2300709 (Refugee)

2300709 (Refugee) [2024] AATA 2563 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2300709
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Shahyar Roushan
DATE:26 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 26 February 2024 at 1:29pm
CATCHWORDS
REFUGEE – Protection Visa – Solomon Islands – sexual identity – a lesbian – same-sex relationships are not accepted due to religious beliefs – membership of the particular social group – Lesbians or LGBTQI+ persons in the Solomon Islands – there is a real chance that she would face significant physical harassment and significant discrimination, stigma and violence – there are not effective protection measures available – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant is [age] years old and a national of the Solomon Islands. She arrived in Australia on [date] June 2016 as a holder of a Visitor (subclass 600) visa.
On 30 November 2020, the applicant lodged an application for a Protection visa and a delegate for the Minister of Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 14 January 2023. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
In her Protection visa application form, the applicant made the following claims in response to questions in relation to her reasons for claiming protection.
She is a lesbian and being ‘attracted to another woman is punishable by death’ in the Solomon Islands. She fears harm from her parents, ‘tribe’, ‘village’ and ‘community’. She ‘could not help being a lesbian’ or ‘being attracted to another female’. When she was [age] years old, she shared her feelings with her ‘best friend’ at school and ‘the story spread like wildfire’ in her community. Her uncle threatened to kill or ‘beat her up’ if her father refused to do so. She was ‘stoned’, her house was ‘stoned’ and she was beaten severely, forcing her to cease her schooling. She was told ‘its bad spirit [to want] women and had to stone it out and beat it out.’ She reported the matter to the authorities, but they were unresponsive. She was not safe anywhere in the Solomon Islands and she also feared for the safety of her whole family. She had to leave her country in ‘secrecy’ and continues to live in fear of being recognised by ‘someone’ in Australia. She fears being stoned, beaten and killed if she were to return to the Solomon Islands.
On 3 December 2022, the applicant was invited by the Department under s 56 of the Act to provide additional information in relation to her claims. The applicant, however, did not respond to the Department’s letter.
The interview
Departmental records indicate that the applicant was not invited to attend an interview.
The delegate’s decision
The delegate, on the basis of the insufficient information before him, was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to the Solomon Islands. He was not satisfied that the applicant is a refugee as defined under s 5H(1) of the Act and found that she was not a person in respect of whom Australia has protection obligations under s 36(2)(a). He was also 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.
The review application
On 20 January 2023, the applicant applied for a review of the delegate’s decision to the Tribunal.
In her application for review, the applicant sought to explain why she had not responded to the Department’s request for additional information in relation to her claims. She stated that at the time when the Department requested the information, she was without a phone and access to her emails. When she finally succeeded in accessing her email account again, she found the Department’s decision to refuse her a Protection visa. The applicant reiterated that she is unable to return to the Solomon Islands due to her ‘circumstances’.
The hearing
On 11 September 2023, the Tribunal wrote to the applicant and invited her to appear before the Tribunal in person on 9 November 2023 at 10:00 am to give evidence and present arguments relating to the issues arising in her case.
On 22 October 2023, the applicant wrote to the Tribunal and requested that the hearing be postponed due to her study and work commitments.
The Tribunal wrote to the applicant on 23 October 2023, advising her that her request for postponement had been granted and invited her to appear before the Tribunal on 30 November 2023 at 10:00 am. The applicant was further advised that any further requests to postpone the scheduled hearing must be made in writing as early as possible and that the hearing will not be rescheduled again on the basis of work or study commitments, without further details and explanations as to why she would be unable to appear on the scheduled date and time. The applicant was advised that the Tribunal will only make changes to the scheduled hearing if satisfied that it is reasonable and there are good reasons for doing so.
On 27 November 2023, the applicant again wrote to the Tribunal to request a postponement on the basis of her study and work commitments. She stated:
I just want to inform you that I won’t be able to come and join my hearing and I am deeply sorry for the short notice, as I am a young girl who is living alone and trying to study and work to support myself on my daily living. If theirs anyway we could talk or video chat I will really appreciate it, I will be putting through my documents as soon as I’m ready with it. (sic)
29 November 2023, the Tribunal wrote to the applicant advising that her request for postponement had been refused and that the hearing will proceed as scheduled.
The applicant did not appear before the Tribunal on the day and at the scheduled time and place and the Tribunal received no further communication or correspondence from her. In these circumstances, on 30 November 2023, the Tribunal decided to dismiss the application without further consideration of that application or the information before the Tribunal.
On 13 December 2023, the applicant submitted a reinstatement request and provided the following additional information.
She is a lesbian and had a partner in the Solomon Islands. She believed everything would be fine after coming out and expressing her sexuality openly, including public displays of affection with her partner. Some of her classmates noticed their relationship. She recalled an incident in March 2015, where, after class, she and her partner went to a park called [a specified] Park for a meal. Unbeknownst to them, her maternal uncle was also in the park. In a surprise assault, her uncle kicked her from behind, leaving her breathless and on the ground. She heard someone say, ‘you put shame to our family’ (sic). Unable to stand, her partner called for help as her uncle fled the scene, especially as people started to gather around them. Following this assault, she reported the incident to the police, but the authorities ‘did not take [her] case seriously’, and no action was taken. This was not an isolated incident as her uncle attacked her again, throwing stones at her near her residence, which fortunately missed. Living in fear and feeling ostracised in a country where same-sex relationships are not accepted due to religious beliefs, impacted her well-being and her education, preventing her from completing he schooling. Consequently, she travelled to Australia to escape the ‘trauma’. She maintained contact with her partner, but that contact ceased in 2019 due to ‘misunderstandings’ caused by ‘distance’.
The applicant attached to her email a number of photographs depicting her posing with another female in the Solomon Islands.
Having considered the request, on 13 December 2023, the Tribunal decided that it was appropriate to reinstate the application.
The Tribunal invited the applicant to a new hearing, and she appeared before the Tribunal on 24 January 2024. The applicant presented her evidence in English and did not require an interpreter. Where relevant, the applicant’s oral evidence at the hearing is referred to below.
Following the hearing, the applicant submitted photographs of her attending the Hay Mardi Gras in 2023 and posing with another female, and screenshots of text messages exchanged between her and a person she purportedly was in a ‘casual’ relationship with at the time.
The relevant law
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
Analysis, reasons and findings
For the following reasons, I have concluded that the decision under review should be remitted for reconsideration.
The applicant’s delay in lodging her Protection visa application, the brief nature of her stated claims in her application form, her lack of response to the Department’s request for information and her apparent lack of urgency, as perceived by me, in appearing before the Tribunal to present arguments, initially raised some doubts in my mind regarding the credibility of her claims. These doubts, however, were dispelled following the presentation of the applicant’s evidence at the hearing.
I found the applicant’s oral evidence in relation to her sexual identity, her past experiences in the Solomon Islands, her experiences in Australia and her fears of returning to her country of nationality to be persuasive and compelling. This evidence was presented in an entirely consistent and straightforward manner. In particular, I found the applicant’s account of how, at a young age, she had realised and had come to terms with her difference and sexual identity within her small religious and conservative community in the Solomon Islands to be a genuine expression of her lived experiences.
I accept that the applicant had formed an intimate relationship with a close school friend. I accept that this friend is the same person the applicant had referred to as her ‘best friend’ in her Protection visa application and as her ‘partner’ in her correspondence with the Tribunal. I accept that whilst the nature of the relationship was kept hidden, the applicant and her partner were subjected to innuendos and verbal abuse at school due to their perceived closeness. I accept that, at that time, the applicant was residing with her mother and a maternal aunt, while her father, who had remarried, was living in Australia. I accept that the applicant was assaulted by her uncle in March 2015 while visiting a park with her girlfriend and that her uncle had again attempted to harm her physically by throwing stones at her. I accept that following these incidents, members of her tribe gathered to discuss her ‘affair’. The chief of the tribe had declared her actions ‘unacceptable’ and she was cast out of the tribe. I accept that the applicant’s mother and her aunt were disapproving of her sexual identity and orientation. She was told that she did not belong and that she had to ‘fix’ herself, as the family had become the subject of ‘hatred’ and gossip by others. Whist the applicant was not harmed physically or otherwise by other family members, I accept that she had continued to receive threats from her maternal uncle. I also accept that she lived in fear and had to keep a low profile until her departure from the Solomon Islands.
The country information sources consulted indicate that the legal and social landscape for lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) individuals in the Solomon Islands presents a complex and challenging environment. The country’s laws criminalise same-sex sexual activities, with ‘sodomy’ and ‘indecent practices between persons of the same sex’ being illegal. Such acts can result in severe penalties, including up to 14 years in prison for sodomy and up to five years for indecent practices, although there have been no recent reports of these laws being enforced against LGBTQI+ individuals. These laws, inherited from British colonial rule and retained after independence, symbolise a broader context of discrimination and stigmatisation against the LGBTQI+ community in the Solomon Islands.[1]
[1] See ‘Country Report on Human Rights Practices 2022 - Solomon Islands’, US Department of State, 20 March 2023, >
A proposal by the Law Reform Commission in 2008 to decriminalise homosexuality was met with fierce public resistance, underlining the deeply entrenched homophobia within the country. This resistance is reinforced by external influences, including churches from as far away as Nigeria sending pastors to spread anti-LGBTQI+ ideologies in the Solomon Islands and other Pacific nations.[2]
[2] See 'Why the Pacific islands are no gay paradise', Gerber, P, Gay Star News, 12 May 2014,
Despite the lack of enforcement, the mere existence of these laws contributes to a culture of discrimination and enables further acts of prejudice. LGBTQI+ individuals face considerable societal stigma, which likely deters the reporting of abuses and violence. In recent years, there have been limited but concerning reports of discrimination, verbal abuse, sexual assault, and exclusion from services directed at LGBTQI+ persons.[3] The pervasive social stigma also compels many within the LGBTQI+ community to live discreetly, avoiding public attention to mitigate the risk of verbal and physical attacks, as well as legal repercussions. The Solomon Islands lacks anti-discrimination ordinances to protect LGBTQI+ persons, and there is no legal mechanism for individuals to change their gender markers on official documents. The societal and cultural pressures effectively suppress public discussions and expressions related to LGBTQI+ issues, further marginalising the community.[4]
[3] Human Dignity Trust, n1, above.
[4] US Department of State, n1, above.
According to Equal Rights Trust:
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 their sexual orientation... Nevertheless, testimony gathered for this report indicates the existence of harassment and discriminatory violence and with discrimination in both employment and education. [5]
[5] Equal Rights Trust, n1, p 107.
The situation for LGBTQI+ individuals in the Solomon Islands is further complicated by reports of harassment by law enforcement, which undermines trust in the police and discourages reporting of violence or discriminatory acts. This issue of mistrust extends to the broader context of gender-based violence, where inadequate police responses and perceived corruption hinder justice for victims, including women and those with disabilities.[6] As noted by Equal Rights Trust:
…discrimination against women in Solomon Islands is widespread, affecting the ability of women to participate on an equal basis in many areas of life. The clearest and most severe manifestations of this discrimination come in the form of laws which discriminate against women both directly and indirectly and in the high levels of gender-based violence, both of which are legitimised by deeply negative cultural attitudes and stereotypes about the role and position of women in society.[7]
[6] See Equal Rights Trust, n1, pp 29-45.
[7] Ibid, p 29.
I accept that the applicant identifies as a lesbian woman and that she has continued to express her sexuality and sexual identity in Australia by entering into short-term same-sex relationships and participating in related community activities where she resides in country NSW, including participation in [an event].
On the basis of the evidence before me, I find that if the applicant were to return to the Solomon Islands and continue to identify as a Lesbian and express her sexuality at the same level she has done so in the past, there is a real chance that she would face significant physical harassment and significant discrimination, stigma and violence. I find that such treatment amounts to serious harm under s 5J(4)(b) of the Act. I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). I am satisfied that the real chance of persecution relates to all areas of the Solomon Islands. I am satisfied that the essential and significant reason for her fear of persecution is her membership of the particular social group of Lesbians or LGBTQI+ persons in the Solomon Islands. For the purpose of s 5LA of the Act, I find that effective protection measures are not available to the applicant in the Solomon Islands. I also find that the applicant cannot take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in the Solomon Islands as such modification would require her to alter her sexual orientation or conceal her true sexual orientation contrary to the requirements of s 5J(3) of the Act.

I find that the applicant has a well-founded fear of persecution in the Solomon Islands. I also find that the applicant has no presently existing right, however expressed, to enter and reside in any other country. Section 36(3) therefore does not apply.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Shahyar Roushan
Senior 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.
…

'Stand Up and Fight: Addressing Discrimination and Inequality in the Solomon Islands', Equal Rights Trust, January 2016, Human Dignity Trust, Solomon Islands, 2019, ‘State-Sponsored Homophobia 2017: A world survey of sexual orientation laws: criminalisation, protection and recognition’, International Lesbian, Gay, Bisexual, Trans and Intersex Association, May 2017, and
'State-Sponsored Homophobia 2020: Global Legislation Overview Update', Mendos, L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020,

[2024] AATA 2563

26 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction