2119230 (Refugee)
[2025] ARTA 1349
•2 April 2025
2119230 (REFUGEE) [2025] ARTA 1349 (2 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2119230
Tribunal:General Member T H R Baggiano
Date:2 April 2025
Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 02 April 2025 at 6:49pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – particular social group – homosexual – fear of physical assault – fear of killing – legal restriction – exclusion from church groups – internal relocation – delay in applying for protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 57, 65, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCA 437
Selvadurai v MIEA (1994) 34 ALD 347Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 November 2021 to refuse to grant the applicant a protection visa 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), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. The decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Solomon Islands, applied for the visa on 19 October 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 1 April 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and receiving country
The applicant is [an age]-year-old national of Solomon Islands.
The applicant has claimed his place of birth as Malaita province, his ethnicity as Solomon Islander and his religion as Christian.
The applicant travelled to Australia [in] March 2016 on a Visitor (subclass 600) visa.
The applicant provided a copy of the passport biodata page of his Solomon Islands passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of the Solomon Islands and there is no information before me to the contrary. I find that the applicant is a citizen of the Solomon Islands, and that the Solomon Islands is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
Protection visa application
In his protection visa application, the applicant claimed that he left the Solomon Islands to seek protection in Australia so that he does not have to return to the Solomon Islands.
In relation to his past experiences in the Solomon Islands, he stated that he had not experienced harm.
However, the applicant detailed an incident that happened to him after he arrived in Australia as summarised below:
a.He travelled to Australia as part of a youth group program doing outreach [in Region 1];
b.He came to Australia to share about Christianity and God;
c.While doing the outreach program, he was caught by his youth leader, kissing a man that he met at the program;
d.This act was not something accepted by God, family or the church;
e.The youth leaders contacted his parents to inform them of the incident and they said that upon his return to the Solomon Islands, they would be waiting for him at the airport and would bash him;
f.He experienced degrading treatment and name-calling by his fellow Solomon Islander friends and family;
g.On the day that he was meant to return to the Solomon Islands, he ran away with the help of the man that he had kissed;
h.He went to live in [Town 1] with this man;
i.He tried to contact his family to explain himself and tell them about his secret but they still hated him and disowned him;
j.Being at the outreach program and seeing how fellow Australians treated his male friend compared to how his own people treated him was an eye-opening experience;
k.They accepted him for who he was and there was no degrading treatment or social exclusion.
In relation to what he fears upon return to the Solomon Islands, the applicant stated the following:
a.The fear of violence, abuse and discrimination on the basis of his homosexuality remains in the Solomon Islands and that is why he does not want to go home;
b.In the Solomon Islands there is no law to protect homosexual people like him;
c.As a homosexual, he would have to live invisibly;
d.If he comes out as gay, he would only make things worse for himself and his family;
e.Expressing himself to the community would only lead to violence, abuse and degrading treatment;
f.Homosexual people in the Solomon Islands have no right to freedom;
g.Society would think that homosexual people deserve to be mistreated as being gay is not normal and it is a sin in the eyes of God;
h.The risk of violence and future degrading treatment remain present in the community, especially amongst his family and youth or church groups;
i.He does not want to be mistreated or feel threatened;
j.He wants to be happy and express himself or be himself without having any fears;
k.He does not think that the authorities of Solomon Islands would protect him as there is no law that will guarantee protection for homosexual people like him. He fears that he will be subjected to horrible treatment as there are no rights for gay people;
l.He does not think that he would be able to relocate within the country as there is not any other law in any other part of the country that will protect a person like him;
m.He lives a secret life and for people like him, the only thing they can do is hide themselves from being exposed because the cultural beliefs, treatment and religious situations are even worse in other parts of the country;
n.He is done hiding who he truly is. For the first time while living in Australia, he has seen how people accept LGBT people.
Applicant’s interview with the delegate
The applicant attended an interview with the delegate on 16 November 2021.The interview was conducted with the support of a Pidgin English interpreter.
During the interview, the delegate raised the following concerns with the applicant:
a.The applicant’s written application contains some words or expressions that are very similar or the same as words or expressions used in another protection visa application;
b.The applicant had stated that the conference was [in Region 1] but the documentation which was included in the applicant’s Visitor visa application indicated that the conference was [in Region 2];
c.The protection visa application was not lodged until two and a half years after the applicant arrived in Australia;
d.The applicant did not go out for social gatherings in public with his partner and had not met his partner’s friends or family.
During the interview, the applicant provided the following responses to the concerns raised:
a.The applicant was not aware of any other application that was similar to his. The contents in his protection visa form were his own words;
b.In relation to the location of the conference, the applicant confirmed that he incorrectly stated [Region 1] but that it was in fact held [in Region 2]. The situation had happened quite some time ago, hence the mistake;
c.In relation to the delayed lodgement of the protection visa, the applicant did not know about the process, nor what he could apply for to get a bridging visa. After speaking to his partner, they found out about the protection visa process and he subsequently submitted the application;
d.The applicant stated that when he and his partner moved to [Town 2], he did not have a visa that allowed him to do anything, so he chose to stay at home. He also stated that while his partner drank alcohol, the applicant himself did not consume alcohol. He said that they did go out shopping together, to the markets and to visit places together.
Following the interview, the delegate also sent a request for further information by email to the applicant. The following information was requested:
a.Confirmation of the details of the applicant’s partner, including full name, date of birth and residential address;
b.Statement from the applicant’s partner regarding their relationship;
c.Any other evidence of the relationship with his partner, for example photographs or records of correspondence.
In response to the delegate’s email for further information, the applicant submitted a letter to the delegate on 21 November 2021 stating the following:
a.The applicant’s former partner and the applicant had fallen out of contact for the past few months;
b.His former partner is generally a private person;
c.About six months ago, the applicant travelled to [Town 3] and around that time, his former partner decided that he needed to end their relationship and stay focused on his own situation;
d.The applicant suspected that his former partner had been seeing someone else as he avoided the applicant’s calls;
e.The applicant’s former partner apologised to him for it ‘having to be this way’ but asked that the applicant not contact him.
The applicant did not provide a statement from his former partner nor any evidence of the relationship to the delegate. However, he provided a letter dated 21 November 2021 from his then employer. The letter confirmed the applicant’s employment, work ethic and contributions to the company.
The delegate ultimately refused to grant a protection visa to the applicant. In their decision record, the following key points were covered:
a.The delegate had concerns that the applicant and his partner appeared to have minimal public expression of their relationship;
b.The applicant had ample opportunity at the interview to provide the Department with accurate information regarding his relationship with his former partner. However, he failed to advise of the relationship breakdown at interview and only did so after the interview. The delegate considered the information provided at interview with respect to his relationship to be misleading and that this significantly undermined his claims;
c.The delegate did not accept that the applicant met his former partner at a conference;
d.With respect to the s 57 notice which alleged that the applicant’s application bore similarities to another protection visa application, the delegate accepted the applicant’s explanation that he did not know anything about the similar application. The delegate accepted that it was plausible that the applicant did not have knowledge of any other application;
e.The delegate did not draw an adverse inference on the applicant’s mistake of stating that the conference happened [in Region 1] when it was in fact [in Region 2] as the conference took place a number of years ago;
f.The delegate found it unlikely that the applicant’s former partner who was born in Australia and spoke English would not have sought information sooner on how to apply for a protection visa;
g.The delegate did not accept that the applicant had been in a same-sex relationship between 2016 and 2021 and was unable to form a positive view of the applicant’s credibility regarding his claimed sexual orientation.
Evidence before the Tribunal
Applicant’s oral evidence
Preparation of protection visa application
The applicant’s former partner, [Mr A], assisted him with the preparation of his protection visa application.
Personal and family details
While the applicant was born and lived in Malaita province, he moved to Honiara for his primary and secondary schooling and lived with his [uncle].
The applicant confirmed that his father passed away a day prior to the hearing and that the burial was on the day of the hearing.
He has a mother and [specified family members] residing in Malaita province. His [specified siblings] are in Honiara for study and work purposes. While the family’s main place of residence is in Malaita province, they travel to Honiara from time to time.
The applicant keeps in contact only with his sister, [Ms B].
While the applicant’s father was still alive, the applicant provided financial support, particularly to support his father who was diagnosed with cancer.
After school, the applicant went on to study a [Course 1] at university.
The applicant was not employed whilst in the Solomon Islands. In Australia, he has worked at a [factory] and also at two [service 1] firms. He is currently employed by a [service 1] firm that operates [deleted].
Reasons for leaving the Solomon Islands
When asked what harm the applicant faced in the Solomon Islands, he started talking about abuse in the Solomon Islands. He said that culturally as a man, if he has done something wrong, he would get bashed or told off. I asked whether this happened to the applicant before he came to Australia, and he answered in the negative. When asked whether he was ever harmed by anyone in Solomon Islands before coming to Australia, he answered ‘no’.
Asked whether there was ever a need for him to seek help within the Solomon Islands, he answered ‘no’.
Asked whether he ever needed to move to another part of the Solomon Islands, the applicant stated that culturally a person cannot just move and relocate to another place because of tribal rules. I clarified by saying that while I understand it is difficult to relocate within the Solomon Islands, I wanted to know whether he ever needed to personally relocate within the Solomon Islands. The applicant stated that he did not.
When asked why the applicant left the Solomon Islands, he explained that he first arrived in Australia to attend a youth conference [in Region 2]. He clarified that on his original application, he mistakenly stated that the conference location was [Region 1]. I advised the applicant that I had listened to the recording of his interview with the delegate where this mistake was addressed and confirmed that I had no issues and deem that the mistake was corrected. I accept that the conference was held [in Region 2].
During the conference, the applicant met and came to know [Mr A]. They subsequently travelled and lived together in [Town 1] and then [Town 2]. They eventually lost contact.
The conference was held on around [a day in] 2016 in a hall. There were a lot of Pacific Islander and Australian people in attendance. Some attendees were from [several countries]. It was organised by a man known to the applicant as [Pastor A]. [Pastor A] was originally from [specified country] but had since settled in Australia.
It was at this conference that both [Mr A] and the applicant first met each other. The applicant recalls shaking hands with [Mr A]. From that day, their relationship progressed and they both realised that they had feelings for each other.
Given that both the applicant and [Mr A] were attending a Christian conference, I asked how they broached the topic of entering into a same-sex relationship. The applicant stated that they knew that they were breaking the religious or Christian way but it was obvious that [Mr A] also had feelings for the applicant.
The applicant explained that during the conference, both he and [Mr A] were outside of the conference hall and were kissing when one of the leaders caught them. The leader reported the incident to the applicant’s own group leader. This group leader then informed the applicant’s family of the incident. The applicant recalls feeling afraid and frightened about what would happen to him.
The applicant did not speak to his family for quite some time. It was only on [a day in] March 2020 that he spoke to his sister, [Ms B]. She acknowledged that while the applicant is her brother, she advised that she and the rest of the family were not happy with him and told him not to come back. [Ms B] stated that the family were angry at him. The applicant believed that if he were to return to the Solomon Islands, his family would kill him.
Asked whether he spoke to his father at that time, the applicant confirmed that he did not. I put to the applicant that during his interview with the delegate, the applicant stated that he had called his father as his father was ill and had confirmed that the date was [the day in] March 2020. I read out the relevant excerpt of the transcript of the interview. The applicant wanted to offer clarification on this point. He stated that he believed that the interpreter did not interpret his response correctly. He explained that he would call [Ms B] but would never speak to his father or other family members directly. [Ms B] would relay messages to him or would relay his messages to his family. His first contact with his family after the incident with [Mr A] was on [that day in] March 2020 due to hearing about his father’s illness.
I raised that the delegate had put to the applicant during interview that there were records showing transfers of money to the applicant’s father. The applicant confirmed this to be correct. He stated that he sent money to his family when his father became ill in 2020.
I noted that the transaction records from the Department showed over 40 transactions made by the applicant to his father. The records on file covered only up to September 2021. I asked the applicant why he sent money to his family even though he thought that they would kill him due to the incident with [Mr A]. The applicant explained that he sent money to assist his father with his doctor and medication costs.
Noting that the applicant only found out about his father’s illness in 2020, I asked why the applicant was also transferring money to his father from 2016 to 2019 if he thought that his family would kill him upon return. The applicant explained that he was still concerned about his father’s wellbeing. Even though his father and his family were angry at him, he still cared for them and felt a familial obligation to financially support his family. He explained that culturally even though his family were angry at him, they would still accept his money.
The applicant stated that he lived in [Town 1] with [Mr A] for a few weeks before moving to [Town 2]. In [Town 2], they lived in an apartment together. It was in [Town 2] that the applicant started having issues with [Mr A] which is what prompted him to eventually move out.
I asked the applicant whether the applicant ever met [Mr A’s] family or friends. He confirmed that he had not. He explained that [Mr A] would go out and drink with friends as he liked to socialise, but the applicant stayed at home. He stated that the reasons for not going out were initially due to his visa situation where he had no rights.
I advised the applicant that according to the Department’s Movement Records, the applicant was granted work rights on 2 July 2019. I asked if the applicant went out with his partner after that point in time. He stated that he did not as he did not drink alcohol, whereas [Mr A] did. I asked whether the applicant was more comfortable in the home and whether he and [Mr A] had different social levels. The applicant stated that he was much more comfortable being at home and that [Mr A] was much more social than he was. While he did meet some friends briefly when they came over to [Mr A] and the applicant’s home, [Mr A] and those friends would then go out shortly afterwards. As a couple, the applicant and [Mr A] did enjoy doing things together around the house and going out shopping.
Asked when and why the relationship with [Mr A] broke down, the applicant explained that as [Mr A] did a lot of socialising, the applicant started to suspect that he was seeing someone else. That is when their problems started. The applicant confronted [Mr A] about this but he did not seem to care. He simply said that ‘This is Australia’, implying that he had a right to see other people. The applicant explained that this really hurt him and so he decided to just concentrate on work.
I read out to the applicant an excerpt from the transcript of the recorded interview with the delegate which showed that the delegate asked the applicant whether he was still in a relationship with [Mr A] after having moved away to another location for work. The applicant had responded in the interview that they are still partners and still in a relationship. However, in a written response to the delegate on 21 November 2021, the applicant stated that his relationship with [Mr A] had broken down approximately six months prior and that [Mr A] no longer wished to speak to the applicant. I explained that having listened to the recorded interview, the delegate had asked for photographs of the applicant and [Mr A] as well as a statement from [Mr A]. It sounded like the delegate had assumed based on the applicant’s response that he and [Mr A] were still in a relationship. The applicant confirmed that he did in fact try to contact [Mr A] after the interview but he would not pick up. He explained that he had answered during interview that he and [Mr A] were in a relationship as he had thought that the delegate was speaking of the time where they were both living together in [Town 2]. The applicant confirmed that problems arose towards the end of his time in [Town 2] with [Mr A], hence the reason why the relationship subsequently broke down.
I raised with the applicant that from the date that he arrived in Australia [in] March 2016, it took around 31 months for the applicant to then lodge a protection visa application. I asked whether the applicant had a reason for not lodging his protection visa application sooner given that he was afraid for his life should he return to the Solomon Islands. The applicant stated that he did not know how to go about submitting visa papers. He asked and relied on [Mr A] to help him. I asked the applicant why he did not ask [Mr A] sooner. The applicant stated that he did raise his visa situation with [Mr A] but [Mr A] kept telling him to wait but did not give him a reason. The applicant explained that he was reliant on [Mr A] to explain the questions on the form to him. This is why [Mr A] was the person who helped the applicant complete his protection visa form. They sat together and completed the form together.
In relation to his sexuality, the applicant stated that he likes men. He recalls coming to this realisation in high school in the Solomon Islands and that it was difficult because same-sex attraction and relationships are not accepted culturally. He stated that homosexuality is not accepted in Melanesian culture.
In the Solomon Islands, the applicant entered into one romantic, non-sexual same-sex relationship with a classmate by the name of [Mr C]. They were both in the same class and became quite close to one another and it became clear that they both had feelings for one another. They would meet in secret and no one knew about the relationship. The relationship spanned two years when the applicant and [Mr C] were in schooling years that were equivalent to [specified grades] in Australia. The relationship came to an end due to moving to a different province.
The applicant never disclosed his sexuality to anybody in the Solomon Islands. He always felt the need to hide his sexuality to avoid bullying, shaming, harassment and harm. Culturally, people in the Solomon Islands believe that only a woman and a man should be together.
Asked how his sexuality impacts his faith, the applicant stated that he understands that the Bible teaches that relationships between the same sex are wrong but that this is inside his body and his blood and he cannot change it.
Asked whether he has been in any other same-sex relationships after his relationship with [Mr A] broke down, the applicant responded that he had not. He explained that he works in a small remote community and is focused on work. He has not been involved in any LGBTQI+ communities nor any related support networks.
Asked what the applicant thinks would happen to him if he returns to the Solomon Islands, the applicant stated that he did not wish to go back as his family would kill him. He said that he fears his family and extended family, explaining that families do resort to violence and killing if they disagree with what someone is doing. He said that it is particularly dangerous in Malaita where they kill people or men. In relation to the general community, should they learn that he is gay, culturally they would not be happy and would speak to the chief. He said that villagers do talk, they get together and can resort to hurting or killing a person.
Asked whether the authorities in the Solomon Islands could protect him, the applicant stated that he knows that if he goes back, he would surely be killed. He is not sure if the authorities could protect him as it has been a while since he has been home. However, he knows that he will be killed.
Asked whether the applicant could relocate to another part of Solomon Islands to avoid harm, the applicant stated that in order to relocate, you need permission from the tribes. You cannot freely move. He said that if he were to go back to the Solomon Islands, he would not feel good emotionally or mentally if he had to continue to live his life in secret and hide his sexuality.
I advised the applicant that I had listened to the recording of his interview with the delegate on 16 November 2021. I asked if there were any factors that impacted his ability to properly and accurately answer the delegate’s questions that day and how he found the interpreter. The applicant stated that he appeared by video and while he could see the delegate over the screen, the interpreter appeared only by phone. He found the interview ‘a little bit hard’ and he was also nervous on the day.
I explained to the applicant that one of my observations from listening to the recorded interview was that there were quite a number of questions needing to be repeated either due to audio issues or misunderstanding. I noted that the delegate had also needed to pull up the interpreter for misinterpreting one of her concerns that she put to the applicant towards the end of the interview. The interpreter had continually used the words ‘bridging visa’ instead of ‘protection visa’ in a segment of the interview. The applicant noted that he had some difficulty in understanding the interpreter as the interpreter was from Papua New Guinea whereas the applicant is from the Solomon Islands, so there are some differences in language.
I noted that the interpreter during the interview kept on asking the applicant to speak louder. I asked whether the applicant also had trouble hearing the interpreter properly over the phone. The applicant confirmed that he also had some problems hearing the interpreter.
I have taken into consideration the difficulties the applicant faced during his interview with the delegate and supporting interpreter.
Issues put to the applicant for comment
I put to the applicant that the significant number of money transfers to his father and [a sibling] might indicate that he is in Australia primarily for economic reasons to support his family because the earnings in Australia are greater. I explained that while I understand that he has a familial obligation to continue supporting his family, the general economic conditions in the Solomon Islands which may result in economic disadvantage might not amount to persecution and is something that applies to the broader Solomon Islands population. I explained that persecution must involve serious harm for reason of race, religion, nationality, political opinion or membership of a particular social group. Cost of living pressures, economic insecurity, insufficient income to support family might not appear to be directed at him for one or more of those five reasons. The applicant responded by saying that while he has been working in Australia and paying taxes and while he wants to stay in Australia to study for his future, the main reason why he applied for protection was due to his sexuality and wanting to be protected in Australia.
As discussed during the hearing, I put to the applicant again that I had serious concerns about him not disclosing to the delegate during his interview that he and [Mr A] were no longer together. It was only after he wrote to the delegate post-interview that he stated that the relationship broke down six months prior. I explained that the delegate had indicated in their decision that the information was misleading. This issue might go towards the genuineness or credibility of his claims in part or as a whole. The applicant confirmed that he was not misleading during the interview. He did not quite understand what the delegate was saying or asking. To clarify, the applicant stated that when the delegate asked whether he was still in a relationship with [Mr A], the applicant had it in his mind that the delegate was referring to their time together in [Town 2]. However, it was towards the end of the applicant’s time in that location that things did not work out. It was not the applicant’s intention to mislead the delegate in any way. He confirmed that he did reach out to [Mr A] to ask him to provide the statement and photos after the interview but [Mr A] did not respond.
I discussed with the applicant that I need to consider whether he has engaged in conduct, such as entering into a relationship with [Mr A] in Australia otherwise than for the purpose of strengthening his claim to be a refugee. I explained that if it found that he engaged in such conduct for the sole reason of strengthening his claims, then this conduct may be disregarded. The applicant stated that it is true that he had a relationship in Australia with [Mr A] but things did not work out although he wanted to be with [Mr A]. He confirmed that he did not come to the conference in March 2016 with a plan to get into a same-sex relationship so that he could put forward a protection claim.
I addressed again the delay between the applicant’s arrival in Australia in March 2016 and lodgement of his protection visa application in October 2018. This delay was around 31 months or two years and seven months after his arrival. I explained that this significant delay in applying for the protection visa and not applying at the earliest possible opportunity might go towards the genuineness or credibility of his claims in part or as a whole as it might not show a sense of urgency in needing to apply for protection. The applicant stated that the reason why there was such a delay was because he did not know which visa to apply for. While he had asked [Mr A] to help him, [Mr A] kept putting it off resulting in the delay.
Other procedural issues discussed
At the beginning of the hearing, I asked the applicant if he understood the interpreter. His answer was ‘a little bit’. I asked him to clarify what he meant by ‘a little bit’. He stated that the interpreter is from Papua New Guinea, so the language is a bit different to the language in the Solomon Islands. I asked the applicant if this meant that he did not understand most of what the interpreter had said so far. The applicant clarified that he did understand the interpreter.
After taking the applicant through the refugee and complementary protection provisions, I reminded him again that he should stop me immediately and let me know if he does not understand myself or the interpreter.
The interpreter also acknowledged that they were from a different country to the applicant but stated that they would ensure that they reclarify any questions in different ways if the applicant was not understanding the interpretation.
When the applicant was discussing his employment history, I noted that he had nominated two witnesses in his ‘Response to Hearing’ form to the Tribunal. Despite nominating the two witnesses, he stated on the form that the Member not take oral evidence from these people. I asked the applicant how he knew the nominated witnesses, [Mr D] and [Ms E]. He stated that [Mr D] is his work colleague and [Ms E] is his boss. I asked whether [Mr D] or [Ms E] know about or have anything to contribute in relation to his protection claim or whether they were nominated to be character references. The applicant confirmed that neither witness knows anything about his protection claims but that were willing to give character references. I explained to the applicant that I would be exercising my discretion not to take oral evidence from [Mr D] and [Ms E] as my role is not to make findings on his character or work ethic, but to assess his protection claims.
Towards the end of the hearing when I asked the applicant if he had anything to add to his claims, he asked whether he would need to go back to the Solomon Islands if the Tribunal decision is negative. I emphasised that I had not yet made up my mind on his case but hypothetically if I were to agree with the Department’s decision not to grant the applicant a protection visa, he would be given 35 days from the date of the Tribunal’s decision to seek judicial review or make arrangements to return to the Solomon Islands.
The applicant then asked if his employer could help him in any way. I advised the applicant to speak to his employer about exploring any other visa options but, importantly, to engage an immigration lawyer or registered migration agent. These professionals can assess his personal circumstances to determine whether there is another visa option open to him. I explained that if he is enquiring about an employer-sponsored visas, his occupation, location, qualifications and skills would all be relevant factors that a lawyer or agent would assess.
Country information
I have taken into consideration country information on the Solomon Islands.
Legislation governing same-sex activities
While same-sex sexual relations are illegal in the Solomon Islands, the authorities do not generally enforce these provisions.[1]
[1] Country Reports on Human Rights Practices for 2022 – Solomon Islands, US Department of State, 20 March 2023, page 12; ‘Solomon Islands’, Human Dignity Trust, undated.
‘Sodomy’ is a criminal offence under the Penal Code 1996, punishable with up to 14 years’ imprisonment. ‘Indecent practices between persons of the same sex’ is also an offence, with a maximum penalty of five years’ imprisonment.[2] Both men and women are penalised under this law.[3]
[2] Country Reports on Human Rights Practices for 2022 – Solomon Islands, US Department of State, 20 March 2023, page 12.
[3] ‘Solomon Islands’, Human Dignity Trust, undated.
The last reported enforcement was in 2003, when a lesbian woman was charged with ‘indecent practices’ but the outcome of the case is unknown.[4]
[4] Country Reports on Human Rights Practices for 2022 – Solomon Islands, US Department of State, 20 March 2023, page 12.
The Solomon Islands is a Pacific country that criminalises homosexuality and has deeply entrenched homophobia. In 2008, the Law Reform Commission proposed removing criminal sanctions for homosexuality, but the plan did not proceed after fierce public objection. One opponent of the reform stated that ‘legalizing gay and lesbian in the country would only encourage the breed of more’, and the Solomon Islands is a ‘long time Christian country’, that would never think of legalizing gay sex. After his failed attempt at reform in the Solomon Islands, change seems far away. Indeed, churches from as far away as Nigeria are sending pastors to many countries in the Pacific, including Solomon Islands, in an attempt to spread their anti-LGBTI ideology across the region.[5]
Lack of protection for discrimination based on sexual orientation
[5] ‘Why the Pacific Islands are no gay paradise’, Gerber P, Gay Star News, 12 May 2014.
The law does not prohibit discrimination based on sexual orientation, gender identity or expression or sex characteristics.[6]
Government views on sexual orientation
[6] Country Reports on Human Rights Practices for 2022 – Solomon Islands, US Department of State, 20 March 2023, page 12.
Several high-profile political leaders have publicly condemned LGBTQI+ people. In July 2023, Prime Minister Manasseh Sogavare stated that Solomon Islanders need to uphold their ‘Christian and cultural values’.[7]
[7] ‘No faith in rainbows’, The Island Sun, 9 July 2023.
Prime Minister Sogavare made similar homophobic comments in 2017, when speaking to a local church group against same-sex marriage.[8] In 2018, the then-governor general Sir Frank Kabui, cautioned the nation against the ‘onslaught’ of LGBTQI+ people in the Solomon Islander society.[9]
Societal perception and treatment
[8] ‘PM criticizes same sex marriage’, The Island Sun, 12 September 2017.
[9] ‘No faith in rainbows’, The Island Sun, 9 July 2023.
During 2022, there were no reports of violence against individuals based on sexual orientation or gender identity. However, the stigma surrounding LGBTQI+ issues may have hindered reporting abuses. The US Department of State similarly reports that while there were no reports of ‘open discrimination against LGBTQI+ people during 2022, a lack of reports may be due to sociocultural pressure and stigma. Sociocultural pressure and stigma effectively block any public discussion of LGBTQI+ issues.[10]
[10] Country Reports on Human Rights Practices for 2022 – Solomon Islands, US Department of State, 30 March 2023.
A transgender activist who works with the LGBTQI+ community in the Solomon Islands stated in 2022 that ‘the visibility of queer people on the ground’ in the country is ‘zero to none’.[11]
[11] ‘Queer Pacific Islanders call for greater acceptance, self-love and decriminalisation during Sydney WorldPride’, ABC News, 5 March 2022.
Reports have been located which indicate that it is difficult for LGBTQI people in the Solomon Islands to live openly due to cultural attitudes and the adverse treatment that can result from doing so. For example, an August 2017 Radio New Zealand report indicated that a gay person in the Solomon Islands is required to keep a ‘low profile’ due to risk of being subjected to verbal and physical attacks, as well as the threat of arrest. It also described homosexual people in the Solomon Islands as being subject to ‘harsh discrimination’.[12]
[12] ‘Cook bill puts spotlight on Pacific’s anti-gay laws’, Hopgood, S J, Radio New Zealand, 21 August 2017.
As a consequence of both criminalisation and social stigma, few lesbian, gay and bisexual people in Solomon Islands are open about their sexual orientation, making it difficult to gather evidence about discrimination in practice against people on the basis of sexual orientation. However, evidence gathered through interviews and focus groups in Solomon Islands indicates high levels of stigma and prejudice against people on the basis of their actual or perceived sexual orientation.[13]
[13] ‘Stand Up and Fight: Addressing Discrimination and Inequality in the Solomon Islands’, Equal Rights Trust, January 2016.
The Committee on Economic, Social and Cultural Rights has stated that the state parties to the International Covenant on Economic, Social and Cultural Rights have an obligation to ensure enjoyment of Covenant rights – including the rights to work and to education without discrimination on the basis of sexual orientation. Whilst difficult to prove in the absence of other evidence, a number of the gay men interviewed by the Trust believed that their sexual orientation had resulted in discrimination in education and employment. Two interviewees, both from Malaita, believed that being gay resulted in discrimination in receiving scholarships, something which is vitally important to a country where education is not widely or freely available.[14]
REASONS AND FINDINGS
[14] Ibid.
Credibility and findings of fact
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.[15] 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.[16]
[15] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019, pages 43-44.
[16] 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.
There were a number of concerns raised with the applicant as a result of the oral evidence he provided in his interview with the delegate, the written evidence he provided post-interview and the oral evidence he provided during hearing as previously outlined.
I have accepted the reasons that the applicant provided when responding to these concerns. In summary, the applicant provided the following reasons:
a.The delay in lodging his protection visa application was due to his reliance on this then partner, [Mr A], who was Australian-born and had the English language skills to help the applicant determine which visa to apply for and to complete his protection visa application. As the applicant was reliant on [Mr A], he could only sit down and prepare and lodge his application when [Mr A] was ready and willing to do so;
b.There was difficulty in understanding and communicating through the interpreter during the interview with the delegate as the interpreter spoke a different dialect of Pidgin English as they came from Papua New Guinea;
c.There was difficulty understanding and communicating through the interpreter during the interview with the delegate as the interpreter appeared by phone and there were audio quality issues with both the interpreter repeatedly asking the applicant to speak louder and instances where the applicant could not hear the interpreter properly;
d.The applicant’s nervousness on the day of his interview with the delegate and the above issues with the interpreter resulted in the delegate understanding that the applicant and [Mr A] were still together at the time of interview. This was later confirmed in writing to the delegate as being incorrect and that the relationship broke down six months prior;
e.Despite the applicant’s fear of his father and other family members, he continued to provide financial support to them due to familial and cultural obligation and also because his father was diagnosed with cancer during that time;
f.Despite the numerous money transfers to his family in the Solomon Islands and wanting to establish a future in Australia and to study and work in Australia, the applicant did not come to Australia for economic reasons. His key reason for applying for protection was due to his sexuality;
g.While the applicant was in a relationship with [Mr A], he had minimal public expression of the relationship due to being unlawful in Australia for a period of time and wanting to keep a low profile and due to him no consuming alcohol. The applicant is also more comfortable at home and was not as social as [Mr A].
In relation to the delegate’s concern around the applicant’s minimal public expression of his relationship, I accept the reasonableness of the applicant’s explanation as to why he did not go out on a regular basis with [Mr A]. I am of the view that a decision maker cannot impose an assumed standard or conduct that an applicant must engage in to demonstrate that they are, in fact, in a relationship. Each relationship is unique and as the applicant had explained, there were varying non-ongoing and ongoing factors that contributed to his lack of social outings with his then partner, including his unlawful status, his non-consumption of alcohol, his lower ‘social drive’ and his personal preference to remain at home.
I have considered and given weight to the difficulties in using and understanding the interpreter during the applicant’s interview with the delegate. Having listened to the recording, I observed that it was difficult for the interpreter and applicant to hear and understand each other properly and this resulted in some information, including that about his relationship status and whether or not he had direct contact with his father, being miscommunicated. There were repeated requests by the interpreter for the applicant to speak louder and also an incident whereby the interpreter misinterpreted what the delegate was saying. I give significant weight to the applicant’s oral evidence at hearing and the clarification that he provided in addressing these issues. I found the applicant to be a credible witness and he did not exaggerate any of his responses. Therefore, I have not drawn any adverse inferences to the credibility of the applicant’s claims.
Although the interpreter used during the hearing also spoke a different dialect to the applicant, I noted that the applicant was comfortable to ask for clarification whenever he did not understand a question and the interpreter was able to assist me in reclarifying the questions without too much effort. I had also provided the applicant instructions to let me know if he had any issues in understanding myself or the interpreter.
Considering the above, I accept the following as credible claims:
a.The applicant first became interested in males in high school;
b.He entered his first same-sex romantic relationship which spanned the time that he was in [specified grades] in high school;
c.The applicant came to Australia in March 2016 to attend a Christian youth conference [in Region 2];
d.The applicant met [Mr A] at the conference and their relationship progressed;
e.The applicant and [Mr A] were officially in a relationship following the conclusion of the conference;
f.The applicant and [Mr A] were caught kissing outside of the conference hall which resulted in a group leader informing his family of the incident;
g.The applicant was too fearful to return to the Solomon Islands, so he stayed for a few weeks in [Town 1] with [Mr A];
h.[Mr A] and the applicant subsequently moved to [Town 2] and lived together in the same apartment;
i.In March 2020, the applicant contacted his sister, [Ms B], given that he heard that his father was ill and diagnosed with cancer. During this time, he never spoke to any other family members but [Ms B] would relay messages to the applicant. The applicant was informed about the anger and unhappiness his family felt towards him due to the incident with [Mr A] at the conference;
j.The relationship came to an end in around 2021 when the applicant suspected that [Mr A] was seeing someone else. [Mr A] did not want to maintain contact with the applicant;
k.The applicant continued to send money to his family from 2016 as he felt a cultural and familial obligation to do so despite their anger towards him. He also felt obligated to continue supporting his father after his father was diagnosed with cancer;
l.The applicant fears that if he returns to the Solomon Islands, he will be harmed or killed by his family and extended family. If his community learnt about his sexuality, he also fears he will be harmed or killed by the community.
Refugee criterion assessment
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 applicant must have a well-founded fear of persecution in the Solomon Islands, and owing to that fear, is unable or unwilling to avail himself of the protection of Solomon Islands. This requires me to be satisfied that there is a real chance the applicant 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.[17]
[17] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Based on the applicant’s circumstances, I find that if he were to return to the Solomon Islands, he would likely return to his home area of Malaita province given that he is a single male and also because his family’s home and land are situated there. Based on the above findings, I am satisfied that there is a real chance, being a possibility that is not remote or far-fetched, that the applicant would be subjected to serious harm at the hands of his family, by society in general and authorities in the reasonably foreseeable future if he were to return to Malaita province.
I accept on the basis of the applicant’s past experiences, his level of education, socio-economic status and the above country information that there is a real chance that he will suffer serious harm by his family by way of loss of family network, familial violence including physical and verbal abuse and threats to his life, by members of society if they were to learn of his sexuality by way of discrimination in the community or in relation to education or employment opportunities, physical and verbal abuse and threats to his life, and by Solomon Islander authorities due to the criminalisation of same-sex activities in the country if he returns to his previous place of residence, Malaita province, now or in the reasonably foreseeable future. I accept that the harm may include significant physical and verbal harassment and significant ill-treatment of the applicant, such that would constitute serious harm for the purposes of s 5J(5).
In considering whether the harm the applicant fears is for reasons of his race, religion, nationality, membership of a particular social group or political opinion, I consider that it is for the reason of the applicant’s membership to the following social group:
a.Homosexual men in the Solomon Islands.
100. I consider that this group is identifiable by the characteristics of gender, sexual orientation, nationality and health status and that the common characteristics or attributes are not a shared fear of persecution. I am satisfied that the harm that the applicant fears is for reason of his membership of particular social groups for the purpose of s 5J(1)(a).
101. I accept that if the applicant were to hide his sexual identity, he would be doing so to avoid the threat of serious harm. Any modification of the applicant’s behaviour to avoid harm in the Solomon Islands for reasons of his membership of the particular social group of ‘homosexual men in the Solomon Islands’ would conflict with a characteristic that is fundamental to his identity or conscience, conceal an innate or immutable characteristic or alter his sexual identity or conceal his true sexual orientation. Therefore, he cannot be required to take steps to modify his behaviour, such as by returning to Indonesia and living discreetly to avoid the feared persecution pursuant to s 5J(3).
102. I accept on the basis of the applicant’s experiences and above country information that community and government attitudes and hostility towards the LGBTQI+ community are pervasive and underpinned by anti-gay Christian teachings, a religion followed by the majority of Solomon Island citizens[18] and are such that the real chance of persecution cannot be said to be restricted to a particular area of the Solomon Islands, and that the risks faced by the applicant would not be mitigated by relocation to another area outside of Malaita province. Although the applicant previously resided in Honiara for his schooling years, his [uncle] also resides in that area which would still put the applicant at risk of familial violence and threats due to his sexuality. Further, relocation to any other area of the Solomon Islands would require agreement and acceptance from the tribes that own that land. According to the United Nations Development Programme, 85 per cent of the land in the Solomon Islands is customary land. It is held and accessed in accordance with traditional laws and customs passed down from generation to generation.[19] This country information aligns with the applicant’s claim that he is unable to relocate to other areas of the Solomon Islands due to these customary laws on tribal lands.
[18] 2022 Report on International Religions Freedom: Solomon Islands, US Department of State.
[19] ‘Enjoying land rights in Solomon Islands’, United Nations Development Programme, 3 December 2021, Accessed 2 April 2025.
103. I am not satisfied that the applicant would have access to effective protection from harm. Country information indicates that same-sex relations are criminalised under the Criminal Code 1996,[20] the government publicly condemns LGBTQI people[21] and the laws of the country do not prohibit discrimination based on sexual orientation.[22]
[20] Country Reports on Human Rights Practices for 2022 – Solomon Islands, US Department of State, 20 March 2023, page 12
[21] ‘No faith in rainbows’, The Island Sun, 9 July 2023.
[22] Country Reports on Human Rights Practices for 2022 – Solomon Islands, US Department of State, 20 March 2023, page 12.
104. I am also satisfied that the applicant does not have a right to enter and reside in a third country and meets s 36(3).
105. I find that the applicant is a refugee as defined in s 5H(1) of the Act. Accordingly, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
106. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
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.
…
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