2300709 (Refugee)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to refuse an applicant a Protection visa. The applicant, who identifies as a lesbian, claimed she feared persecution if returned to the Solomon Islands due to her sexual identity. The delegate had refused the visa, finding insufficient evidence of a real chance of serious or significant harm.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically "Lesbians or LGBTQI+ persons in the Solomon Islands," as defined by the Migration Act 1958 (Cth). This involved assessing whether there was a real chance of persecution, if such persecution would involve serious harm, whether it was systematic and discriminatory, and whether effective protection measures were available in the Solomon Islands. The Tribunal also considered whether the applicant could reasonably modify her behaviour to avoid persecution.

The Tribunal accepted that the applicant identifies as a lesbian and has expressed her sexuality in Australia. Drawing on country information, the Tribunal found that while same-sex sexual activity is criminalised in the Solomon Islands, enforcement against LGBTQI+ individuals is not widely reported. However, significant societal stigma, deeply entrenched homophobia, and a lack of anti-discrimination laws create a challenging environment. The Tribunal concluded that if the applicant returned to the Solomon Islands and continued to express her sexuality as she has in Australia, there was a real chance she would face significant physical harassment, discrimination, stigma, and violence, amounting to serious harm. This harm was found to be systematic and discriminatory, and the fear of persecution was considered to relate to all areas of the Solomon Islands. The Tribunal was satisfied that the essential and significant reason for her fear was her membership in the particular social group of Lesbians or LGBTQI+ persons in the Solomon Islands, that effective protection measures were not available, and that she could not reasonably modify her behaviour to avoid persecution without altering a fundamental characteristic of her identity.

Consequently, the Tribunal found that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act. The matter was remitted for reconsideration with a direction that the applicant satisfies this criterion.