'
Apprehended threats by the Manager
During the interview of [the applicant] by the Department in 2020, he said that he had passed on the allegation that his Manager had misappropriated his entitlements to his sister, who was [an occupation 1] in the Solomon Islands. His father was also a retired [occupation 1], and had [relevant experience] in the Solomon Islands. In response to passing on the allegation to his sister, [the applicant] said his sister told him to 'get a lawyer'.
At the hearing, I asked [the applicant] if he had made a separate complaint to other Solomon Islands police about his Manager stealing his entitlements. His response was that he did not have the time or the resources to do so. I pointed out that it had been 10 years since he had resigned from the [Agency 1] and he would surely have had time to make a complaint to the police since then? [The applicant] responded that he felt like it was a dead end to do a report to the police. He said first of all he was not in the Solomon Islands, and said also that there were lots of 'under-table payments' and he was not willing to do that. He said that as far as he was aware, there was no reason for him to believe that the Solomon Islands police had commenced an investigation into his allegation of stealing his employment entitlements.
I asked [the applicant] if he apprehended that his Manager would take some form of retaliatory action against him if he returned to the Solomon Islands? He said that it may not be retaliation but instead some sort of anticipatory reaction. He said he could not define the action that he apprehended but that it may involve some sort of threat. He said with his father as [his specified line of work] in the Solomon Islands as a child, [the applicant] said he had grown up in an environment where cases like that happened.
I asked [the applicant] why his former Manager would think that [the applicant] had even claimed that his Manager had stolen [the applicant’s] money. He responded that the Manager would know that he has stolen the money. He said that he had tried to raise the issue with other employees of the [Agency 1], but they have 'silenced themselves from me'.
At the hearing, [the applicant] said he had no evidence that the Manager had made any threats against him. He said his apprehension that his Manager would cause some sort of harm to him if he returned to the Solomon Islands was all an assumption based on his experience when he was in the Solomon Islands, and his knowledge of 'top management' at the [Agency 1]. He agreed that all the [Agency 1] had done was to set off money the [Agency 1] contended he owed it, as against money the [Agency 1] owed him for his long service leave benefits.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether there is a 'real chance' or 'real risk' of [the applicant] and/or his family being subject to harm at the instigation of [the applicant’s] former Manager at the [Agency 1] if [the applicant] and his family were to return to the Solomon Islands. For the following reasons, I have concluded that the decision under review should be affirmed.
Do the Applicants satisfy the refugee criterion for protection?

A claim that [the applicant] or the members of his family are 'refugees' under s 36(2)(a) can be dealt with quickly. For the Applicants to be 'refugees' under s 5H of the Act, they must have a 'well-founded fear of persecution' under s 5J. One of the requirements of the definition of that term, in s 5J(1)(a) is that an applicant fears being persecuted 'for reasons of race, religion, nationality, member of a particular social group or political opinion'. I find that the Applicants do not fall within any of those alternatives.
Definition of the expression 'particular social group' in s 5L lists a number of alternatives, as described in the attachment to these reasons. [The applicant’s] claim for a protection visa is put on the basis of apprehended threats against him and his family by his former Manager because [the applicant] contends that his Manager misappropriated money meant to be paid to him as advances against his salary. He can be recognised as a person who has a contingent civil claim for money owed to him, or as a possible complainant of criminal conduct. However, that is not a characteristic falling within any of the alternatives contained in s 5L(c) of the Act.[17]
[17] Not that [the applicant] has progressed a complaint of criminal conduct with the Solomon Islands police, apart from raising the issue with his sister, [an occupation 1], who suggested that he [engage] a lawyer.
Do the Applicants satisfy the complementary protection criterion for protection?
Having concluded that the Applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). That provision requires me to consider whether if the Applicants were removed from Australia to the Solomon Islands, there is a real risk that they would, now or in the reasonably foreseeable future, suffer 'significant harm'. That term is defined in s 36(2A) of the Act, as described in the attachment to these reasons.
For reasons which follow, I find that there is not a real risk that the Applicants would suffer 'significant harm' as defined if they were to return to the Solomon Islands now, or in the reasonably foreseeable future.
[The applicant’s] claim for a protection visa is based on threats that he fears his former Manager may make to him because [the applicant] contends that his former Manager misappropriated advances against salary otherwise due to him.
In his evidence at the Tribunal hearing, [the applicant] accepted that the [Agency 1] offset his long service leave benefits as against money which the [Agency 1] contended that it was owed from [the applicant]. I find that it is not necessary for me to decide the legal merits of the [Agency 1] setting off benefits due to [the applicant] for long service leave, as against amounts that the [Agency 1] contends that he owed the [Agency 1]. However, [the applicant’s] own evidence is that he raised the correctness of the offset with several senior employees of the [Agency 1], other than his Manager. I find that if there had been anything unlawful about that offset, in the sense of the Manager taking advances against salary due to [the applicant] for his own use, that would have been detected and reported to the Solomon Islands police, not by [the applicant], but by those other senior employees.
Instead, the real question is whether there is a real risk that the Applicants will suffer significant harm in the form of threats being made against the Applicants, or implementation of those threats, by the Manager. For reasons which follow, I find that there is not a real risk that the Manager would cause the Applicants to suffer 'significant harm' in the form of making or implementing threats against the Applicants because of the allegations that [the applicant] may make that advances against his salary have been misappropriated by the Manager.
First, [the applicant] relies on instances of how the [Manager 1] of the [Agency 1] was [attacked] following a dispute between the [Agency 1] and some of its workers in 2014, as to why people can be subject to violence in the Solomon Islands. However, the example given is completely different from what [the applicant] relies upon as the ability of the former Manager to carry out threats against him and his family.
The violence sustained by the Acting [Manager 1] in 2014 arose out of some form of industrial dispute that concerned several employees. By contrast, the dispute that [the applicant] raises as a reason why he and his family may suffer harm is a dispute between a single employee and his former Manager.
The violence sustained in 2014 was initiated by the workers against an executive officer of the [Agency 1]. Instead, [the applicant] is relying on the converse of that: unilateral action taken by a member of the [Agency 1] executive against a former employee. Evidence that in the past, several disgruntled employees took some violent action against a senior executive of the [Agency 1] is no evidence that a member of that executive would initiate violence against a former employee over a matter of setting off benefits otherwise owed to [the applicant] against amounts that the [Agency 1] contends are owing by him. Further, in his evidence at the hearing, [the applicant] said he had no evidence that his former Manager was involved in the 2014 incident of violence against the former [Manager 1] of the [Agency 1]. He gave no evidence of any involvement of his former Manager in any violent action.
Second, [the applicant] said that his return to the Solomon Islands would be regarded by the former Manager as a threat to his livelihood and the livelihood of the former Manager’s family. However, [the applicant] has been in a position to make a complaint to the Solomon Islands police force about the theft from [the applicant] he alleges to have been perpetrated by the former Manager. Indeed, he told his sister who is [an occupation 1] about the theft. That has not prompted any threats from the former Manager.
[The applicant’s] explanation as to why he has not made a complaint of criminal misappropriation to the Solomon Islands police is not persuasive. He said that he has not had the time or the resources to do so. However, it has been 10 years since he resigned from the [Agency 1]. He has had plenty of time to make a complaint of criminal misappropriation to the Solomon Islands police from the relative safety of Australia. He has not done so.
[The applicant] made an allegation to [Manager 2] in his email to her dated [in] February 2016, provided to the Department in support of his claim for a protection visa,[18] that he was ‘100% sure’ his Manager ‘took this money’. Despite making this allegation to a senior employee of the [Agency 1], [the applicant] does not say that prompted a threat from his former Manager about that allegation of misappropriation of funds.
[18] Marked by him as document ‘C2'.
Third, on the question of threats made by the Manager, if there was a real risk that the former Manager was, as a matter of prediction, minded to make a threat or initiate harm against [the applicant], I find that a threat of that kind would have been made by the former Manager to [the applicant] whilst [the applicant] was still in Australia, as a means of deterring [the applicant] from returning to the Solomon Islands. There is no evidence from [the applicant] that he has received any such threats in Australia.
[The applicant] gave evidence that he has not received any threat from his former Manager. What [the applicant] speculates about is that if he was to return to the Solomon Islands, the former Manager would make or implement threats against him of some kind of harm. [The applicant] candidly admitted that his concern about his former Manager causing him or his family some harm, was an assumption on his part. He has no evidence of the Manager making a threat against him.
[The applicant] does not specify the kinds of harm that the former Manager would make or implement. His inability to do so confirms that there is not a real risk that the Applicants would suffer ‘significant harm' if they were to return to the Solomon Islands now or in the reasonably foreseeable future.
Fourth, [the applicant’s] own evidence was that when he travelled to the Solomon Islands in October 2014 and met with his then Manager, his Manager took him out to dinner, with another employee of the [Agency 1], and agreed to grant [the applicant] an amount of $[amount] to repatriate his family to the Solomon Islands. [The applicant] did not use that money for the intended purpose, but I find that it is inherently unlikely that a manager who granted a repatriation payment to [the applicant] to allow him to return, freeing [the applicant] to repeat the claims of misappropriation in person in the Solomon Islands against the Manager, would be a person who would threaten [the applicant] or his family or implement a threat against them, if they were to return to the Solomon Islands.
Fifth and finally, I find that there is not a real risk that the former Manager would make or implement any threat against [the applicant] or his family if they were to return to the Solomon Islands, because making or implementing such a threat would likely lead to that Manager losing his position. Simply put, the risk in the Manager making or implementing such a threat is too great a risk to his livelihood. The former Manager is in a position of considerable significance in the [Agency 1], and has been [Manager 1] of the [Agency 1] as recently as until 2018. [The applicant’s] own evidence is that he raised the possible misappropriation of his long service leave benefits with other employees of the [Agency 1], meaning that it would be unlikely that the Manager would be able to conceal any threat made against [the applicant]. Simply put, too many other employees knew about [the applicant’s] complaint.
For these reasons, I find that there is not a real risk that the Applicants would suffer significant harm if they were to return to the Solomon Islands now, or in the reasonably foreseeable future. I therefore find that the Applicants are not entitled to complementary protection under s 36(2)(aa) of the Migration Act.
CONCLUSION
For the reasons given above I am not satisfied that any of the Applicants is a person in respect of whom Australia has protection obligations. Therefore, the Applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the Applicants protection visas.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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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