2109841 (Refugee)

2109841 (Refugee) [2021] AATA 4640 (24 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2109841
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Meena Sripathy
DATE:24 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 September 2021 at 9:57am
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – fear of harm from cousins because of land dispute – attacks and threats – remote location and police corruption – substantially consistent claims – no serious harm to any family member – attempts at mediation by village council – delay in applying for protection – applied after student visa refused – imprisonment and immigration detention – country information – customary land tenure and social norms – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 5LA(2), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 July 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Solomon Islands, applied for the visa on 12 August 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant had made credible claims of a land dispute or that he genuinely feared returning to the Solomon Islands and therefore was not satisfied that there was a real chance of persecution for one or more of the reasons specified in s5J(1) and therefore he was not a refugee as defined in s5H; or that there was a real risk he would face significant harm upon return there such that he was owed protection under the complementary protection criterion.
The issues in this review are whether there is a real chance, if the applicant returned to the Solomon Islands, he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to the Solomon Islands, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a [age] year old single man born in and a national of, the Solomon Islands. He provided details of one residential address in Honiara, Solomon Islands from 2001 to December 2018. He is of Polynesian ethnicity, and [Christian] religion. He arrived in Australia [in] December 2018 as the holder of a visitor visa. He provided details of two past jobs in Honiara, in [work sector] between 2010 and 2014 and as [an Occupation 1] from July 2014 to December 2018.
In his reasons for claiming protection, the applicant provided the following information. He left the Solomon Islands because of a tribal land dispute over land that was allocated to 4 brothers, of which his father was one. His father grew cacao trees on 4 hectares of the land which is the subject of the dispute. He claims he and his parents were chased from the main village and, being of Polynesian descent, they had to come to Honiara. He claims he could not seek help for fear of safety for his family. They could not move elsewhere in the Solomon Islands because land is customarily owned. The applicant claimed he fears being chased out of the land again. The children of his father’s brothers have already taken over the land and the land issue is not solved yet. The police cannot protect him because of corruption in the force and there are family members in the force who might interfere.
The applicant submitted no supporting material or documents with his application.
On 22 July 2021 the Department sent the applicant an invitation to provide further information addressing:
·The lack of substantiating details about the land dispute in his application.
·That information provided in his application of one stable address in Solomon Islands from 2001 to 2018 may be inconsistent with his claimed fear of harm there.
·The substantial delay in seeking protection which may suggest he had no fear of harm from anyone if he was to return.
On 25 July 2021 the applicant provided a response to this invitation, with the following information:
·That he belongs to a small Polynesian group from [Island 1] in the [region] of the Solomon Islands. His people were moved to [Island 2] during colonial rule. His father and brothers were part of this internal migration and they (his father and two brothers) founded a settlement there called [Village 1]. His father remained on the land while the 2 brothers left to find jobs. However, one mistake his father made was that he failed to have his name listed on the land title. The applicant explained he is a second generation of the resettlement arrangement and the sons of his uncles question the ownership of the land which has led to the dispute since the year 2000 until now. There have been incidents of confrontations on 3 different occasions since then and the latest was in August 2020 which involved cutting down coconut, cacao, betelnut trees that his father cultivated and his younger sister being chased with a [knife] and almost getting cut with it. The police went to the village and arrested the culprit, who was the applicant’s cousin, but he left the threat that if the applicant steps back onto Solomon soil he will make sure he does not see another day. The applicant requested further time to obtain evidence from his home in [Island 2], Solomon Islands about this incident and other incidents that happened before he came to Australia.
·Regarding the matter of his residential address, he explains he may have misinterpreted the question. He left the village for education and employment purposes and resided in Honiara for those reasons. He returned to the village when the school closed or when on leave from work. He owns no property in Honiara.
·Regarding the question about the delay in applying for protection, the applicant explained that his student visa was refused because he failed to provide medical reports as required. He has no assistance here and he had no knowledge about applying for protection while in the country. He always feared for his life in the Solomon Islands but relied on close family connections until he left the country.
The delegate considered this further information, however was not satisfied that the applicant had made credible claims of a land dispute and consequently was not satisfied he faced a real chance or real risk of serious or significant harm upon return to the Solomon Islands and refused the application.
Evidence before the Tribunal
On 17 September 2021 the Tribunal received the following documents in support of his application:
·Letter dated 16 September 2021 from [Mr A], Crime Investigation Officer, [Town 1] Police Station, [Province 1], titled “Police Report” confirming an incident [in] June 2018 regarding a complaint by the applicant about an incident of ‘attempted murder’ involving his cousin brother in [Village 1]. The following day the applicant left for Honiara in fear for his life. The suspect was taken in for questioning but released after 48 hours.
·Statutory Declaration of [Mr B], dated 16 September 2021, uncle of the applicant, describing the family land dispute and supporting the applicant’s claim for protection in Australia due to his fear for his life as a result of this dispute.
·Statutory Declaration of [Ms C], dated 16 September 2021, aunt by marriage of the applicant, stating she was present in June 2018 at the time of the knife incident between the applicant and his cousin brother, [Mr D] and confirming the applicant left to avoid a fatal incident.
·Statutory Declaration of [Mr E], dated 16 September 2021, father of the applicant, describing two incidents that occurred in December 2014 and [June] 2018 relating to the dispute over lands between the applicant and his cousins and the difficulty of obtaining police protection because of the distance between the village settlement ([Village 1]) and the closest police station in [Town 1].
·Statutory Declaration of [Mr F], dated 16 September 2021, community leader in [Village 1], describing the history and nature of the family land dispute involving the applicant and his cousin brothers. The writer declares he was present in the village in June 2018 when a knife incident occurred and the applicant fled for his safety.
The applicant appeared before the Tribunal at a hearing by video on 21 September 2021 and provided the following evidence.
He confirmed his current circumstances. He has been in immigration detention for the past several months. Prior to that he was in several different correctional centres due to a criminal matter about a domestic incident. Before this he was living and working at various locations in Queensland. He came to Australia [in] December 2018 initially on a visitor visa. He subsequently applied for a student visa having obtained a scholarship to study [subject], however his scholarship was cancelled. The applicant’s representative confirmed that his student visa was refused. After that he decided to stay because of problems he had back home with his relatives, and he found work on farms.
The Tribunal asked the applicant about his family composition and their whereabouts. He stated he has no close family members in Australia. In the Solomon Islands, his parents and two younger [siblings] live in the village on [Island 2]. He has [two other siblings] aged around [age] and [age] respectively, who are still studying at high school. They live in Honiara with his uncle, [Mr B]. His sister was living in Honiara prior to the applicant coming to Australia in 2018, but his brother came there since he has been here. The applicant confirmed his education and work history in Solomon Islands. He lived and studied in the village to primary school level. After that, he went to another part of the island, [Village 2], for high school and was there until around 2009. He then went to Honiara to look for work and lived with his uncle. He worked for around 4 years as [an Occupation 2] and then he worked for 4 years as [an Occupation 1]. He lived with his uncle throughout the time he was in Honiara. The applicant’s father is a farmer. He planted coconuts, cacao and other cash crops. He does not make a lot of money from this because it is difficult to transport the crops to Honiara. The applicant confirmed that he has helped to support his family for many years, providing money for his siblings’ education and sending money to the island from Honiara and also from Australia.
The Tribunal asked the applicant about his parents’ family members. He confirmed that [Mr B] is his mother’s sole surviving brother. His father had two elder brothers, the elder one, [Mr G], died around 2005 or 2006. [Mr G] worked for many years around the Solomon Islands in the [specified] industry. Eventually he returned with his family to [Island 2] and the village. His sons are still there, in [Village 1]. The other brother, [Mr H], returned to [Village 1] a few years ago from [Island 1] where he lived for many years with his family. All of these cousins are the ones he is having problems with, they all live in [Village 1].
The Tribunal asked the applicant why he made this application. He said the issue relates to the five hectares of land that originally belonged to his grandfather. His father’s elder two sons left, and his father was the only one who stayed and tilled the land for many years. The problems started when the brothers returned and their sons caused the problems. Despite his father developing the land, the cousins blame the applicant for doing the wrong thing. They believe the land belongs to them as the sons of the eldest child and they do not want the applicant to return because generally land ownership passes to the eldest son in the family. Every time they had arguments, the cousins threatened the applicant. The problems began to get out of hand in 2018. [In] June 2018 he had returned home for a holiday to attend a maternal cousin’s wedding. His paternal cousins accosted him with a knife and threatened him. His father was injured with a knife wound to the [body part], but the applicant was not injured. He managed to get away to [Town 1] and made a complaint to the police. After that he returned to Honiara and has not been back to the village since then.
The Tribunal asked if there have been any other serious incidents. He said he heard of another one when he was in Australia, where his younger sister went down to the plantation to get some coconuts and was chased with a knife. He doesn’t know more details because it was only told to him by his siblings. He mentioned no other incidents.
The Tribunal asked if his parents and siblings have stayed living in the same place continuously. He said they have because they have no where else they can go. They cannot come to Honiara because his uncle has his own family there.
The Tribunal asked why he fears harm if he returns to Solomon Islands. He said he believes his life is threatened by his cousins over this land ownership issue. He believes that if he is allowed to stay in Australia he can earn money to support his family and help them to buy land elsewhere in the Solomon Islands to get away from this threat.
The Tribunal noted that the information about the incident [in] June 2018 was not mentioned before the Department, either in his original application or in his response to the request for further information sent by the Department and this may cause the Tribunal to have some doubts about whether it is truthful. In response the applicant said he asked for additional time to the Department to get the information.
The Tribunal asked again if there are any other incidents or information he wants the Tribunal to consider. He said he believes there is a high possibility his cousins will come for him if he returns. They are all living in the village now. He said despite the village council’s efforts to resolve the dispute, there has been no resolution. If he can stay and work here he will be able to support his family and avoid this issue.
The Tribunal asked why his cousins have not harmed his father to date if they are intent on getting the land by force. The applicant did not give a direct answer, referring to the system of ownership requires the land to pass to the son of the first born, and that his father is the last born.
The Tribunal asked what steps the village council had taken to date. He said they have stepped in and tried to talk to all the parties but it has not fixed the problem and there is no resolution to date.
The Tribunal put to the applicant that independent information before it suggests that in [Province 1] the matrilineal system applies and this would suggest land passes form the mother’s side not father’s. The applicant explained that they are a Polynesian tribe and theirs is a patrilineal system. The matrilineal system applies to the Melanesian communities.
The applicant explained that though his father has used and tilled the land he gave the ownership to his brother’s son so the title is in their name. The Tribunal noted that if he has already done this, there would appear to be no reason to threaten the applicant.
The Tribunal put to the applicant that from his evidence and claims it would appear there is no real chance he will face serious or significant harm on return and invited his comment. He made no further comment on this.
It asked if there is any other reason apart from the land dispute issue, that he fears return. He said there is no other reason. He just wants to be safe in Australia and be able to support his family. He fears his cousins will come for him if he returns. He cannot go to Honiara because he cannot afford to live there and also support his family. He cannot return to live with his uncle because he is a grown man now.
The Tribunal noted that another issue arising for its consideration against the refugee criteria is that the harm feared does not appear to fall within one of the five specified reasons of race, religion, nationality, membership of a particular social group or political opinion and asked if he wanted to comment or make a submission or argument about this. He made no specific submission on this.

The Tribunal noted that his parents and siblings have stayed living in the village and faced no serious harm, and this would suggest he would not face harm either. He made no comment and thanked the Tribunal for the opportunity to hear his case.
The Tribunal invited the representative to make any submissions, but he declined.
FINDINGS AND CONSIDERATION
On the basis of the evidence of his Solomon Islands’ passport provided to the Department, the Tribunal accepts the applicant is a national of the Solomon Islands and considers the Solomon Islands is the country of nationality and receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria.
Consideration of applicant’s claims
The applicant has claimed that he left the Solomon Islands because of a tribal land dispute over land allocated to his father and his father’s brothers. He claimed his father has continuously tilled the land which is the subject of the dispute over ownership and control with his uncle’s sons (his cousins). He claimed that there have been incidents of confrontation on three occasions since 2000 between the applicant’s family and his cousin brothers. Before the Department referred to the latest in August 2020 involving the cutting down of his father’s coconut, cacao and betel nut trees and his sister being chased with a bush knife. Before the Tribunal he referred for the first time, and provided evidence about an incident [in] June 2018 involving an attempt against his life with a knife by his cousin, [Mr D] from which he managed to flee back to Honiara and has not returned to his family’s village since then. The applicant claimed that the police are unable to protect him because the village is more than 3 hours away from the closest police station. He claimed he will not be safe anywhere in Honiara because it is a small place and he cannot go elsewhere in the Solomon Islands because most land is customarily owned.
The Tribunal notes that the only documentary evidence relating to land ownership or his father’s cash crop business before the Tribunal, are the Statutory Declarations recently provided from his father, uncle and an community elder in support of his claims. His written evidence about this history and background has been generally consistent, although there are some discrepancies about the number of brothers and number of hectares of land involved which he clarified in his oral evidence to the Tribunal. His oral evidence to the Tribunal was generally consistent, and he answered the Tribunal’s questions in a candid and forthcoming manner. He provided to the Tribunal supporting evidence in the form of the above mentioned Statutory Declarations and a police complaint letter.
The applicant’s evidence about the substance of his claims has been substantially consistent and coherent throughout the application. While the delegate took issue with some discrepancies in the applicant’s written statements regarding how many brothers his father had and the size of the land in dispute, having had the opportunity to take oral evidence from him at hearing, the Tribunal was able to clarify these matters and is satisfied with his explanation for the discrepancies (mistakes in completing the forms, which were prepared without assistance). He was able to describe his family composition and history to the Tribunal in a detailed and coherent manner, without hesitation, and did not appear to be exaggerating or embellishing his claims. He also provided further evidence to the Tribunal in corroboration of his claims, including a statement from a community elder and letter from the local police station relating to an incident that occurred in June 2018.
On this basis the Tribunal makes the following findings for the purposes of the current assessment. It accepts the applicant is of Polynesian ethnicity, and that his family, originally from [Island 1], settled on [Island 2]. It accepts that his father and his two brothers established a settlement in a place known as [Village 1]. It accepts that his father has lived in this village continuously and cultivated the land, growing cash crops including coconut, cacao and betel nut trees. It accepts that a dispute over the land use is ongoing between the applicant’s immediate family and his uncle’s sons, and that over the years there have been several confrontations. The Tribunal accepts an attempt was made by his cousin to attack the applicant with a knife in June 2018, but he escaped without injury. His father suffered a wound to his [body part] during this incident but has continued to live in the village continuously since then and has suffered no further injury or harm from his nephews. On the applicant’s own evidence, no-one to date in his family has been seriously harmed in the context of the dispute. The Tribunal accepts, on the basis of the applicant’s evidence and supported by the Statutory Declarations provided, that the land was registered to the applicant’s paternal uncle and by patrilineal traditions will pass to his son. It accepts that the village council is aware of, and has attempted to mediate, the family dispute relating to the land and land use.
On the applicant’s evidence and information provided in the application, the Tribunal finds that the applicant has not resided in the village since completing high school, having left in 2004 to pursue education and employment opportunities. He lived and worked full time for 8 years in Honiara since 2009 prior to coming to Australia including 4 years as [an Occupation 2]. On the applicant’s oral evidence, the Tribunal finds the applicant’s parents and two youngest siblings are still residing in the village. It accepts that the applicant has provided financial support to his family since he commenced employment and wants to be able to work and provide for his family in future and help them to obtain alternative land and security in future.
Independent information
In addition to the applicant’s oral, written and documentary evidence, the Tribunal has considered independent information regarding land tenure, dispute resolution mechanisms and tribal violence in the Solomon Islands.
A 2013 paper for The World Bank, Justice Delivered Locally. Systems, Challenges, and Innovations in Solomon Islands, glossed the term ‘Customary land’:
Customary land: Land held according to kastom. Around 87 percent of land in Solomon Islands is said to be held according to customary tenure. Access to and control over customary land depends largely on social norms, hierarchies, and kinship systems. In Solomon Islands, large territories are very often associated with a kin group, and particular areas within those territories (notably land for gardening or housing) is more firmly associated with particular individuals or families.8
In this report, the term kastom is generally used to refer to the social norms and practices that make up local approaches to dispute management and everyday social regulation in communities. These norms and practices derive their legitimacy from a claim to some form of “customary” or “traditional” authority exercised by local “chiefs,” both individually and collectively, rather than from the state. They are also informed by cultural heritage, which varies widely from place to place. Among the people interviewed for this report, the kastom system is without doubt the most frequently utilized and relevant justice system. Some references to kastom suggest that it is something that has “always been” and is unchanging, but kastom is best regarded as fluid and in a process of continual change.[1]
[1] 'Justice Delivered Locally. Systems, Challenges, and Innovations in Solomon Islands', Allen M, Dinnen S, Evans D & Monson R, Justice for the Poor (J4P), Legal Vice Presidency, The World Bank, August 2013, p.34, CIS36DE0BB2040
A 2015 Asian Development Bank report stated, regarding land tenure:
Land tenure. Over 80% of land in the country—and almost all land in rural areas—is under customary ownership recognized in Solomon Islands law. Land is owned in common by clans, but is used by individuals or families.
The leaders of clans make decisions about access and use. Solomon Islands has both matrilineal and patrilineal descent and inheritance systems. In matrilineal clans, membership of the clan and rights to its land are inherited through the mother rather than through the father (as it is in a patrilineal system), but matrilineal clans are headed by men and men make decisions about the use of clan land, including negotiations with investors.
In general, individuals and their immediate families share rights to use portions of their clan’s land holdings. The right to use a particular area of land for agriculture does not confer or imply ownership; traditional principles of land tenure accommodate a system of cultivation of annual crops in which land was fallowed and rotated to maintain soil fertility. Therefore, no single area was considered to permanently belong to an individual or family. However, nowadays plantations of perennial crops such as coconuts, coffee, or cocoa can confer long-term use rights over the land where the trees are planted, even though ownership continues to rest with the clan group. [2]
[2] ‘Solomon Islands country gender assessment’, Asian Development Bank, 2015 [document created 21/10/2015], pp.54-55, 20190524153944; as quoted here omits original text’s footnotes 88-92
The above is consistent with the applicant’s claims regarding customary traditions of land ownership and supports his claim that under patrilineal land ownership customs, the ownership of land passes to the eldest son of the first born and therefore the applicant’s uncle’s son. It is also consistent with his evidence that the village council has to date been involved in attempting to resolve the dispute between the family members.
Regarding independent information about tribal violence over land disputes, the Tribunal found limited information. Freedom House’s 2020 report stated:
There are few major threats to physical security, though crime remains a problem in some areas. While the country has a history of internal conflict, the threat has subsided over the past two decades, thanks in large part to security aid from international partners.37
[3] Freedom in the World 2021 - Solomon Islands’, Freedom House, accessed 25 August 2021, p.12 Section G1, 20210825114957
Residents generally enjoy freedom of movement, but some impediments exist, particularly in parts of rural Guadalcanal where people from the island of Malaita were expelled during the unrest in 1999–2000. Hostility to Malaitan settlement persists in parts of Western Province.[3]
The most recent submissions and reports on Solomon Islands’ United Nations Universal Periodic Review made no reference to tribal or family disputes.[4]
[4] No reference is made in ‘Compilation on Solomon Islands. Report of the Office of the United Nations High Commissioner for Human Rights’ (A/HRC/WG.6/38/SLB/2), Office of the United Nations High Commissioner for Human Rights, United Nations General Assembly, 12 February 2021, 20210811125421; ; ‘Summary of Stakeholders’ submissions on Solomon Islands. Report of the Office of the United Nations High Commissioner for Human Rights’ (A/HRC/WG.6/38/SLB/3), Office of the United Nations High Commissioner for Human Rights, United Nations General Assembly, 22 February 2021, 20210811132338; or ‘Report of the Working Group on the Universal Periodic Review. Solomon Islands’ (A/HRC/48/13), Human Rights Council, United Nations General Assembly, 28 June 2021, 20210811115623.
The United States (US) Department of State report on human rights practices during 2020 stated:
The country has more than 27 major islands with approximately 70 language groups. Many islanders saw themselves first as members of a clan, next as inhabitants of their natal island, and only third as citizens of the nation. Tensions and resentment between the Guadalcanalese and the Malaitans on Guadalcanal culminated in violence lasting from 1998 to 2003. Underlying problems between the two groups remained, including issues related to jobs and land rights.[5]
[5] 'Country Reports on Human Rights Practices for 2020 - Solomon Islands', United States Department of State, 30 March 2021, p.10 Section 6. Discrimination, Societal Abuses, and Trafficking in Persons. … Members of National/Racial/Ethnic Minority Groups, 20210401105740
Other reports located by the Tribunal indicate that even where disputes over land do lead to violent incidents, police get involved and customary traditions lead to settlement of such disputes.[6]
Risk of future harm
[6] Eg. Thugs Injure Passenger During Knife Attack’, RSIPF media [Royal Solomon Islands Police Force media], Solomon Times, 7 January 2021, 20210907090838 ; Police call on 2 tribes in East Kwaio to resolve land dispute peacefully’, Police Media, Solomon Star, 19 August 2020, 20210907091156 ; Solomon tribes resolve land dispute’, RNZ [Radio New Zealand], 25 August 2020, 20210907094008
Above, the Tribunal has accepted for the purposes of this assessment that there is a dispute between his immediate family and his paternal cousin over his father’s use of family land and that his cousin attempted to attack him with a knife in June 2018 from which he escaped and has not returned to the village since. On his own evidence he went to the police to report the incident. According to the letter submitted, they took prompt action to question the suspect, although due to insufficient evidence were unable to pursue the matter further.
This indicates that the applicant has in the past, and can in the future access state protection in the face of any future act of aggression from his cousin or other family member. The Tribunal notes that the declaration of the community member provided also indicates that the village council is aware of the dispute and family tensions and has been involved in attempting to mediate it. On the applicant’s own evidence his parents and younger siblings continue to live in the village since the June 2018 incident, without experiencing serious harm. The title of the land in dispute is already in the applicant’s paternal cousins’ name and there appears to be no basis to inflict harm on the applicant were he to return in future. To the extent that the applicant faces harm or a threat of harm from his cousins in future, this would be criminal in nature and effective protection measures are available to the applicant in the sense that such conduct would be subject to the criminal law, and there is a reasonably effective police force and judicial system available in Solomon Islands(s 5LA(2)).
Additionally, while the applicant claims to fear future harm from his cousins due to the context of the land dispute, neither he nor his representative have raised any specific argument as to how the feared harm would be for any of the five reasons set out in s5J(1) of the Act. On the material before it, the Tribunal cannot find any relevant nexus between the claimed harm and any of these specified reasons.
Having regard to all of the above findings and the applicant’s claims considered individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the specified reasons set out in s5J(1)(a) of the Act.
For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Solomon Islands, there is a real risk that he will suffer significant harm as defined in s36(2A) of the Act. Specifically the Tribunal has considered whether there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to the Solomon Islands.
The Tribunal has considered the applicant’s claim that he fears he will be harmed or killed by his cousins because of the land dispute issue if he returns. Above, the Tribunal accepted the his cousin attempted to attack him with a knife in June 2018. The police report submitted indicates the police responded to his complaint about this by questioning the suspect. Following this, he was in the country for another 6 months before departing for Australia and experienced no further incident. His parents and younger siblings stayed living in the village and have remained there to this time, without experiencing serious harm. Though he has referred to another incident in August 2020, where his younger sister was chased with a bush knife, there is no evidence before the Tribunal that this particular cousin was implicated in this incident and he has not claimed that anyone suffered any injuries. The Tribunal is not satisfied the two incidents referred to are a sufficient basis to find that there are substantial grounds to believe that the applicant faces a real risk, in the sense of one that is not random or remote, of significant harm in the form of arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, within the meaning of these terms. The Tribunal is also satisfied that, to the extent that he faces the risk of a criminal assault or attack from his cousin or anyone else, the applicant has access to effective state protection from the police or village council, such that the risk of the applicant facing significant harm (within the meaning of this term under the Act) is less than a real risk (s36(2B)).
The Tribunal understands and is sympathetic to the applicant’s desire to remain in Australia for the purposes of being able to earn sufficient income to support his family and siblings. It accepts he would like to be able to avoid the dispute with his cousins by helping his father obtain alternative lands to cultivate. However, it is unable to take these desires and motivations into account in its consideration in this review, as the only issues under consideration are whether he faces a real chance or real risk of serious or significant harm on return to the Solomon Islands. With regard to any underlying claim of financial hardship he and his family may face upon his return, unfortunately such hardships do not come within the meaning of significant harm as contemplated by that term in s36(2A).
On the basis of the above findings, and having considered his claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if removed from Australia to the Solomon Islands for reasons of a family land dispute or for any other reason.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 4640

24 September 2021

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