2120013 (Refugee)
[2025] ARTA 1517
•24 April 2025
2120013 (REFUGEE) [2025] ARTA 1517 (24 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2120013
Tribunal:General Member T H R Baggiano
Date:24 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)(aa) of the Migration Act.
Statement made on 24 April 2025 at 9:35pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – complementary protection – mistreatment by adoptive family – physical assault – fear of killing – education – internal relocation – state protection – 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, 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 2 December 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 26 March 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 23 April 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Mother A], the applicant’s biological mother. 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 Honiara, his ethnicity as Melanesian and his religion as Anglican.
The applicant travelled to Australia [in] May 2016 as a holder of a Visitor (subclass 600) visa.
The applicant provided a copy of the passport biodata page of his 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 because his adoptive family threatened to kill him due to an argument between him and his adoptive father. The argument was triggered by the applicant telling his adoptive father that he was mistreated or treated unfairly within the family home.
In relation to his past experiences in the Solomon Islands, the applicant stated the following:
a.When he was younger, he was abused by his adoptive family but he kept the issues to himself;
b.When he was [an adult], he began to talk back;
c.When the applicant had an argument with his adoptive father, his adoptive brothers stepped in and attacked him with a kitchen knife and threatened to kill him;
d.The applicant defended himself and ran away but fell and hurt his arm;
e.The applicant sought help from some friends;
f.He then travelled to Honiara to seek help from his biological mother, [Mother A];
g.[Mother A] did not think that she could protect the applicant as she is a woman. She recommended that the applicant depart Solomon Islands for Australia.
In relation to what he fears upon return to the Solomon Islands, the applicant stated that:
a.His adoptive family is still angry at him;
b.His presence in Australia has made them even more jealous because they think he wants to be ‘smart’ with them;
c.His adoptive family will try any means possible to hurt him;
d.He will be killed if he returns as his adoptive brothers claimed that the applicant wanted to hurt their father even though their father was the one who was responsible for the applicant’s upbringing;
e.He does not believe that authorities in the Solomon Islands would protect him. His adoptive father will argue that the applicant is his son which would result in the authorities not believing the applicant;
f.He does not trust the authorities as they would easily turn the case down due to money;
g.He does not believe that it would be safe to relocate within Solomon Islands as there are a lot of bad people everywhere and his adoptive family can easily ‘buy’ those people to hurt him.
Applicant’s interview with the delegate
The applicant was invited to an interview with the delegate. He attended the interview on 24 November 2021 with a support person but without an interpreter.
In the interview, the delegate raised the following concerns with the applicant:
a.The incident between the applicant and his adoptive family occurred in February 2016 which resulted in him running away from home with no possessions. However, the applicant’s passport was issued to him in [early] 2015. The delegate had concerns about how the applicant accessed his passport if he had left all of his belongings behind in his adoptive family’s home in February 2016;
b.The applicant claimed to have obtained his passport in 2015 as he was scared and being mistreated. However, it was not until the incident in February 2016 that prompted him to leave the Solomon Islands. The delegate asked why the applicant did not leave until May 2016 when he had reason to fear being in the Solomon Islands in 2015;
c.There was a delay between arriving in Australia [in] May 2016 and lodging his protection visa on 26 March 2018;
d.How the applicant managed to remain in hiding and avoid harm in Honiara from February to May 2016 although his adoptive family were so intent on finding him and killing him;
e.Why the applicant could not go to the police or any other law enforcement agency for protection given that there is quite a large police presence in Honiara.
Based on the delegate’s decision, the delegate found that the applicant is not a refugee as defined by s 5H(1) of the Act and that he is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate also found that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing evidence
In the applicant’s ‘Response to hearing notification’ form, he nominated [Mother A], his biological mother, as a witness.
Upon request by the Tribunal, [Mother A] provided the following information:
a.Signed witness statement dated 11 March 2025;
b.Copy of [Mother A’s] Solomon Islands driving licence;
c.Copy of [Mother A’s] Solomon Islands voter identification card.
In [Mother A’s] witness statement, the following key points were made:
a.[Mother A] is the applicant’s biological mother;
b.She resides in Honiara;
c.She bears full responsibility for her decision for giving up the applicant for adoption and all that he has experienced with his adoptive family;
d.Since being adopted by his adoptive family, she has witnessed cruelty, mistreatment and abuse towards the applicant where he was hurt physically, psychologically and emotionally for almost 20 years;
e.She could not bear to see him continue to experience such treatment which is why she sent him to Australia as a visitor;
f.She fears for the applicant’s life since they had already caused him serious harm and because they still plan to harm him in any way possible in the future;
g.She is of the view that her son’s return to the Solomon Islands would pose a huge risk to his life due to the threats from his adoptive family which she has heard with her own ears;
h.She remains deeply concerned for the applicant’s safety and believes that his return would put him in a dangerous situation which would be made worse due to the threats and lack of legal protection in the Solomon Islands.
Applicant’s oral evidence
Preparation of protection visa application
The applicant sought the assistance of a friend, known to him as [Friend A], to prepare his protection visa application.
[Friend A] was also from the Solomon Islands and had gone through a visa process, possibly the protection visa process.
The applicant required assistance from [Friend A] as he did not understand the protection visa process and was not able to read or write. The applicant provided the relevant information for the protection visa form to his friend verbally. His friend then input the information into the protection visa form on the applicant’s behalf. The applicant was not able to check the protection visa form before it was submitted as he did not know how to read or write but trusted that his friend provided all the information that the applicant had confirmed orally.
Personal details and family background
After the applicant’s birth, he resided in Honiara up until 2012. In 2012, the applicant and his adoptive family moved to [Town 1], [District 1] in Malaita.
The applicant was told by his biological mother that when he was around 2 years of age, he was adopted out to his maternal uncle. He believes that the reason for the adoption was because his biological mother and father had divorced.
The applicant has an adoptive father, adoptive mother and [specified adoptive siblings] who reside in [District 1].
His biological mother, [Mother A], resides in Honiara with her second spouse. The applicant’s biological father travelled between Honiara and his own village in [Province 1] but passed away a week prior to the Tribunal hearing. The applicant also has [one] biological sibling who resides in Honiara.
The applicant keeps in contact with his biological mother but lost contact with his adoptive family prior to travelling to Australia.
The applicant has been in a relationship with his girlfriend since 2017 who currently resides in Australia.
Through the support of his girlfriend, the applicant provides some financial support to his biological mother.
In relation to his schooling, the applicant confirmed that when he was around 6 or 7 years old, he attended a church-run school for 2 days each week. For the remainder of each week, he was required to help his family sell fruits and vegetables at the markets. The applicant’s adoptive brothers were able to attend the community high school. However, the applicant was only able to attend the church-run school up until the age of [age] years old. The applicant stated that he was not treated well at home and he thinks this is why he was not able to go to high school like his adoptive brothers.
Aside from helping his adoptive family sell fruits and vegetables at the markets, he did not work in the Solomon Islands.
When the applicant arrived in Australia, he assisted friends with mowing lawns and doing some gardening. However, he is not currently employed.
Reasons for leaving the Solomon Islands
The applicant left the Solomon Islands as he had an argument with his adoptive family in February 2016. The argument started after the applicant raised with his adoptive father the mistreatment he suffered at the hands of his adoptive family. The applicant only intended on exchanging words with his adoptive father but the situation escalated to a point where his adoptive father tried to hit him, followed by his adoptive brothers intervening by hitting him, accusing him of trying to kill their father and by chasing him with a kitchen knife.
The applicant was able to defend himself and avoid being stabbed by his eldest adoptive brother who was wielding a kitchen knife. The applicant fled the family home but as he was running, he fell into a fire. He confirmed that he sustained burns to his [body parts]. At hearing, he showed the scars from his burns on his [body part].
Asked whether he sought medical treatment for the burns, the applicant confirmed that his friends initially assisted him with treating his wounds through traditional medicine. They scraped bark off a specific tree and applied this to his wounds. It was only when he relocated to Honiara that he went to the hospital to get his wounds bandaged and was also treated with antibiotics.
After the applicant fled his adoptive family’s home in [District 1], he sought refuge in the home of his friends who lived about one kilometre away. After a few days, the applicant reported the incident to the police but did not receive any reference number or police report. The police did not contact him again about the incident. However, the applicant heard from a friend that his adoptive father had spoken to the police but the police did not take any action. He is of the view that no action was taken as his adoptive father would have told police that the applicant is his son and that the issue at hand was a ‘family matter’.
Asked why the applicant did not declare that he reported the incident to police in his protection visa application form, the applicant explained that while he did mention this to his friend who was assisting him with the protection visa application, his friend did not include this information in the form.
In relation to this childhood and upbringing, the applicant stated that he only came to know his biological parents at the age of [ages] years old. Growing up in his adoptive family’s home, he did not have a good upbringing as he did not feel loved. At the age of 2, the applicant was required to collect water from the river to fill up the empty drums for the [farm]. He felt as if they treated him like a servant and gave him all the jobs to do. The applicant used to clean up, cut the firewood and look after the [animals]. His adoptive family spoke badly of him and called him names as well. They told him that as he was not their real son, he would be required to do all of the work.
The applicant explained that from between [ages] years of age, he realised that the way he was treated was different to that of his adoptive brothers. In addition to the verbal abuse, there was also ongoing physical abuse. The applicant stated that he would often be hit if his adoptive family saw that something was not right or something was not done properly. This would anger them and result in the applicant being hit. He recalls that this physical abuse continued up until the age of 18 or 19 but subsided somewhat after that.
The applicant stated that when he was young, he did not have a chance to tell his biological parents about how he was being treated as they were living in Honiara. However, when they came to visit him once a year, he would tell them about the mistreatment. Although the applicant’s biological mother was made aware of the mistreatment, the applicant believes that she did not focus too much on this as she subsequently remarried. It was not until 2014 or 2015 that his biological mother realised that the applicant’s situation was serious.
In 2015, the applicant’s mother told the applicant that she would help him. She realised that the applicant was going through a lot and finally understood his situation. She realised that his adoptive family’s treatment of him was not good which made her very worried. She then assisted him in obtaining his passport in 2015.
After the argument between the applicant and his adoptive father in February 2016, he fled to his friends’ home close by to hide, reported the incident to the police and then travelled by ship to Honiara. His friends assisted in funding the ship fare.
Upon arriving in Honiara, the applicant went to his biological mother’s home. He then went to hospital in Honiara for treatment over one night and then went back to his biological mother’s home. The applicant’s biological mother then asked the applicant to stay with his aunt as she was worried that the adoptive family could easily track down the applicant if he remained at his biological mother’s home.
The applicant confirmed that he had no personal belongings on him as he had fled his adoptive family’s home. As for his passport, this had been with his biological mother for safekeeping. She kept his passport after having helped him apply for it in 2015.
Asked whether the applicant approached a pastor or another community leader to mediate the situation for him and his adoptive family, the applicant confirmed that he did not. He explained that the Solomon Islands is third world country where those types of services are not provided, unlike in Australia where they really care for and worry about people. He also stated that while his adoptive family believed in God, they did not attend church.
Asked whether the applicant’s adoptive family looked for him after he ran away from home in February 2016, the applicant stated that they did. Initially, they were not aware that he had fled to Honiara but after one month, they found out and travelled there.
While in Honiara, the applicant did not see his adoptive family but other people in the community told him that they had sighted his adoptive family. The family also approached his biological mother asking of the applicant’s whereabouts. The applicant’s biological mother told him that they were very upset and making threats towards the applicant. By that stage, the applicant’s biological mother had already moved him to his aunt’s house. Up until the time he departed for Australia, the applicant moved between his mother’s and his aunt’s homes for his own safety.
The applicant is also aware that his eldest adoptive brother has since moved to Honiara. The applicant’s biological mother does see him around and she is worried as to what this would mean for the applicant should he return to the Solomon Islands.
Asked whether the applicant’s adoptive family have tried looking for him or contacting him since he arrived in Australia, the applicant stated that they have not tried contacting him. However, via his mother who heard through people who stayed in [District 1], the applicant is aware that his adoptive family are upset that he has fled to Australia. They have threatened to kill him should he return to the Solomon Islands and have no fear of being imprisoned. While the adoptive family have not confronted the applicant’s biological mother at her home again, she has crossed paths with the eldest adoptive brother who has relocated to Honiara. He is still angry and still intends on hurting the applicant.
I discussed with the applicant that this incident between him and his adoptive family happened over 9 years ago and that he is now [age] years of age. I asked the applicant why he thinks his adoptive family would still want to pursue him for standing up to them so many years ago. The applicant stated that if he does go back, they will still hurt him as he disrespected his adoptive father. He said that Solomon Islands is a third world country and they would still be thinking about what happened in the past and what he has done to them. He believes that he will still be hurt if he returns to the Solomon Islands.
Asked where the applicant would live should he be required to return to the Solomon Islands, the applicant stated that he would stay with his biological mother in Honiara. He cannot stay with his biological father as he has passed away. He simply cannot return to his adoptive family in [District 1].
Asked whether the applicant’s late biological father had any siblings or relatives in [Province 1], the applicant stated that he is not sure as he does not really know his biological father’s side. He only knows of his paternal aunt as that is who his mother sent him to stay with in Honiara.
Asked what the applicant thinks would happen to him if he returns to the Solomon Islands, the applicant stated that his adoptive family will hurt him or find a way to kill him.
Asked why he thinks he will suffer harm or mistreatment, the applicant stated that his adoptive family are still upset with him and what happened in the past.
Asked whether the authorities could protect him in the Solomon Islands, the applicant answered in the negative. He stated that even if he reported future incidents, his adoptive father would speak to the police, bribe them and the case would be dropped. He explained that this approach is common in the Solomon Islands and that police do accept bribes. He also stated that as he is his adoptive father’s son, the police will listen to his father over him.
Asked whether the applicant could relocate to another part of the Solomon Islands to avoid harm from his adoptive family, the applicant stated that he could not as Solomon Islands is a very small place. It would be easy for his adoptive family to find him. People in the Solomon Islands like to talk and pass on information. He explained that he could not live in Honiara or in his father’s province in [Province 1] as [Province 1] is not far from Malaita and it is easy to get to these places from Honiara.
The applicant stated that he has only one thing on his mind which is that he is scared of returning to the Solomon Islands. He stated that he will face harm and he knows that his adoptive family would kill him. He does not wish to return to the Solomon Islands.
Issues put to the applicant for comment
I discussed with the applicant that the incident between him and his adoptive family took place in February 2016. He was then able to remain in hiding for 3 months between February and May 2016. After arriving in Australia, he then submitted his protection visa application on 26 March 2018, some one year and 10 months later. I explained that this significant delay in applying for a protection visa and not applying at the earliest opportunity might go towards the genuineness or credibility of his claims in part or as a whole and might not show a genuine fear of returning to the Solomon Islands.
In response, the applicant stated that when he came to Australia in 2016, he was on a Visitor visa and was not sure of what other visas he could apply for. It was only when he spoke to friends, including [Friend A], that he found out about the protection visa option. He said that prior to this he did not know who to approach to talk about visas. He was not sure how to go about it and who to see as in Australia, you need bank statements and lots of evidence of your identity in order to see people.
I explained to the applicant that I need to assess whether the real chance of persecution relates to all areas of Solomon Islands or whether he could relocate to another part of Solomon Islands, such as Honiara, where his biological mother is, and live safely. I noted that he had been able to remain out of harm’s way from February to May 2016 and that he has his biological mother and her family who could offer him support and protection.
In response, the applicant stated that after he fled from his adoptive family’s home, it was only a for a short time that he was hiding between his mother’s and his aunt’s homes. His mother was very worried about him hence why she helped him make plans to travel to Australia. He explained that if he were to return to the Solomon Islands, he would permanently be in hiding. His adoptive family would find him, harm him or kill him. This is his biggest fear and why he does not want to go back. He stated that his biological mother’s family cannot protect him because in the Solomon Islands, if there is a dispute between men, women cannot step in to intervene. The applicant also stated that he could not move to [Province 1] as his adoptive family could still find him there and harm or kill him.
I acknowledged the evidence that the applicant provided during hearing regarding his adoptive family mistreating him. When this sort of treatment was being inflicted upon him, particularly as a child, I acknowledged that he was in a vulnerable position with limited help. I explained that I do not wish to diminish the hardship he faced, however, he is now [age] years old and an independent adult. I explained that I need to assess whether the harm he fears amounts to serious or significant harm and whether there is a real chance of this happening in the reasonably foreseeable future. I stated that I might have concerns that due to his age, the incident with his adoptive family having occurred more than 9 years ago and because of his biological mother and her family being willing to help him, that he is no longer of adverse interest to his adoptive family and there is not a real chance that they could harm him.
In response, the applicant stated that it does not matter how long it has been. During his argument with the adoptive father, his adoptive brothers believed that he was going to kill the father and that is why they have retaliated and hurt the applicant. The brothers have all grown up as well and are strong, so they could easily hurt or kill the applicant. He explained that even when he was young, he was receiving the same sort of treatment, so he knows that this will not change. As a result of having an argument with his adoptive father, things will be worse. He stated that he does not think there could be a peaceful resolution, especially as his biological mother has told him that they are still upset. Around 2 or 3 months ago, she passed on information to him indicating that they are still upset. Further, generally in the Solomon Islands, it is quite normal for people to argue and fight and police will not take action.
Witness’ oral evidence
The applicant’s biological mother, [Mother A], appeared before the Tribunal by telephone on the day of the hearing to give evidence.
[Mother A] confirmed that she could speak in English and did not need an interpreter. After a brief exchange with [Mother A], I was satisfied that her English language abilities allowed for a discussion without the assistance of an interpreter. [Mother A] did advise that there was a cyclone and heavy rain in the Solomon Islands and required me to repeat a number of my questions until she could hear them.
[Mother A] provided the following evidence at hearing:
a.She adopted out the applicant to her own brother, [Mr A], when the applicant was around 2 years old;
b.There was no documentation to prove the adoption as it was not a legal adoption but rather a customary adoption;
c.She adopted out the applicant as she had divorced her first husband and subsequently remarried. She did not know whether her new spouse would love the applicant or not. This is why she gave him up for adoption;
d.[Mother A] was born in [Town 1 variant], Malaita Province but current resides in Honiara;
e.Her sister and some of her cousins also reside in Honiara;
f.Since the adoption, [Mother A] came to visit the applicant and she then heard about the way they were treating him;
g.The mistreatment was in the form of withholding education from him and using him as a slave to work for the family. They mistreated him like a slave;
h.The adoptive family treated him very badly. They treated him inhumanly and [Mother A] simply wanted the mistreatment to stop;
i.While [Mother A] had some words for the adoptive relative in relation to their treatment of the applicant, they continued to mistreat him;
j.[Mother A] did not think that it was an option for her to take the applicant back into her home as she feared that her new spouse may not love him and/or treat him the same way that his adoptive family was treating him. This is the reason why [Mother A] wanted the applicant to escape to Australia;
k.In 2015, [Mother A] assisted the applicant in obtaining his passport;
l.After the argument that the applicant had with his adoptive father, he managed to escape and stayed with [Mother A];
m.[Mother A] was worried for the applicant’s safety as she could not protect him as a female family member, and recommended that he hide at his paternal aunt’s home;
n.[Mother A] recalls the adoptive family coming to her home in Honiara to ask of the applicant’s whereabouts;
o.Since the applicant has moved to Australia, [Mother A] is aware that the adoptive family is still looking for him. The eldest adoptive brother lives near [Mother A] and she is aware that they will continue to hunt for the applicant;
p.[Mother A] does not believe that the police can protect the applicant as they do not maintain law and order. She is of the view that this puts her son’s life at great risk. Although the incident was reported to the police, nothing happened.
[Mother A] became very emotional when giving evidence. She said that she hurts deeply for her son and feels responsible for what has happened to him. She stated that she does not want him to come back to the Solomon Islands as his life is at risk. She feels sorry for her son and wishes for him to remain safe in Australia.
Country information
I have taken into account a range of country information on the Solomon Islands as set out below.
Effectiveness of police force
The Royal Solomon Islands Police Force (RSIPF) is the main law enforcement agency in Solomon Islands, but it is under-funded and under-resourced.[1]
[1] Solomon Islands, Global Organized Crime Index, 2023.
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.[2]
[2] Global Corruption Barometer, Pacific 2021, Citizens’ Views and Experiences of Corruption, Transparency International, 18 November 2021, page 54.
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.[3]
Conflict between justice system and customary law
[3] Ibid.
In tandem with 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 understand as “tradition” or “customary law” and refers to the cultures, social norms and practices that regulate community life and influence dispute management there. The kastom system is the local rule system typically equated with the authority and legitimacy of local “chiefs”, both individually and collectively. Kastom is not outlined explicitly or precisely in any Solomon Islands legislation. However, the constitution authorizes customary law’s legal supremacy as long as it does not otherwise contract 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, such as substance abuse and land disputes. 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.[4]
Treatment of children
[4] Najafi, S, Tat, S, Thawani, R, Ullal, S, Salardi, P, Between State and Nonstate Systems: Access to Justice in Rural Solomon Islands, Reach Alliance, July 2021, page 4.
Children described home as a place they sometimes feel scared and unsafe. Existing data shows a high rate of violence in the home, with 86 per cent of children aged 2-14 years experiencing violent discipline in the past month.[5]
[5] Doel-Mackaway, H, Gilbert, K, Low, I, Ma’u Fatiaki, K, Maetala, R, Pakoa, A and Yamba, A, Regional Child Protection Situational Analysis – Pacific, Save the Children, 2024, page 51.
Stakeholders and caregivers described violent discipline as legally and socially accepted within the home (and other settings). There are slightly higher rates of violent discipline against boys, children aged 5-9 years, children living in rural areas, children whose mothers have lower educational attainment and the four poorest quintiles.[6]
[6] Ibid.
Children make a significant contribution to household labour in Solomon Islands, raising concern among participants with respect to its implications for children’s education. Household survey data show that three out of five children (61.6 per cent) aged 5-11-year-olds, and one in ten 12-14-year-olds (11.1 per cent) are engaged in child labour.[7]
[7] Ibid, page 52.
Violence against children can be seen as part of the intersection of gender norms relating to men’s and women’s behaviour and roles, and to the normalisation of men’s violence against women and children in their household. Children in this context have little status in the family or community.[8]
[8] Ibid, page 54.
Factors that left children more vulnerable to violence included, living away from parents or in a single parent family, being out of school, experiencing family violence, disability, having caregivers who use drugs and alcohol and children who identify as LGBTQI+.[9]
[9] Ibid, page 56.
The analysis of the child protection system showed significant progress in establishing the legislative and police framework related to child protection, with further work necessary with respect to corporal punishment, child marriage, child labour and cyberbullying. Child protection response services have expanded reach to the provincial level, and collaboration between partners in Honiara has strengthened through SAFENET, however, human and financial resources limit the availability and accessibility of these services in rural areas, and their accessibility to children in Honiara.[10]
[10] Ibid, page 57.
Notwithstanding the progress made with regard to legislation and policy implementation in the Solomon Islands, there remain a number of key legislative gaps with respect to child protection:
a.While physical violence is recognised as a ground for care and protection orders, corporate punishment in the home, school and other care settings that does not cause injury is “reasonable” by a parent or teacher is legally permitted;
b.Child labour has a minimum age for work set at the age of 12 years.[11]
REASONS AND FINDINGS
[11] Ibid, pages 57-58.
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.[12] 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.[13]
[12] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019, pages 43-44.
[13] 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.
I found the applicant and his biological mother to be credible witnesses and I acknowledge the difficulty the applicant faced in articulating his claims during his interview with the delegate when this interview was conducted without the assistance with a Pidgin English interpreter.
With respect to the significant delay between the applicant arriving in Australia in May 2016 and lodging his protection visa in March 2018, I accept the reasonableness of his explanation in that he was reliant on others to direct him to the most appropriate visa option and to assist him in preparing and lodging his application. I have taken into account the fact that the applicant could not read or write and was heavily reliant on others to share information about the visa process and prepare the protection visa application. I have also taken into account the fact that the applicant’s formal education was withheld from him, resulting in him only completing several years of primary school on a part-time basis. I have not made an adverse finding in relation to the delayed lodgement of the applicant’s protection visa application.
During the applicant’s interview with the delegate, the delegate raised concerns regarding the applicant’s account of the incident with his adoptive father and how he fled the home without any belongings but then somehow managed to be able to apply for a visa to Australia using his existing passport. I have accepted the applicant’s evidence at hearing that after his biological mother helped him obtain his passport, she kept the passport in her possession until her son needed it.
In relation to the issue the delegate raised with the applicant with respect to his ability remain safe from his adoptive family from February to May 2016, I accept the applicant’s evidence that he was in hiding between his biological mother and aunt’s households. This was further corroborated by the oral evidence given by his biological mother during hearing. The period of time that the applicant was in hiding was only 3 months. As such, I find that the applicant’s ability to remain in hiding from his perpetrators to be plausible.
With respect to the delegate’s issue that the applicant could have sought help from the police force in the Solomon Islands due to the large police presence in Honiara. I do not accept that the applicant would have effective state protection simply based on the large police presence in Honiara. The large police presence in Honiara would need to be considered in the context of Solomon Islander society which is entrenched in customary practices and beliefs that encompass violence or violent discipline against children at home and a reluctance by authorities to get involved with ‘family issues’. As outlined by the country information set out above, children have little status in the family or community.[14] While the applicant is now an adult, I am of the view that his adoptive status has resulted in him receiving worse treatment within his adoptive home which was exacerbated by his lack of support networks and such violent discipline is an accurate predictor of the action that his adoptive family seek to inflict on him for ‘disrespecting’ them.
[14] Ibid, page 54.
In relation to the number of years that has passed since the applicant’s adoptive family attempted to harm him and the fact that he is now an independent adult, I have given weight to the applicant and his mother’s consistent evidence that the applicant’s adoptive family have still shown an adverse interest in him.
Considering the above, I accept the following claims as credible:
a.The applicant was adopted by his maternal uncle at around the age of 2 after his biological parents divorced;
b.His biological mother remarried and feared that her new spouse would not accept the applicant;
c.The applicant got to know his biological parents when he was around [ages] years of age;
d.Apart from attending a church-run school on a part-time basis up until the age of [age], his secondary education was withheld from him;
e.From the age of 2, his adoptive family treated him like a servant and he was required to do most of the work in and around the house, and sell fruit and vegetables in the market;
f.The applicant would withhold some of the funds he raised from selling produce so that he could support himself;
g.The applicant endured verbal and physical abuse from his adoptive family throughout his childhood and adulthood while he lived with them;
h.While the applicant told his biological mother of the way he was being treated, she did not realise how serious the situation was until around 2014 or 2015;
i.In 2015, the applicant’s mother helped the applicant obtain a passport and kept this passport in her possession;
j.In around February 2016, the applicant had an argument with his adoptive father as he spoke up about the way that his adoptive family had mistreated him;
k.The applicant’s adoptive father attempted to hit him. The applicant’s adoptive brothers believed that the applicant was disrespecting the man who had raised him and was trying to kill him, resulting in them stepping in to hit the applicant with one brother trying to attack the applicant with a knife;
l.The applicant was able to defend himself and ran away but injured himself by falling into a fire which left him with burns on his arm and leg;
m.The applicant hid at a friend’s place nearby and several days after, reported the incident to the police. However, the police took no action;
n.The applicant treated his wounds with traditional medicine but later attended a hospital in Honiara for treatment;
o.In Honiara, the applicant hid himself between his mother and his aunt’s homes;
p.The applicant’s adoptive family found out that he had relocated to Honiara and came to look for him but were not successful;
q.The applicant’s mother made arrangements for him to obtain a Visitor visa and flee to Australia in May 2016;
r.One of the applicant’s adoptive brothers now resides in Honiara;
s.The applicant’s mother has stated that the applicant is still of adverse interest to his adoptive family.
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 herself 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.[15]
[15] 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 Honiara given he has been displaced from his adoptive family’s home in [District 1]. 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 by his adoptive family in the reasonably foreseeable future if he were to return to Honiara.
I accept on the basis of the applicant’s past experiences and circumstances, including being a victim of child abuse which developed into general verbal, physical and psychological abuse even in his adult years, his lack of education, socio-economic status, lack of substantial familial ties during his childhood and country information that there is a real chance that he will suffer harm at the hands of his adoptive family by way of verbal and physical abuse including threats and actual attempts on his life should he return to Honiara. I accept that the harm may include physical and verbal harassment, significant ill-treatment and a threat to the applicant’s life or liberty, such that would constitute serious harm for the purposes of s 5J(5).
However, even given the findings made above, I am not satisfied that the applicant’s circumstances meet the refugee criterion as defined in s 5H of the Act as the applicant’s circumstances do not fall within any of the categories of s 5J(1)(a) of the Act. Therefore, I find that s 36(2)(a) of the Act is not met.
Complementary protection criterion assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
Under the complementary protection criterion, ‘significant harm’ is exhaustively defined in s 36(2A). A person will suffer significant harm if they will be arbitrarily deprived of their life, the death penalty will be carried out on the person, the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
There are a number of factors that elevate the applicant’s risk of being harmed by his adoptive family. These are namely his adoptive status, his action of daring to stand up to his adoptive family due to mistreatment during his childhood and adulthood, his lack of long-standing tribal or family connection with his biological family, the recent death of his biological father hence further removing another branch of his family network, the adoptive family’s continued interest in the applicant’s whereabouts and determination to carry out family retribution and his adoptive brother’s move to Honiara.
I have accepted the significant harm experienced by the applicant from the ages of [age] to [age] while living with his adoptive family, including the incident of February 2016 which resulted in the applicant being attacked by the male members of his adoptive family, and being burned when he ran away. Through years of abuse and neglect, the adoptive family has shown its propensity to inflict physical and psychological harm to the applicant in the past.
100. In all the circumstances, I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to the Solomon Islands, there is a real risk that he will suffer significant harm either through the arbitrary deprivation of life, cruel or inhuman treatment of punishment or degrading treatment or punishment.
101. I need to consider whether the applicant could obtain effective protection from authorities in the Solomon Islands such that there would not be a real risk of significant harm. I have accepted the evidence before me that the applicant sought assistance from the police but no action was taken, and his belief that because the issues arose within the adoptive family household, police would not take an interest in resolving ‘family matters’. In addition, and as covered by the above country information, there is a level of distrust of the police force in the Solomon Islands due to corruption and bribery. Therefore, I find that the applicant could not obtain effective protection from authorities in the Solomon Islands such that there would not be a real risk that he would suffer significant harm.
102. I also need to consider if the applicant can reasonably relocate to an area of the country where there would not be a real risk of the applicant suffering significant harm as per s 36(2B)(a) of the Act. While the applicant could relocate to Honiara where his biological mother resides, as expressed by his biological mother during hearing, she does not believe that she could provide the applicant with protection given her status as a female and because she does not know if her new spouse would accept the applicant. Due to the applicant’s adoptive status, the death of his biological father, not having long-term and strong ties with any particular family network with sufficient male presence and his adoptive brother having relocated to Honiara, relocation would not do away with the real risk of the applicant suffering significant harm. Relocation to any other area outside of [District 1] or Honiara would not be possible given 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.[16]
[16] ‘Enjoying land rights in Solomon Islands’, United Nations Development Programme, 3 December 2021, Accessed 24 April 2025.
103. I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Solomon Islands, there is a real risk that he will suffer significant harm.
104. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
105. 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)(aa) 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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