2118062 (Refugee) - [2025] ARTA 1612

2118062 (Refugee) [2025] ARTA 1612 (19 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2118062 and 2118216
Tribunal:General Member T H R Baggiano
Date:19 June 2025

Place:Brisbane
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)that the first named applicant meets s 36(2)(aa) of the Migration Act;
(ii)that the second named applicant meets s 36(2)(aa) of the Migration Act; and
(ii)the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first and second named applicants.

Statement made on 19 June 2025 at 3:07pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – particular social group – men who commit adultery – culturally married to another woman – kastom – customary law – beaten by relatives – fear harm from former wife’s family – threats of violence – inability to pay compensation – state protection – corruption – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCA 437
Selvadurai v MIEA (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 15 November 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceedings before 14 October 2024 is taken to have been done by the Tribunal. This decision and statement of reasons is made by the Tribunal.
Although two separate protection visa applications and review applications were lodged by the adult applicants, for the purposes of this decision and for clarity, the female adult applicant will be referred to as the first applicant, the male adult applicant will be referred to as the second applicant and their dependent children will be referred to as the third, fourth and fifth applicant respectively. All applicants have agreed to combine their review applications so that the Tribunal may deal with their matters in one decision.
The first applicant applied for a protection visa on 27 February 2017, with the third, fourth and fifth applicants being included as dependants. The second applicant applied for a protection visa on 24 August 2017, with the fourth and fifth applicants being included as dependants. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
The first and second applicants appeared before the Tribunal on 3 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin English and English languages.
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.
CONSIDERATIONS OF CLAIMS AND EVIDENCE
Background and receiving country
The applicants claim to be nationals of the Solomon Islands.
The first applicant is [age] years old. The first applicant has claimed her place of birth as [Village 1] and her religion as Christian. She last arrived in Australia [in] November 2016 as a holder of a Visitor (subclass 600) visa.
The second applicant is [age] years old. The second applicant has claimed his place of birth as [Village 2] and his religion as Christian. He arrived in Australia [in] November 2009 as a [holder of a] visa.
The first and second applicants provided copies of the biodata pages of their old passports as part of their protection visa applications. They also provided copies of the biodata pages of their current passports to the Tribunal as part of their review applications. The original current passports were sighted by the Tribunal on the day of the hearing.
The third, fourth and fifth applicants provided copies of their Australian birth certificates as part of their visa application. According to the Constitution of the Solomon Islands and the Solomon Islands Citizenship Act,[1] although the third, fourth and fifth applicants were born outside of the Solomon Islands, they will automatically acquire Solomon Islands citizenship if either of their parents are Solomon Islands citizens, which they are.
[1] The Constitution of the Solomon Islands 1978, Chapter III; Citizenship Act 2018 (No 7) (Solomon Islands).
I find that the applicants are citizens of the Solomon Islands, and that the Solomon Islands is their receiving country for the purposes of assessing their claims for protection.
Evidence before the Department
Protection visa application for first applicant
In her protection visa application, the first applicant claimed the following:
a.She started travelling to Australia in 2011, visiting family and her boyfriend, the second applicant, whom she commenced a relationship with back in the Solomon Islands;
b.She returned to Solomon Islands in September 2016 and realised that she was two months pregnant;
c.Due to culture and customs in Solomon Islands, they do not accept the first applicant and her baby as her boyfriend, the second applicant, was a married family man, which they all knew and had a conflict with him in 2008. The incident happened [in] May 2008;
d.The first applicant did not experience harm in the Solomon Islands as it was too early for them to realise that she was pregnant;
e.She did not seek help within the Solomon Islands;
f.She did not move or try to move as she did not have family and friends in other countries;
g.She believes that she will be harmed or mistreated if she returns to Solomon Islands as she brought disgrace to her family;
h.Her brothers and relatives would reject her and her baby and would not physically or financially assist her and would not want to see the in the village;
i.She does not believe that authorities in Solomon Islands could protect her as she does not know any association or group that she could get help from. Police would say that the issue is a family matter and to resolve at home in her village;
j.She does not think that she could relocate within the Solomon Islands as she lived in the village and that is the only place she knows.
The Department’s file included a list of financial transactions to and from the first applicant between 6 April 2015 and 1 August 2020.
The applicant attended an interview with the delegate on 20 September 2021.
The following information and documentation were provided by the applicant in support of her protection visa application at various stages of her protection visa application and prior to receiving the delegate’s refusal decision:
a.Her biodata pages for both old and current passports;
b.Her Solomon Islands birth certificate;
c.Australian birth certificates for her three children, the third, fourth and fifth applicants;
d.Certified copy of her Solomon Islands police clearance certificate dated 25 June 2018;
e.Certified copy of letter of support dated 26 June 2018 from Chief of [Village 3], Mr [A];
f.Copy of school certificate confirming completion of Form Three dated 30 September [year];
g.Copy of school certificate confirming completion of Form Five secondary studies dated 9 September [year];
h.Copy of certificate of achievement in [Field of study 1] courses dated 5 October [year];
i.Copy of certificate in [subjects related to Field of study 1] dated 19 November [year];
j.Copy of certificate of completion in [Field of study 2] Course dated 6 May [year];
k.Post-interview submissions from the applicant to the delegate, summarised as follows:
i.She completed her education in [Field of study 1] in Solomon Islands in [year];
ii.She completed her studies through [a Field of study 2] consultancy agency in [year];
iii.All of her education certificates were issued in her father’s name, [Mr B], except for one certificate where she used her original tribe [name];
iv.During her studies, she was in a relationship with a married family man;
v.The news about this relationship reached everywhere, including her family, and her partner’s former wife;
vi.It was only then that she realised she was in a relationship with a married family man;
vii.She started having a difficult life because she broke the law of culture and custom by having an affair with a married man, and her family rejected her and she was no longer part of the family;
viii.At night, when she was sleeping, her family pulled her out of bed and beat her with a stick until she was half dead for about an hour;
ix.She looked for a safe place to live but there was no such place;
x.She was afraid of her brothers as they promised that if she was having an affair with a married family man, they would cut off her neck and throw her into the sea;
xi.They demanded that she not make herself seen around the village and for everyone in the village not to accommodate or provide financial support to her as she had broken the law of culture and custom;
xii.Her partner’s former wife heard of the news and was very angry. She promised that she would push a knife inside the first applicant’s mouth and murder her. The former wife is still looking for the first applicant;
xiii.If she returns to the Solomon Islands, it is very risky for her and her children as they will face harm;
xiv.It would be difficult for her to find accommodation and financial support;
xv.She and her children will not have freedom to move around, like they do in Australia;
xvi.Her children’s future is important and she wants them to go to school in Australia and find good work;
xvii.In the Solomon Islands, there is no work for them after they finish school, and there is no work for her to support her children.
Protection visa application for second applicant
In his protection visa application, the second applicant claimed the following:
a.He left the Solomon Islands as he was married but had entered into a relationship with a young girl from Malaita province, the first applicant;
b.His wife’s brothers, uncles and relatives found out and bashed him badly, abused him and threatened to kill him;
c.The first applicant’s brothers and male relatives also bashed him more than once, and kept on issuing threats to harm and kill him because they believed that as a married man, the second applicant had spoiled the first applicant’s young life, she will be rejected by her boyfriends and she will not have a good life;
d.In April 2008, some of his former wife’s relatives saw him and the first applicant at [a park] in [City 1];
e.The news got to the second applicant’s former wife, who was so mad that she told her brothers and uncles about it [in] May 2008;
f.They came to the second applicant’s house while he was sleeping and bashed and harmed him;
g.He kept contacting the first applicant;
h.In June 2008, the first applicant’s brothers and uncles and other male relatives learned about their secret affairs;
i.During his next trip to [City 1] in September 2008 to sell [goods] for his children’s school fees, he was bashed again and abused by the first applicant’s relatives again;
j.They warned him not to report the matter to his relatives or even the police, otherwise they would murder him;
k.The second applicant tried to avoid the first applicant, but the first applicant kept on insisting that he marry her, and that made the situation worse for him as he already had a family;
l.His wife and children were not on good terms with him, and it was risky for him being in his own family home since his former wife could do anything to destroy his life, and organise for her family to attack him;
m.If the second applicant returns to the Solomon Islands, he believes that he will be harmed and killed for spoiling the first applicant’s young life;
n.His life will be in danger from his former wife’s relatives;
o.He was warned by his former wife’s relatives again, and also by the first applicant’s relatives that if he does not stop, they will kill him;
p.The Malaitan culture is very strict about married men having affairs with young girls as it is an embarrassment to the young girl’s family and culture;
q.He does not believe that the authorities in Solomon Islands could protect him. He was threatened by the first applicant’s relatives not to report what they did, otherwise, they would kill him. Police, like any other government ministry or department are corrupt and they would not be able to help or protect him as this is a domestic or family matter;
r.If he goes back to the Solomon Islands, he will be harmed by his former wife’s relatives and the first applicant’s relatives as he had an affair with the first applicant which disrespected and caused embarrassed to his former wife’s family and to the first applicant’s family and culture and did not pay compensation to these families;
s.The first applicant’s family demanded payment of $20,000, two pigs and 3 Malaitan shell money (10 strings);
t.His former wife’s family demanded $10,000;
u.He has not been able to pay this compensation as he did not have that kind of money, since he did not have a job.
The Department’s file included a list of financial transactions from 19 March 2010 to 12 March 2021, which included transactions from the second applicant to the first applicant from 25 July 2015.
The applicant attended an interview with the delegate on 20 October 2021.
The following documentation was provided by the second applicant in support of his protection visa application:
a.His biodata page of his passport;
b.His Solomon Islands birth certificate;
c.Certified copy of his Solomon Islands police clearance certificate dated [June] 2018;
d.Copies of Australian birth certificates for two his children, the fourth and fifth applicants.
Evidence before the Tribunal
Pre-hearing evidence from first and second applicants
On 30 January 2025, the Tribunal invited the first applicant to complete a pre-hearing information form. In response, the first applicant completed a pre-hearing information form dated 7 February 2025. In the section where the first applicant was asked if she wanted to give any more information about her claims, the first applicant stated the following:
a.If I return to my country Solomon Islands, I and my family will not financially support because back in Solomon there’s no work there for me to work to support my children in school. Australia is the place I knew that my children will get knowledge. Also I rejected by my family.
The first and second applicants provided the Tribunal with the following shared information and documents:
a.Certified copy of marriage certificate for the marriage between the first and second applicants;
b.Certified copies of third, fourth and fifth applicants’ Australian birth certificates;
c.Rental tenancy agreement for the applicants’ current rental property.
The first applicant provided the following documents:
a.Certified copy of current passport biodata page;
b.Copy of Covenant Membership certificate issued by the [Church 1] dated 30 April 2023;
c.Letter of offer from [Church 1] for [a position within the church] dated 13 February 2024;
d.Letter of support from [Member A] Member of Parliament, dated 20 February 2024. The letter speaks to the importance of the first applicant’ [position within the church], her tasks and duties, and [Member A’s] request that the first applicant’s visa application be given favourable consideration;
e.Payslip from current Australian employer for the period of 8 May 2025 to 14 May 2025.

The second applicant provided the following documents:
a.Certified copy of current passport biodata page;
b.Copy of Covenant Membership certificate issued by the [Church 1] dated 30 April 2023;
c.Letter from [Church 1] confirming the second applicant’s membership to the church, his and his family’s regular attendance of Sunday worship, assistance with cleaning and mowing rosters, the first applicant’s role [within the church] for the past three years [of role details], and that the second applicant works hard at a local [workplace], is held in high regard and has many [skills] which would be transferrable;
d.Payslip from current Australian employer for the period of 8 May 2025 to 14 May 2025.
First applicant’s oral evidence
First applicant’s preparation of protection visa application
The first applicant prepared her own protection visa application. She confirmed that her English language ability was at a level which allowed her to independently write her own claims for protection. The first applicant also confirmed that after her interview with the delegate on 20 September 2021, the letter that she submitted to the delegate which provided further details relating to her claims was written by her independently.
First applicant’s personal details and family background
The first applicant was born in [Village 1] in Malaita province but when she started school, she moved to [Village 3] in Malaita province to live with family friends. During school break, she would visit her parents. After finishing high school, the applicant moved to [City 1] and lived in a hostel with her aunty, Ms [A]. On one occasion, she would return to [Village 3] to visit her family. She remained in [City 1] with her aunt up until the time she last departed the Solomon Islands.
The first applicant has a father, mother, two biological [sibling] and one adopted [sibling] that all live in [Village 3]. The first applicant has not remained in contact with her family in the Solomon Islands.
The first applicant shares three children with the second applicant.
The first applicant completed the studies listed in paragraph 21.
In 2014, the first applicant worked in [City 1] for around one year in a shop owned by her friend. She did not work in any other places whilst in the Solomon Islands.
In Australia, the applicant is currently working in [Workplace 1]. She also works in a voluntary [role] in a church.
The first applicant provides some financial assistance to friends in the Solomon Islands whenever they need the funds.
First applicant’s reasons for leaving the Solomon Islands
The first applicant stated that the second applicant’s former wife found out about the first applicant’s relationship to the second applicant. In addition, her own brothers advised that because she has entered into a relationship with a married man, they would kill her.
The second applicant’s partner is very upset that the second applicant has left her and their child and gotten into a relationship with the first applicant. The first applicant is of the view that the second applicant’s former wife is very upset and could hurt her.
For these reasons, the first applicant is afraid to go back to the Solomon Islands.
She is also worried that there will not be any work for her, and as a result, she would not be able to support her children. In Australia, the applicant has found work and can support her children.
The first applicant recalls meeting the second applicant in 2008 in [City 1]. He approached her in a park and asked to be friends. As he told her that he did not have a family, she agreed to the friendship which then turned into a relationship. The first applicant’s friends had not met the second applicant. They only met his former wife when she confronted them, about the first applicant being in a relationship with her husband who was a married man.
The first applicant discovered that the second applicant was a married man when members of the community that knew the second applicant sighted them together in a park, and the news spread to the first applicant’s family and the second applicant’s former wife’s family. The first applicant explained that she was told by the people who knew that the second applicant was a married man.
I asked the first applicant to clarify if community members and family members found out about her relationship with the second applicant in 2008 or 2009. I noted in her interview with the delegate, she mentioned that at the end of 2009, everyone in the community had seen her with the second applicant, and the news spread thereafter. Her response was that she was not sure and that she was confused with the dates of 2008 or 2009. She confirmed that both her and the second applicant’s former wife’s families found out about their relationship around the same time.
I discussed with the applicant the concerns raised by the delegate in interview and also in the protection visa refusal record that there was insufficient evidence to substantiate that the first applicant and second applicant’s relationship commenced in 2008. I also raised with the first applicant that during her interview with the delegate, she mentioned that her relationship with the second applicant ended in 2009. The first applicant maintained that her relationship with the second applicant commenced in 2008 and that it was ongoing from that time. In relation to the alleged statement during interview that her relationship with the second applicant ended in 2009, she is of the view that the interpreter used during interview must have gotten that wrong.
In relation to the second applicant’s former wife, the first applicant was never confronted by her in person. She had heard about the former wife’s threat and that was the reason why she decided to relocate to Australia. The threat was made to the first applicant’s friends who then passed on the message to her. During this time, both the first applicant and the second applicant’s former spouse were in town at the same time. As such, her friends warned her not to go into town. The threat was that the second applicant’s former wife would find the first applicant no matter how many years go by. The first applicant initially could not recall the date of the threat but later stated that in was in 2016, which was the same year she departed for Solomon Islands for Australia.
Asked why the first applicant did not mention the threat from the second applicant’s former wife in her protection visa application, the first applicant stated that while she wrote her own application, she did not think of putting in details about the former wife. At the time, she was pregnant and fearful of her own family and did not mention the second applicant’s former wife.
In relation to instances of threats or harm from her brothers, she stated that they hit her when she was at home in [Village 3]. During that time, she was living with her aunt in [City 1] but returned to [Village 3] once before coming to Australia. This was in 2016.
Asked why the first applicant would return to her family’s village in [Village 3] if they disapproved of her relationship with the second applicant in 2008, the first applicant then corrected her statement and said that the incident happened in [City 1] when her brothers travelled there in 2016. They went to her aunt’s place and hit her in 2016. They harassed her from outside her aunt’s place.
I asked the first applicant if that incident was the only time her brothers physically laid hands on her, she confirmed that it was the only time.
I asked the first applicant why her brothers did not try to harm her in 2008 or 2009 when they first discovered her relationship with the second applicant, and why they waited until 2016. The first applicant’s response was that her brothers were in [City 1] at the time. Her aunt was there when the confrontation happened and her aunt shouted at them to go away.
I asked the first applicant again why her brothers didn’t look for her sooner and she stated that they did find her and the second applicant in around April 2008. They came to her aunt’s home and started harassing her. While they did not physically hurt her that day, they promised to kill her if they saw her anywhere else or with the second applicant. Asked whether this took place inside the aunt’s home, the first applicant answered in the affirmative.
Her brothers let her know that if they saw her anywhere else, they would kill her. They had specifically come to [City 1] to find her as they heard that she was in contact with the second applicant and that she would wait around for him in town.
I asked the applicant what she meant by waiting around for the second applicant in town if the second applicant had already departed for Australia in 2009. She then clarified that it was at the beginning of their relationship that she would wait for him in town.
When asked if those two incidents were the only two where her brothers threatened or harmed her, she confirmed that that was correct.
Later in hearing, I summarised that the first applicant’s brothers had allegedly threatened her in 2008 and 2016. I asked how she was able to remain safe between 2008 and 2016 before she finally left Solomon Islands permanently. While the first applicant did not directly respond to the question, she stated that it was only one time that her brothers came to harass her at her aunt’s house. She still remembers everything that was said to her and the threats. That is why she is scared.
The first applicant stated that both her brothers and the second applicant’s former wife’s family asked for compensation from the second applicant. She recalls that the second applicant’s former wife’s brothers asked for SBD $20,000. She cannot recall how much her family demanded in compensation. Asked how the second applicant’s former wife’s family demanded the compensation from him, the first applicant confirmed that they went and demanded it from him directly. As the second applicant did not have the money to pay, he did not give any money to the first applicant’s family nor to his former wife’s family.
If the second applicant had been able to pay the compensation money, the first applicant is not sure if that would be sufficient or whether they would expect for her to break up her relationship with the second applicant.
Asked whether compensation has been demanded from either family in recent times or since the second applicant arrived in Australia, the first applicant stated that the demands for compensation from her family and from the second applicant’s family occurred before he arrived in Australia. As he did not have sufficient money to pay the compensation, he then travelled to Australia.
The first applicant stated that she did not seek help from within the Solomon Islands. While she thought about moving to another place within the Solomon Islands, she did not as she realised it would be easy for her to be found.
When she started working in her friend’s shop in 2014, that was when she started to save money and decided that she wanted to move to Australia. She hid and worked until she saved enough money to come to Australia again in November 2016.
Asked why the first applicant did not seek protection and stay in Australia when she visited Australia twice in 2015 and again in July 2016, she stated that she was invited by a Mr [C] who wrote a letter stating that she was his girlfriend but that this was not true. Her friends had sorted her visa and airfares, so she decided to travel with them. When she travelled to Australia with her friends, she did not know about the protection visa, so that is why she returned to the Solomon Islands. It was in 2016 that she decided to follow the second applicant and moved to Australia.
When asked to comment on the two money transfers the first applicant made to her brother, Mr [D], in November 2016 and November 2018, she stated that her brother’s girlfriend had asked the first applicant to make the transfer to Mr [D] as she was working during weekdays and because the banks were closed on weekends. I raised with the first applicant that it appeared to be unusual for the first applicant to be in contact and assist her brother’s girlfriend, given that her brother has threatened to kill her. The first applicant stated that when she transferred the money to her brother, her brother’s girlfriend told the first applicant’s brother that she herself had sent the money. I discussed with the first applicant that the length of time between the two money transfers was two years, which is quite a significant amount of time to have kept in contact with the girlfriend of her brother who was hostile towards her. The first applicant then stated that she lost contact with her brother’s girlfriend in 2017. I advised the first applicant that there was a second money transfer made in November 2018, after which, the first applicant corrected her statement to say that she lost contact with her brother’s girlfriend at the end of 2018.
After arriving in Australia, the first applicant became friends with the daughter of the chief from her family’s village via social media. The chief’s daughter then helped connect the first applicant with the chief who spoke to one another by telephone. As a result of the conversation, the chief issued a letter dated 26 June 2018 which was passed on to the delegate.
I asked the applicant whether she had contacted the chief in 2008 when her relationship with the second applicant had been discovered by the wider community. At first, the first applicant stated she spoke to the chief in 2008. When I asked the applicant why the chief would then provide a letter 10 years after the incident, she then clarified that she was in Australia when he wrote the letter and that she did not speak to the chief in 2008. He did not personally know about the incidents when they happened in 2008 but the first applicant told him about it when she spoke to him over the phone from Australia. The chief attempted to contact her brothers to resolve their issues but her brothers did not want to listen. Asked why the chief does not mention the second applicant’s name, the first applicant stated that the chief just referred to the second applicant as a ‘married family man’. Asked why the chief only mentions that the first applicant was rejected by her family but did not mention anything about the threats of harm or killing by her brothers or by the second applicant’s former wife, the first applicant stated that she noticed that some things which she mentioned by telephone to the chief were not included in the letter.
If returned to the Solomon Islands, the first applicant fears that her brothers and the second applicant’s former wife will still hold a grudge against her. No matter how long it has been, they will still harm her and her children. She has witnessed and heard stories of this happening to many women around the Solomon Islands.
The fist applicant does not believe that authorities in the Solomon Islands could protect her. She will still be harmed by her brothers and the second applicant’s former wife. The police will not help as they will not want to be involved and will ask them to settle the issues themselves as it is a family matter.
The first applicant stated that she was not too sure if she could relocate to another part of the Solomon Islands to avoid harm from her brothers and the second applicant’s former wife.
Second applicant’s oral evidence
Second applicant’s preparation of protection visa application
The second applicant prepared his own protection visa application. He confirmed that his English language ability was at a level which allowed him to independently write his own claims for protection.
Second applicant’s personal details and family background
The second applicant was born in [Village 2] in [Province 1]. Prior to coming to Australia, the applicant lived in [City 1] for around seven years with a friend known to him as [Uncle A], whom he also referred to as ‘uncle’. Prior to [City 1], he lived with his former wife in [Village 4].
Although he moved to [City 1], the second applicant was still in a relationship with his former wife who he married through a customary marriage and paid a bride price, and recalls that he was with her for seven to eight years up until 2008. The second applicant shares one [child] with his former wife. He does not keep in contact with his former wife or the [child] that he shares with his former wife. He believes that this [child] was born in [year].
The second applicant’s mother still resides in [Village 4]. His [sibling] passed away. He has not kept in contact with his mother since an incident occurred in the Solomon Islands. He has been too scared to maintain contact with anyone in the Solomon Islands.
The second applicant shares three children with the first applicant.
The second applicant completed up to grade six at school and did vocational school.
In the Solomon Islands, the second applicant worked [in Occupation 1] for five years. He then worked [in Occupation 2] for another five years before then moving to [City 1] where he worked [in Occupation 3].
In Australia, the second applicant has worked [at a workplace] but currently works in a [a different workplace].
The second applicant stated that he does not provide financial support to anyone in the Solomon Islands. When prompted about some information that was before the Department regarding substantial money transfers in the past, the second applicant confirmed that he had sent money to his mother to build a house. He believes that the house was completed when his [sibling] was still alive.
Second applicant’s reasons for leaving the Solomon Islands
The second applicant left the Solomon Islands as he had a relationship with the first applicant. The first applicant’s family wanted to kill him as he was a married man but entered into a relationship with the first applicant. He confirmed that he was culturally married to his former wife. Asked whether he paid a bride price under this cultural marriage, he confirmed that he did and that it was around SBD $[price range].
I noted in the second applicant’s protection visa application, he had referred to ‘children’ with his former wife, although he had earlier mentioned he had only one [child] with his former wife. I explained that I wanted to understand whether there was a translation or linguistic issue to consider or whether the second applicant had more than one child with his former wife. The second applicant stated that he must have gotten that wrong and confirmed that he has only one [child] with his former wife.
The second applicant met the first applicant at a park but he cannot remember the exact date of their first meeting. He approached the second applicant to speak to her and to ask her if they could be friends. The first applicant was not aware that the second applicant was married, and this is why the first applicant accepted his offer of friendship. He recalls meeting the first applicant when she was still studying. Asked whether he had met any of the first applicant’s friends during that time and whether they knew he was a married man, the second applicant stated that he had met some girls that the first applicant walked with, but they did not know that he was married at that time.
While the second applicant tried to be discreet when meeting the first applicant in public, it was difficult. Sometimes, if he saw people he knew, he would run away. Eventually, community members saw the first and second applicants out together. Subsequently, their respective families heard about the relationship.
The second applicant recalls that sometimes when he was sleeping, the first applicant’s family would barge into his room and ask for SBD $20,000, pigs and shell money. This happened in 2008.
Asked whether the first applicant’s family travelled from their village in [Village 3] to [City 1], the second applicant stated that while some of the first applicant’s family lived in the village, some also stayed in town. It was the family members in town that confronted him. He was not sure if the people who confronted him included the first applicant’s brothers as he is not familiar with her family. They could have been either her brothers or cousins. He recalls being attacked three or four times. Whenever they saw him, they would come up to him and demand money or threaten to chop off his neck. While he cannot remember the exact dates of these incidents, he recalls that they happened around the time his relationship with the first applicant was discovered in 2008.

Asked when the second applicant was confronted by the first applicant’s family members, he stated that it was around two to three months after his relationship with the first applicant commenced. I noted that the second applicant’s protection visa form mentions a very specific date [in] May 2008 when the confrontation happened. The second applicant stated that while he cannot remember the exact date, [May] 2008 was probably the right date.
Since arriving in Australia, the first applicant’s uncle, who resides in Australia, has demanded a separate lot of compensation from the second applicant. While the uncle has not specified an amount for the compensation, he has demanded it on the basis that the second applicant is with the first applicant. While it would be hard for the first applicant’s uncle to do anything to the second applicant while they are in Australia, the second applicant stated that should they meet in the Solomon Islands, he knows that the first applicant’s uncle would be able to harm if the compensation amount was not paid.
Asked when the first applicant found out that the second applicant was a married man, he stated that she found out after they came to Australia. I asked how the first applicant would not have known earlier if her own family and the second applicant’s former wife’s family had found out about the relationship while he was still in the Solomon Islands. The second applicant stated again that he told the first applicant that he was married. She must have heard stories about his marital status and she asked him about it. He then confirmed to her that he was already married.
I asked the applicant to explain how the first applicant would not have known that he was a married man while they were both still in the Solomon Islands given that her family had threatened the second applicant prior to him departing for Australia. He is not sure why her family would not have told her about him being a married man. He later stated that the first applicant’s family probably did not tell her that he was a married man, although the first applicant knew about the threats that her family made towards the second applicant.
The second applicant stated again that he did not advise the first applicant that he was a married man until he came to Australia. He recalls telling the first applicant about this approximately a year after he came to Australia in 2010. While she was a little upset, it was ‘okay in the end’. He kept his marital status a secret from the first applicant as he really wanted to marry her.
In relation to threats of harm from his former wife’s family, they did not confront him in person but sent messages through the second applicant’s friends. They advised him not to come back, otherwise they would hurt him. These threats were made about two or three times. While his former wife’s family never physically hurt him, he knows that if he returned to Solomon Islands, they would.
Asked whether the second applicant believes that they never physically hurt him while he lived in the Solomon Islands because they lived a long distance away in a different location, he stated that he believes it was because they lived on a different island.
The second applicant confirmed that in 2008 his former wife’s family asked him for SBD $10,000 in compensation because of his affair with the first applicant.
I asked the second applicant to clarify why he stated in his protection visa application that the first applicant’s family demanded compensation payment of SBD $20,000, pigs and shell money but in his interview with the delegate on 20 October 2021, he stated that it was his former wife’s family that had demanded this amount in compensation and had repeated this at least two times in interview. The second applicant confirmed that the SBD $20,000, pigs and shell money was what the first applicant’s family asked for. He stated that there must have been a misunderstanding in the interview.
I raised with the second applicant that in the protection visa refusal record, the delegate had concerns about the claim that his relationship with the first applicant commenced in 2008. I asked the second applicant his reasons for not financially supporting the first applicant if there relationship had been ongoing since 2008. There was only evidence of him providing financial support from 2015. The second applicant stated that if he did send money to the first applicant earlier, he was worried that her family would take the money from her. It was only when she expressed an interest in coming to Australia in 2015 that he sent money to her.
Asked why the first applicant did not express an interest in coming to Australia before that, the second applicant stated that he was not sure why, but when she did want to come to Australia, that is when he helped her.
I asked the second applicant if he was aware of the first applicant being harassed or harmed by anyone, including family members since the second applicant arrived in Australia in 2009, the second applicant stated that he was not sure as the first applicant had not told him anything, but it could have happened.
He did not seek help in the Solomon Islands. He did not try to relocate within the Solomon Islands as it would have been too easy for people to travel to different islands.
I raised with the second applicant the substantial sums of money that he had transferred to Mr [E], his cousin. According to the second applicant’s interview with the delegate, I understood that the money was being transferred to Mr [E] who then passed on the funds to the second applicant’s mother who was building a house at the time. The second applicant believes that the house was completed when his [sibling] was still alive and that he had made around two or three transfers via Western Union. Given that the total amount of money transferred to his cousin and mother exceeded the total compensation demands from the first applicant’s family and his former wife’s family, I asked the second applicant whether he had paid any money towards the compensation amounts. The second applicant advised that he does not have enough money to pay the compensation as all the money he makes in Australia is used to support his family. He does not have sufficient funds to send to the Solomon Islands. Asked whether he intends on paying the compensation, the second applicant stated that he was not sure because even if he were able to pay the money, he is not sure whether it would be a good or bad outcome. He does not think that the families in the Solomon Islands would accept them if they returned as he has not paid the compensation.
Asked why he was unable to use some of his earlier funds to pay the compensation, the second applicant stated that as his mother was requesting money for her house, he was sending these funds to her. Even if he had paid the compensation, he believes that they still would have harmed him as they were from Malaita and demanded shell money in addition which he did not have.
I asked the second applicant about the timing of his departure from the Solomon Islands in the context of when his passport and Australian visa were issued. Records show that his passport was issued in [2009], his [visa] was granted in September 2009 but he did not depart for Australia until November 2009. The second applicant explained that his friends who were associated with the church that organised the trip to Australia included him on that trip, although the second applicant was not connected to that church and did not attend the conference in Australia. The trip was split into two groups, and the second applicant was only able to go with the second group.

100. Asked how the second applicant was able to remain safe from around May 2008 when his relationship with the first applicant was discovered, to November 2009 when he left for Australia, the second applicant stated that he was hiding, moving around and staying with friends within [City 1].
101. I discussed with the applicant the significant delay between his arrival in Australia in November 2009 and his first attempt at lodging a protection visa application on 27 May 2015, some five and a half years later. While the first protection visa application was not valid, the second applicant then lodged his final valid protection visa application on 24 August 2017, around seven years and nine months after he arrived in Australia. The second applicant stated that he did not know about the protection visa when he first arrived. After a while, some friends told him about the visa and that is when he applied. As for the delay with relodging a valid protection visa application, the second applicant explained that he wanted to find out more about how to lodge a valid application.
102. Should the second applicant return to the Solomon Islands, he believes that he will be killed by the first applicant’s family and his former wife’s family. He stated that in the Solomon Islands, people go around killing and burning houses down. In Malaita, where both families are from, there is a lot of tension. The first applicant’s family would harm him as he entered into a relationship with their daughter or sister as a married man. His former wife’s family would harm him as he had an affair with the first applicant.
103. The second applicant stated that he was not sure if authorities in the Solomon Islands could protect him. In relation to the possibility of relocating to another area of the Solomon Islands to avoid harm, the second applicant stated that it would be hard because there are people on every single island and it is easy for people to get around.
First and second applicants’ evidence relating to the third, fourth and fifth applicants
104. The third, fourth and fifth applicants were included as dependent children on the first and second applicants’ protection visa applications and did not present their own claims nor appear at the hearing.
105. In relation to the third, fourth and fifth applicants, I noted that the first applicant had stated in her interview with the delegate that she has fears about not being able to work while looking after her three children in the Solomon Islands. She had also stated that there would be no opportunities or jobs for her children after they finish school. I invited the first applicant to let me know more about the claims relating to her children.
106. The first applicant explained that in the Solomon Islands, there is not much money. Even though some people may go to school and get good grades, they cannot find work. That is why many people come to Australia for seasonal work. She explained that if she were to return to the Solomon Islands, she would not be able to find a job and would not be able to support her children. She also believes that the schooling system in the Solomon Islands is not as strict. While children might go to school, they also go out to smoke, drink and do drugs. She does not want her children to be like that. She is of the view that after her children finish their schooling in Australia, they would have more opportunity for work.
107. I noted that the second applicant’s interview with the delegate that he stated that he was worried about returning to the Solomon Islands because if he lost his life, he worries about what would happen to his children with the first applicant. I asked the second applicant if he had any other concerns relating to his children.
108. The second applicant explained that he believes that he would be killed if he returns to the Solomon Islands. If his children go to the Solomon Islands with him, it will be harder for them as people will not like his children as they come from his relationship with the first applicant, and because he was already a married man. He said that in the Solomon Islands, if you have money, life is easier. If you do not, life is much harder. It is difficult to find work. Asked whether he believes that his three children would be specifically targeted or physically or verbally abused in any way, the second applicant stated that he believes that would happen.
Issues put to the first and second applicants for comment
109. I acknowledged the first and second applicants’ collective comments regarding their fears of the lower education standards in the Solomon Islands for the third, fourth and fifth applicants, and their fears relating to the lack of employment opportunities for themselves and the third, fourth and fifth applicants. I explained to the applicants that the lower standard in education and general economic conditions in the Solomon Islands which may result in economic disadvantage might not amount to persecution as it applies to the broader Solomon Islander population. Persecution must involve serious harm against a person for reason of their race, religion, nationality, membership of a particular social group or political opinion. Cost of living pressures, economic insecurity, insufficient income to support the applicants’ family might not appear to be directed at them for one or more of those five reasons, and might not amount to significant harm, as it impacts the wider population in the Solomon Islands.
110. In response, the first applicant stated that if she goes back to the Solomon Islands, it would be hard for her to find a job even with her qualifications as there are not many job opportunities. As a result, it would make it difficult for her to support herself, her family, her[children].
111. In response, the second applicant stated that he does not want to go back to the Solomon Islands as he is scared about the threats. He also stated that it would be hard to find and stay in any job because of those threats, which would mean that he would not be able to support his family or children.
112. I raised with the first and second applicants that I had concerns about the inconsistencies that have come up with comparing their written claims with their recorded interviews with the delegate and with the oral evidence provided during hearing. I advised that I would be outlining some examples of those inconsistencies.
113. I firstly raised an example with the first applicant. In her protection visa application, she stated that she was not harmed as no one realised that she was pregnant when she returned home. However, at the beginning of the hearing, the first applicant stated that she was physically harmed by her brothers when she returned to her family village in [Village 3]. That account then changed to there being only two incidents of threats in 2008 and 2016 occurring in [City 1]. Although I had asked the first applicant multiple times during hearing whether these were the only two threats of harm from her brothers, she had answered in the affirmative and they had threatened her from outside her aunt’s place, but then later stated there was only one event. In contrast, I also raised that after her interview with the delegate in 2001, she actively wrote a letter to the delegate providing more information about her claims. In this letter, she specifically stated that she was pulled out of bed by her family and beaten with a stick until she was half dead. This latter event was not mentioned during hearing although I had provided the first applicant multiple opportunities to outline all instances of threats or harm. I explained that these inconsistencies might impact the credibility of her claims in part or as a whole.
114. In response, the first applicant stated that she had forgotten the details. When asked if there were three incidents of threats or harm, she stated that her brothers only harassed her once. Asked whether the incident involved them pulling her out of bed. She stated she could not remember as it happened a long time ago. Although the applicant stated that there was only one incident, I reminded her of the oral evidence she provided at hearing where she spoke about a 2008 and 2016 incident. I asked the first applicant to confirm again whether these incidents happened. Her response was that it was only 2008. I asked the first applicant again whether she was pulled out of a bed by her brothers or whether they just threatened her in 2008. She stated that they were shouting at her to come out. I asked the applicant whether she was ever pulled out of a bed, and her response was that when she was leaving her house one time, they harassed her with a stick. Asked what injuries she sustained, the first applicant stated that she was able to escape quickly, so she did not sustain injuries.
115. I discussed with the first applicant that I had put to her during hearing the concerns about the claimed length of her relationship with the second applicant. She had stated that the relationship was ongoing since 2008, but that I had questioned why the second applicant was not financially supporting her or helping to fund her trip to Australia earlier so that she could seek protection. During hearing, the first applicant’s response was that the second applicant did not know much when he came to Australia, so it was only when he knew how to transfer money that he sent money to her in 2015. I explained that I might find this explanation implausible as the second applicant was sending substantial sums of money to his mother whilst in Australia. This might lead me to conclude that the first and second applicants were not in a relationship from 2008 and that their relationship may have only started in around 2015 when they met in Australia.
116. The first applicant’s response was that she had forgotten.
117. I raised with both the first and second applicants that during hearing, the second applicant had stated that he did not inform the first applicant that he was a married man until around a year after he arrived in Australia despite the first applicant’s family threatening him and asking for compensation in 2008. During hearing, the second applicant had stated that the first applicant’s family might not have told her about his marital status. However, based on the oral evidence given by the first applicant, she had stated that she found out about the second applicant’s status as a married man when the rest of the community and her family found out in 2008. I explained that these inconsistencies relate to a central part of both applicants’ claims and may cause me to have concerns about the credibility of their claims in part or as a whole.
118. In response, the second applicant stated that the first applicant could have known but she did not tell him that she knew. When they met up in Australia, that is when he told the first applicant that he was married.
119. I also invited the first applicant to make any comments in relation to this concern given that the oral evidence she had provided on this point was different. The first applicant stated that when the second applicant moved to Australia, they were both still in contact. She found out that he was married, and she asked him if it was true and if he had lied to her. The second applicant had called her and that is when she asked him. He then confirmed that he had a wife. I raised with the first applicant that during hearing she had said that she found out along with everyone else in 2008. The first applicant stated that people told her that he was a married man and when she asked him, he told the truth. Asked when the second applicant told the first applicant about being a married man, the first applicant responded by saying that she had forgotten the time. I prompted the first applicant to confirm whether it was when they were both in the Solomon Islands, the first applicant stated that it was when the second applicant was in Australia.
120. I put to the second applicant that in his protection visa application, he had stated that the first applicant’s family demanded SBD $20,000, two pigs and 3 Malaitan shell money, and SBD 10,000 was demanded from his former wife’s family. However, in his interview with the delegate, he mentioned several times that the SBD $20,000 was demanded by his former wife’s family. I noted that in hearing, the first applicant had also stated that it was the second applicant’s former wife’s family that had demanded the SBD $20,000, and that she could not remember how much her own family had demanded in compensation. I advised that there was inconsistency with the second applicant’s own evidence, but also when compared with the evidence provided by the first applicant at hearing.

121. In response, the second applicant stated that he probably got it mixed up. He confirmed that the first applicant’s family asked for the SBD $20,000, pigs and shell money, and it was his former wife’s family that asked for SBD $10,000.
122. I also invited the first applicant to comment on these inconsistencies. Her response was that she had forgotten. She had heard about the compensation demands but was not too sure.
123. I raised with the second applicant that he had stated during hearing that the [child] he shared with his former wife was born in [year]. In his protection visa application, he also mentioned that he travelled to [City 1] in September 2008 to sell [goods] for his children’s school fees. I asked the second applicant to explain why he was saving up funds for school fees when his [child] was still a [baby].
124. The second applicant responded by saying that while the child was a [baby] at that stage, he wanted to save up money to pay the fees. He did not end up giving the money to his former wife or child as he ran away after the incident in 2008.
125. I raised with the first and second applicants that the second applicant had provided oral evidence during his interview with the delegate where he stated that the first applicant’s uncle came to Australia and demanded compensation from him, which means two demands of compensation were made in Solomon Islands, and one in Australia. However, in the first applicant’s oral evidence at hearing, she stated that the compensation demands were only made when the second applicant was still in the Solomon Islands.
126. In response, the second applicant stated that the first applicant’s uncle is now in Australia and demanded that the second applicant pay compensation given that he is with the first applicant. He thinks that the first applicant forgot about that demand.
127. In response, the first applicant stated that they no longer talk to the uncle. Asked how her uncle demanded the compensation, she stated that he came and asked directly. Asked whether the first applicant had any further comments on why she did not mention her uncle’s demands for compensation, she stated she had no comments to make.
128. I put to the first and second applicants that I had concerns about the length of time it took them both to lodge protection visa applications after their relationship was discovered in 2018. For the second applicant, it took five and a half years from his arrival to attempting to lodge his first protection visa application, which was subsequently deemed invalid. When the second applicant lodged his final protection visa application which was deemed valid, this still took him over seven years to lodge from date of arrival. I raised with the first applicant that she had been in and out of Australia five times after the alleged incident happened in 2008 and it was only when she came to Australia for the sixth and final time in November 2016 that she lodged a protection visa application. I explained that these delays might raise concerns that there was no urgency to apply for protection and that the delays could go towards the credibility of their claims in part or as a whole. I also asked the first applicant why she did not take an earlier opportunity to apply for protection if her life was under threat.
129. In response, the second applicant stated that between his two protection visa applications, he wanted to get more information before sending in his final application. Asked why he did not attempt to lodge his first protection visa earlier than five and a half years from entering Australia, he stated that he did not know how to apply, nor that the visa existed. When the protection visa came up in conversation with friends, he got the idea to apply for one.
130. In response, the first applicant stated that she came in 2016 and found it hard to go home as she was pregnant. She looked online and found the protection visa form and filled it out.
131. I noted that during the hearing, the first applicant mentioned quite a few times that she had either forgotten certain details or could not remember them. I gave the first applicant the opportunity to provide reasons for her lapse in memory.
132. In response, the first applicant stated that she had forgotten some details as it happened a long time ago.
Post-hearing evidence
133. The second applicant provided a letter dated 19 June 2025 from Mr [E] of [Province 1]. I have taken this letter into consideration.
134. The letter is summarised as follows:
a.Mr [E] declares and certifies that he has known the second applicant since childhood;
b.Mr [E] knows that the second applicant was formerly a married man from [Province 1], who subsequently travelled to Australia on a [visa] [in] November 2009;
c.Mr [E] is aware that the first applicant from Malaita Province also travelled to Australia [in] November 2016 on a [visa];
d.The first and second applicants accidentally met in Australia and stayed together as partners and have been living together as a couple with three [children];
e.Upon hearing the news of the second applicant marrying the first applicant in Australia, the first applicant’s immediate family and the second applicant’s former wife’s family have reacted in fierce anger and have voiced their intention to kill both applicants once they return to the Solomon Islands at any given time;
f.Mr [E] asks the Tribunal to consider and reach an amicable decision to grant the first and second applicants permanent residency in Australia to deter them from the pre-planned harm from their respective families.

REASONS AND FINDINGS
Credibility and findings of fact
135. In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and nor does the Tribunal require rebutting evidence before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019, pages 43-44.
[3] Randhawa v MILGEA (1994) 52 FCA 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
136. The following inconsistencies related to key details provided by the first and second applicants which were relevant or central to their claim of having entered a relationship in 2008, and the claimed threats that ensued thereafter:
a.Knowledge of the second applicant’s status as a married man: The first applicant stated that she found out about the second applicant’s marital status when others in the community, including her family, found out in 2008. However, the second applicant’s oral evidence was that he only advised the first applicant that he was married around a year after he came to Australia. When this inconsistency was put to the first applicant, she then stated that she found out about his marital status when the second applicant was already in Australia;
i.I find that the first applicant’s explanation on having forgotten about these details to not be reasonable because the alleged discovery of their relationship was one of the instigating factors that led to the applicants’ respective families demanding compensation and making threats against their lives. The first applicant had also stated in her post-interview letter to the delegate that her brothers had promised her that if she was having an affair with a married family man, they would cut off her neck and throw her into the ocean. I find the second applicant’s explanation implausible that while the first applicant’s family was threatening him due to him entering into a relationship with the first applicant, they might not have told the first applicant that he was a married man in 2008. Further, both the first and second applicants stated in their own protection visa forms that the conflict with their families started [in] May 2008;

b.Threats or harm towards the first applicant: In the first applicant’s protection visa application, she stated that she had not been harmed as no one knew that she was pregnant when she returned to the Solomon Islands. During hearing, the first applicant provided unclear and changing evidence on the location, time and number of times she was threatened or harmed by her brothers. While she initially stated that her brothers hit her when she returned to visit their family village in [Village 3] in 2016, this incident then changed to [City 1] where they threatened her from outside her aunt’s home. This evidence was added to again when the first applicant stated that her brother threatened her outside her aunt’s home in 2008. In relation to the letter the first applicant provided to the delegate after the interview held on 20 September 2021, new details were raised in relation to an incident where her family pulled her out of bed and beat her with a stick until she was half dead. When these issues were put to the first applicant for comment;
i.I find that the first applicant’s explanation on having forgotten about the details as they occurred so long ago to not be reasonable. The applicant’s varied evidence from her protection visa up until the hearing resulted in her saying that there was one, two and then three incidents of threat or harm that happened to her, and then back to one. At hearing, the first applicant was given multiple opportunities to detail all instances of threats or harm, but her evidence varied throughout the hearing. When the issues were put to her for comment, she finally stated that there was one incident where her brothers threatened her from outside her aunt’s home in [City 1]. As for the incident she detailed in writing to the delegate after the interview, she specifically wrote that she was pulled out of bed and beaten by her family until she was half dead. However, when raised with her at hearing, the first applicant stated that while her brothers tried to hit her, she escaped and did not sustain any injuries;
ii.While I accept that minor details, such as exact dates can be inconsistent due to events happening a long time ago, in the absence of any other explanations from the first applicant for her lapse in memory, I cannot accept that confusion over the recall of where an incident of threat or harm from her brothers occurred (i.e in [Village 3] or [City 1]) to be plausible;
iii.I also find that the first applicant’s evidence in her post-interview letter to the delegate to contain exaggerated claims relating to her family pulling her out of bed and beating her half to death given that when this was put to her at hearing, she confirmed that while her brothers attempted to hit her, she escaped and did not sustain any injuries. These two versions of the same event are vastly different and, in my view, cannot be explained away by a lapse in memory due to the events occurring a long time ago. The first applicant voluntarily and actively wrote and offered this additional information to the delegate;
iv.Further, the first applicant was unable to provide a reasonable explanation as to why she aided her brother’s girlfriend in transferring money to the first applicant’s brother twice. This is despite the first applicant’s claim that her brother had threatened her life. The first applicant stated at hearing that she helped her brother’s girlfriend as the brother’s girlfriend worked on weekdays and was unable to go to the bank to transfer money herself. However, in her interview with the delegate, she stated that her brother’s girlfriend was unable to transfer money herself as she did not have a passport. No explanation was given by the first applicant as to why she maintained contact with her brother’s girlfriend across this two-year period, despite her brother threatening her life.

c.Claimed commencement of relationship date: The first and second applicants claimed that their relationship commenced with one another in around April 2008. Concerns were put to both applicants that there was a lack of evidence indicating that they were in a relationship from that point. Further, the above inconsistencies in evidence also negatively impact the applicants’ claimed relationship start date. As the first applicant stated at hearing that she was working in 2014 and saving money so that she could move to Australia, I raised concerns regarding why the second applicant was not providing her with financial support or contributing to the costs for her to come to Australia if they had been in an ongoing relationship since 2008. The first applicant’s response was that she wanted to save up the money herself, did not want her family to know that the second applicant was sending her money and then that the second applicant did not know how to transfer money when he first arrived in Australia. The second applicant stated that he started supporting the first applicant in 2015 as that is when she expressed her interest in moving to Australia;
i.I find the first applicant’s explanation on why the second applicant did not support her earlier to be implausible given the contradictory evidence of the second applicant’s ability to transfer money to his mother, via his cousin, after he arrived in Australia from March 2010. Further, there were around [amount] financial transactions made by the second applicant, which demonstrates his knowledge and ability of transferring funds. Given the first applicant’s circumstances that she claimed to be in a relationship with the second applicant from 2008, that she was only in employment for around a year in 2014 and that she feared harm by her brothers and the second applicant’s former wife, I am not satisfied with the reasons given for the lack of financial support from 2008 to 2014. The second applicant also appeared to be willing and able to offer financial support when the first applicant asked him for it in 2015;
ii.I also give some weight to the letter from Mr [E] which the second applicant submitted post-hearing. From this letter, it is stated that the first and second applicants ‘accidentally met’ in Australia and have since become partners and have three [children] together. This information also supports my view that the first and second applicants were not known to each other in 2008, and also came to know one another in around 2015.

137. Cumulatively, due to the above inconsistencies, I do not accept the claimed relationship commencement date of April 2008.
138. I have concerns about the delay between the alleged relationship discovery date of April 2008 and the date the first applicant lodged her protection visa application. There was a delay of around eight years and 10 months, and the first applicant was able to exit the Solomon Islands and re-enter five times between 2011 and 2016 and remain unharmed in the Solomon Islands. The first applicant’s delay in lodgement and repeated return to the Solomon Islands has led me to conclude that she did not have a subjective fear of persecution with respect to her alleged relationship with the second applicant in 2008.
139. I have concerns about the second applicant’s delay in lodging his protection visa applications. From the date of entry in Australia, the second applicant took around five and a half years to lodge his protection visa, which was found to be invalid. He then waited around another two years and three months before submitting his final protection visa which was assessed as being a valid application. This meant that his final protection visa application was lodged around seven years and nine months after his arrival in Australia. The second applicant’s delay in attempted lodgement and final lodgement of his protection visa applications has led me to conclude that he did not have a subjective fear of persecution with respect to his alleged affair and relationship with the first applicant in 2008. However, as I have accepted that the first and second applicants entered into a relationship in around 2015, I find that the delays in lodgement of their protection visas to not be significant.
140. In relation to the letter from the chief obtained by the first applicant, I do not give this letter weight as the chief was not a witness to the claimed incidents in 2008 and the letter was provided some 10 years later after the first applicant purported became friends with the chief’s daughter through social media, which led to the friend organising a telephone call between the first applicant and the chief to discuss the alleged incidents that happened in 2008.
141. In relation to the first and second applicants’ documents and letters issued by their church, as well as the letter of support from [Member A], Member of Parliament, I give these documents no weight. As explained to the first and second applicants at hearing, I can only consider evidence that is relevant to their protection claims. When asked the reasons for the provision of these documents, both applicants generally stated that they wanted to provide them to support their claims. Asked whether the applicants provided this documentation as evidence of their character, both applicants responded in the affirmative. When asked if the applicants fear harm in the Solomon Islands with respect to their Christian faith, the first applicant responded by saying that she fears harm as the second applicant’s former wife will hurt her and her children. The second applicant stated that he fears returning to the Solomon Islands as his had become friends with the first applicant, and that although most Solomon Islanders are Christians, they do not practice it. I explained to the first and second applicants that I do not doubt their character or contribution to the church and broader community but might not be able to give this church-related documentation weight as they are not relevant to their claims.
142. Throughout the hearing, both the first and second applicants gave consistent evidence regarding their concerns for their three [children]. I find that the first and second applicants’ exaggeration of facts to have been motivated by their genuine concerns for the lives of their [children] should they all need to return or relocate to Solomon Islands.
143. Considering the above, I do not accept the following claims as credible:
a.The first and second applicants were in an ongoing relationship since April 2008;
b.The first and second applicants’ relationship was discovered by community members and their respect families in around May 2008;
c.The first applicant was threatened by her brothers when they confronted her outside her aunt’s home in 2008;
d.The first applicant’s family demanded compensation of SBD $20,000, pigs and shell money from the second applicant’s family in 2008;
e.The second applicant’s former wife told her brothers and uncles of the second applicant’s affair with the first applicant [in] May 2008 which resulted in the second applicant be harmed and bashed. I note that during hearing, the second applicant confirmed that he was never physically harmed by his former wife’s family;
f.The second applicant’s former wife’s family demanded SBD $10,000 in 2008;
g.The first applicant was threatened or harmed by her brothers in [Village 3] in 2016;
h.The first applicant was threatened by her brothers when they confronted her outside her aunt’s home in 2016;

i.The first applicant was pulled out of bed by her family while she was sleeping and beaten with a stick until she was half dead;
j.The first applicant was warned by friends in 2016 that the second applicant’s former wife was looking for her and intent on killing her no matter how many years went by;
k.The first applicant’s uncle in Australia has demanded that the second applicant pay an unspecified amount of compensation given that the second applicant is in a relationship with the first applicant. As mentioned above, while this claim was raised by the second applicant, it was not raised by the first applicant when asked about who demanded compensation and where these demands were made.

144. I accept the following claims as credible:
a.The second applicant was culturally married to his former wife in the Solomon Islands;
b.The second applicant and his former wife share a child together who is around [number] years of age;
c.The first and second applicant entered into a relationship in around 2015;
d.The second applicant started to provide financial support to the first applicant in 2015
e.The first and second applicants’ first child was born on [date];
f.The first and second applicants’ [other] children were born on [dates];
g.The first and second applicants were married in Australia [in] November 2020.

Refugee criterion assessment
145. To be eligible for grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a) of the Act, the applicants must have a well-founded fear of persecution in the Solomon Islands, and owing to that fear, are unable or unwilling to avail themselves of the protection of the Solomon Islands. This requires me to be satisfied that there is a real chance the applicants would suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. An applicant may have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent.[4]
Claim 1: Fear of lower education standard and lack of employment opportunities in Solomon Islands
[4] Chan Yee Kin v MIEA (1989) 169 CLR 379.
146. In relation to the applicants’ fears of the lower education standard and lack of employment opportunities in the Solomon Islands which would negatively impact their family, I accept that the economic situation in the Solomon Islands justifies such concerns.
147. According to the International Labour Organisation and Australian Department of Employment and Workplace relations, Solomon Islands has a labour force participation rate of 55.4 per cent. The unemployment rate was recorded at 7.9 per cent, with male and female unemployment rates closely equivalent to the national rate. Youth unemployment remains a key challenge for Solomon Islands, with unemployment affecting age groups between 15 to 19 and 20 to 24 at almost double the national rate, between 14 to 16 per cent. Solomon Islands also has the lowest rates of the Pacific Island countries for youth not in education, employment, or training, at 7 per cent. Only a quarter of employment is classified as wage or salaried employees (25.3 per cent), with most of the employed persons classified as contributing family worker.[5]
[5] ‘Solomon Islands: Country Factsheet’, International Labour Organisation and Australian Government Department of Employment and Workplace Relations, 2024.
148. While I acknowledge and am sympathetic to the applicants’ concerns regarding the economic situation in the Solomon Islands, I must assess whether the socio-economic harm the applicants fear is for any of the reasons set out in s 5J(1)(a) of the Act, namely race, religion, nationality, membershi8p of a particular social group or political opinion. In the case of Applicant A v MIEA,[6] the court recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group due to their race, religion, nationality, membership of a particular social group or political opinion. As put to the first and second applicants during the hearing, the economic conditions and difficult job market in the Solomon Islands apply to the broader Solomon Islander population.
[6] (1997) 190 CLR 225 at [258].
149. Considering the above, I find that the harm feared by the first, second, third, fourth and fifth applicants are not for any of the reasons set out in s 5J(1)(a).
Claim 2: Fear of harm by first applicant’s brothers and second applicant’s former wife’s family due to discovery of relationship or affair in 2008
150. As I have not accepted that the first and second applicants commenced their relationship in 2008, I am not satisfied that the first applicant faces harm from her brothers, including being rejected by her family, or from the second applicant’s former wife’s family as a result of the alleged affair in 2008.
151. It follows that I am not satisfied that the second applicant will face harm or compensation demands from his former wife’s family or the first applicant’s brothers as a result of the alleged affair in 2008.
152. It also follows that I am not satisfied that the third, fourth and fifth applicants will be rejected or harmed by the first and second applicants’ families as a result of the first and second applicants’ alleged affair in 2008.
Claim 3: Fear of harm by first applicant’s family and second applicant’s former wife’s family due to the first and second applicants’ marriage in Australia
153. As I have accepted that the first and second applicants were legally married in Australia, I need to consider whether the applicants will face serious harm if returned to the Solomon Islands on the basis of the second applicant’s status as a man that was culturally married to another woman in the Solomon Islands.
154. Based on country information, discussed further below, I accept that the dominance of kastom law practice in the Solomon Islands can result in demands of compensation or acts of violence being inflicted where there has been an actual or perceived violation of kastom rules.
155. However, despite the findings above regarding the first and second applicants entering a relationship in around 2015 and getting married in Australia in 2020, I am not satisfied that the applicants’ circumstances meet the refugee criterion as defined under s 5H of the Act as their circumstances do not fall within any of the categories of s5J(1)(a) of the Act. I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criterion assessment
156. 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).
157. Under the complementary protection criterion, I will need to consider whether the applicants have a real risk of suffering significant harm upon return to the Solomon Islands. As per s 36(2A) of the Act, significant harm encompasses the arbitrary deprivation of life, death penalty, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.
Claim 1: Fear of lower education standard and lack of employment opportunities in Solomon Islands
158. The harm that the applicants fear in relation to lower schooling standards and economic conditions in the Solomon Islands do not fall under the types of harm listed in s 36(2A) of the Act. Further, as conditions resulting from general economic and social conditions apply to the Solomon Islander population more broadly, rather than the applicants specifically, they would not be deemed as significant harm under s 36(2B)(c) of the Act.
Claim 2: Fear of harm by first applicant’s brothers and second applicant’s former wife’s family due to discovery of relationship or affair in 2008
159. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[7] I have not accepted, for reasons set out above, that the first and second applicants would be rejected, harmed and/or demanded to pay compensation by their respective families as a result of their alleged affair in 2008, nor that the third, fourth or fifth applicants would be rejected or harmed by those same family members. Therefore, I am not satisfied that there is a real risk of the applicants being subjected to any of the kinds of harm set out in the Act.
Claim 3: Fear of harm by first applicant’s family and second applicant’s former wife’s family due to the first and second applicants’ marriage in Australia
[7] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
160. I am not satisfied that the first, third, fourth or fifth applicants are at risk of harm from the first applicant’s brothers or family members in the Solomon Islands. In making this conclusion, I have given weight to evidence relating to the first applicant having previously been in contact with her brother’s girlfriend who was residing and working in Australia from around 2016 and would have known of the first and second applicants’ relationship with one another, and also the two money transfers that the first applicant made to her brother in the Solomon Islands in November 2016 and November 2018, which occurred after the first and second applicants had entered into their relationship in around 2015. Notably, the applicants’ three children were all born prior to the second money transfer occurring in November 2018. These interactions with the first applicant’s brother and brother’s girlfriend indicate that there is a relationship between the first applicant and her brother and that she has not been rejected by her family, despite having started a relationship and marrying the second applicant who is a married man.
161. In relation to the second applicant’s fear or harm by the first applicant’s family, I give weight to country information which states that in Malaita province, premarital encounters ranked as third or fourth most common cause of community disputes, and violation frequently results in an immediate demand for compensation, usually made by the male relatives, especially brothers, of the woman who is deemed to have been affronted, with a threat of consequent violence should payment not be forthcoming. Some Malaitans asserted that kastom was being manipulated with demands for compensation dressed up as permissible customary appeals. There was a feeling that any slight breach of kastom, real or perceived, would be followed by a demand, often with overtones of violence.[8] On the basis of this country information, I find that the second applicant faces a real risk of significant harm by way of violence due to him entering into a relationship with the first applicant when he was already a married man and due to any inability to pay compensation that is likely to be demanded by the first applicant’s male family. I find that this harm would amount to cruel or inhuman treatment or punishment and degrading treatment or punishment as per s 36(2A) of the Act.
[8] ‘Justice delivered locally: Systems, Challenges, and Innovations in Solomon Islands’, Allen, M et al, The World Bank, August 2013, page 27.
162. In relation to the fear of harm from the second applicant’s former wife’s family, I have given weight to the below country information.
163. According to the University of Toronto research paper, ‘Between State and Nonstate Systems: Access to Justice in Rural Solomon Islands’, it was stated that, in tandem, the ‘formal’ justice system, made up of police, courts and the government, Solomon Islands has an ‘informal’ justice system consisting of both kastom and church leadership. Kastom is understood as ‘tradition’ or ‘customary law and refers to the cultures, social norms and practices that regulate community life and influence dispute management. Kastom is not outlined explicitly or precisely in any Solomons Island legislation. However, the constitution authorises customary law’s legal supremacy as long as it does not otherwise contradict the constitution or parliamentary legislation. Although the kastom system is most relevant and commonly used when dealing with disputes and grievances, it has become increasingly fragile and is sometimes insufficient for dealing with issues of social disharmony. While informal justice systems are the primary avenue through which disputes are mediated and/or escalated, there has historically been a lack of connection between this system and the formal justice system.[9]
[9] Najafi, S, Tat, S, Thawani, R, Ullal, S and Salardi, P, ‘Between State and Nonstate Systems: Access to Justice in Rural Solomon Islands’, Reach Alliance, July 2021, page 4.
164. In most places in Solomon Island, adultery has long been considered a serious breach of kastom. Today, adultery often leads to a raft of related offenses and grievances, most commonly gossip, threats and physical violence. Violations frequently results in an immediate demand for compensation.[10]
[10] ‘Justice delivered locally: Systems, Challenges, and Innovations in Solomon Islands’, Allen, M et al, The World Bank, August 2013, page 27.
165. On the basis of this information, the second applicant’s lack of support of his former wife and the child that he shares with his former wife, and the commencement of a new relationship with the first applicant who he has legally married in Australia, I am of the view that he would be at real risk of facing significant harm by way of threats, confrontation in public, violence and demands for compensation from his former wife’s family should he return to the Solomon Islands. As the second applicant mentioned at hearing, he currently works and spends this money on supporting his current family. Even if he were able to pay compensation, he is not certain that this would be sufficient for his former wife’s family or whether they would still carry out threats of violence and/or request him to leave the first applicant. The types of harm he would be subjected to would align with types of harm set out in s 36(2A) of the Act, namely being subjected to degrading treatment or punishment or arbitrary deprivation of life.
166. Based on the first applicant’s relationship with the second applicant who is a married man and the above country information, I am also of the view that the first applicant would be at real risk of significant harm by way of threats, confrontation in public and violence at the hands of the second applicant’s former wife and family on the basis that she entered a relationship with a married man, and now has three children with him. The types of harm she would be subjected to would align with types of harm set out in s 36(2A) of the Act, namely being subjected to degrading treatment or punishment or arbitrary deprivation of life.
167. I do not accept that the third, fourth and fifth applicants would be targeted by the second applicant’s family members given they are minors and would have the protection of both parents, as well as the first applicant’s family members.
168. Having regard to s 36(2B)(b) of the Act, I have considered whether the first and second applicants could obtain protection from the authorities in the Solomon Islands, such that there would not be a real risk that they would suffer significant harm. In this regard, I give weight to country information which states that the Royal Solomon Islands Police Force (RSIPF) is the main law enforcement agency in Solomon Islands, but it is under-funded and under-resourced.[11] Further, Transparency International in its Global Corruption Barometer Pacific 2021 report on ‘Citizens’ views and experiences of corruption’ highlights the issue of corruption with the Pacific Islands. The survey found that 27 per cent of people in the Solomon Islands think that most or all people involved in the police force are corrupt.[12] The results found 17 per cent of people who used the police service in the previous 12 months were able to bribe a member of the police force and 30 per cent of those had personal connections.[13]
[11] Solomon Islands, Global Organized Crime Index, 2023.
[12] Global Corruption Barometer, Pacific 2021, Citizens’ Views and Experiences of Corruption, Transparency International, 18 November 2021, page 54.
[13] Ibid.
169. As a result of this country information, I am of the view that the first and second applicants would not have effective protection from authorities in the Solomon Islands. Further, any protection that could be provided would not be on a 24-hour basis and could leave the first and second applicants open to threats and attacks.
170. I also need to consider under s 36(2B)(a) of the Act whether it would be reasonable for the first and second applicants to relocate to an area of the Solomon Islands where there would not be a real risk of significant harm. Reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicants and the impact upon them.[14]
[14] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.
171. I give weight to the fact that that 85 per cent of the land in Solomon Islands is customary land. It is held and accessed in accordance with traditional laws and customs passed down from generation to generation.[15] The second applicant and his former wife both come from the Western Province, making it unreasonable as an option to relocate to this province. Having regard to the second applicant’s lengthy residence in [City 1] before departing for Australia due to work opportunities there, the first applicant’s lengthy residence in [City 1] since completing her post-secondary school studies and the presence of the third, fourth and fifth applicants as minors, relocation to any other area outside of [City 1] would not be reasonable, particularly given the lower level of job opportunities outside of [City 1], and the small geographical size of the Solomon Islands and ease of travel and access which could allow the second applicant’s family to locate them.
[15] ‘Enjoying land rights in Solomon Islands’, United Nations Development Programme, 3 December 2021, Accessed 19 June
172. For the reasons given above, I am satisfied that the first and second applicants are persons in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).
173. I am not satisfied that the third, fourth and fifth applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(aa). However, I am satisfied that the third, fourth and fifth applicants are members of the same family unit as the first and second applicants for the purposes of s 36(2)(c)(i). As such, the fate of their applications depends on the outcome of the first and second applicants’ applications. It follows that the third, fourth and fifth applicants will be entitled to a protection visa provided the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa are met.
DECISION
174. The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)the first applicant meets s 36(2)(aa) of the Migration Act;

(ii) the second applicant meets s 36(2)(aa) of the Migration Act; and
(iii)the third, fourth and fifth applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first and second applicant.

T H R Baggiano
General 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.
…