2301581 (Refugee)

[2025] ARTA 1757

2301581 (REFUGEE) [2025] ARTA 1757 (16 JULY 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2301581

Tribunal:General Member D Younger

Date:16 July 2025

Place:Brisbane

Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:

·s 36(2)(a) of the Migration Act.

Statement made on 16 July 2025 at 2:33pm

CATCHWORDS
REFUGEE – protection visa – Solomon Islands – particular social group – women – domestic violence by husband – long-term physical harm and threats to kill – sisters-in-law provoking arguments between applicant and husband – medical treatment but no report to police – medical reports and supporting statements – late claims and provision of evidence – limited understanding of requirements and requests, and no representation – country information – prevalence of domestic and gender-based violence – cultural bride price and marriage, patriarchal attitudes and reluctance to report – domestic violence criminalised and protection orders available but police and judiciary poorly resourced and inefficient – small country and widespread customary land ownership – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J, 5L, 36(2)(a), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMI (2000) 201 CLR 293
Kopalapillai v MIMA (19980 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIEA v Respondent A (1995) 57 FCR 309
MIMA v Khawar (2002) 210 CLR 1
Morato (1992) 39 FCR 401
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs[1] (the Department) on 28 January 2023 to refuse to grant the applicant a protection visa (delegate’s refusal decision) under s 65 of the Migration Act 1958 (Cth) (the Act).

   [1] Now known as the Minister for Immigration and Multicultural Affairs.

2. The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application, which was lodged on 8 February 2023 in the Administrative Appeals Tribunal (AAT). On 14 October 2024, the 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. This decision and statement of reasons is made by the Tribunal.

3. The Tribunal is satisfied that the applicant has lodged a valid review application.

4. The applicant, who claims to be a national of Solomon Islands, applied for the visa on 26 February 2020. 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 as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa in the same class as that applied for by the applicant under ss 36(2)(b) or 36(2)(c) of the Act.[2]

   [2] Delegate’s refusal decision, pg 5.

5. The applicant appeared before the Tribunal on 19 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Solomon Islands Pidgin and English languages. The applicant was self-represented in relation to the review.

6. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criteria or complementary protection criteria of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

   CRITERIA FOR PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

12. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

13. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

14. 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.

15. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[3]

    Mandatory considerations

    [3] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].

16. 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, 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

17. The applicant claims to be a [Age]-year-old[4] Solomon Islands citizen, born in [Location 1], [Province], Solomon Islands[5] and of Melanesian ethnicity and [Christian denomination] religion.[6]

    [4] Based on her Date of Birth in passport.

    [5] PVA Q13; passport provided with PVA.

    [6] PVA Q29-Q30.

18. The applicant arrived in Brisbane, Australia [in] January 2020 having ‘legally’ departed [Town 1], Solomon Islands, on the same date, using her Solomon Islands passport issued [in] 2019 (expiry [in] 2029), and arriving on a ‘visitor’ visa.[7]

    [7] PVA Q43-Q48.

19. The applicant lodged her PVA on 26 February 2020, nearly 2 months after her arrival date.

20. The applicant provided a copy of her passport to the Department as part of her PVA, and the delegate accepted that the applicant is a citizen of the Solomon Islands.[8] There is no information before the Tribunal indicating otherwise. The Tribunal therefore finds that the applicant is a citizen of the Solomon Islands, and that is her receiving country for the purposes of assessing her claims for protection.

    [8] Delegate’s decision record pg 1.

    Evidence considered in this review

21. The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal with respect to her claims for protection, which include, but are not limited to, the following documents considered in the review:

    ·     Applicant’s protection visa application (PVA) lodged 26 February 2020 together with:

    o   a copy of her passport

    o   medical report from [Medical service] dated [January] 2020

    o   handwritten responses to Part C, questions 76-83 of the PVA

    ·     Letter from Department to applicant dated 19/12/22 requesting further details and information pursuant to s 56 of the Act

    ·     Department’s decision, titled Protection Visa Decision Record, dated 28 January 2023

    ·     Application for review to the Tribunal dated 8 February 2023

    ·     Pre-hearing information form signed by the applicant and dated 10 March 2025

    ·     Copy of pages from applicant’s ‘medical record book’ – hospital/Dr not cited – sent by email from applicant dated 13 March 2025 – various dates over period of 2011 to 2019

    ·     Response to hearing notice signed by applicant and dated 23 April 2025

    ·     Received by email from applicant on 17 May 2025:

    o   Statement of applicant, undated and unsigned

    o   Letter from [Ms A], dated 14 January 2025

    o   Letter from [Ms B], dated 25 January 2025

    o   Letter from [Ms C], dated 14 March 2025

22. It was confirmed by the applicant at the hearing that there was no further material to be relied upon, and that her sister [Ms D] was not present to give evidence as earlier indicated in her written material.

    Evidence before the Department

    PVA

23. In the PVA, the applicant stated ‘no’ to questions as to whether she received assistance from an interpreter or anyone else to complete the application.[9] She said she spoke, wrote and read English, Pidgin, Mother tongue ([Language]).[10]

    [9] PVA Q5, Q11.

    [10] PVA Q26.

24. In relation to her marital status, the applicant stated ‘separated’ and provided dates of 20 January 2005 to 11 October 2018 in [Town 1], Solomon Islands.[11]

    [11] PVA Q32.

25. With respect to her family, the applicant referred to her parents who were both Solomon Islands citizens,[12] but did not refer to any other family members.[13] In relation to contact with her family members, she said: ‘Contact my families through [Social media], maybe four times a month, they are in [Town 1]’.[14]

    [12] PVA Q17-Q18.

    [13] PVA Q39-Q40.

    [14] PVA Q41.

26. The applicant stated she attended primary and secondary school in [Province] from [Year] to [Year].[15]

    [15] PVA Q72.

27. In relation to previous employment, the applicant provided the following history:

    ·     [Year]-[Year]: Never worked – school

    ·     2003-2007: [workplace 1], ‘sells person’, [Town 1]

    ·     11/2007-2/2015 – [Company 1], [workplace 2], ‘sells person’, [Town 1]

    ·     03/2015-12/2019 – [Company 2], [workplace 2], ‘sells person’, [Town 1]

    ·     01/2020 – current – never worked – stay with friends, [Town 2].[16]

    [16] PVA Q71.

28. She stated she was not currently employed and her occupation as ‘housewife’.[17]

    [17] PVA Q69, Q31.

29. In relation to her residential history, the applicant provided the following history:

    ·     [Date] to [Month Year] - [Province], Solomon Islands

    ·     October 2002 to December 2019 – [Town 1]

    ·     From January 2020 - [Town 2], Queensland.[18]

    [18] PVA Q68.

30. She provided no international travel history.[19]

    [19] PVA Q58.

31. In relation to the question of why she left the Solomon Islands, the applicant stated:

    ‘The main reason why I leave Solomon Islands was I have being suffering from domestic violence from my husband. This have been going on since I first got pregnant with my first child up till when I left Solomon Island to come here to Australia.

    The second reason why I want to leave Solomon Islands is the been proverking everytime cause by my sister-inlaws that stirs up argument between me and my husband which leads up to beating and cutting to my body by my husband. I do not have any freedom to do anything or talk to any other people; I can’t live like this for ever.

    The third reason why I choose to come to Australia is I really need the freedom of doing things and a peace of mind and a fresh start with my life; I heard about how Australia are dealing with domestic violence in which they protect their women against domestic violence and I always wanted to be feel safe and treated better and to be far far away from husband.’ [20]

    [20] PVA Q76.

32. In relation to the question of whether she had experienced previous harm, the applicant stated:

    ‘Yes, my husband have beating and cutting me up which cause some dislocation of my [body part 1] and scares to my body. I have been mentally affected that really causes a lot of fear in me keeping in my head that fear of my husband is around watching everything I do which cause me not to go out from the house to talk to people, moreover everytime he beat me up I would thought this is the last time I would live and hope he would just do it quick I can’t take this pain anymore.’[21]

    [21] PVA Q78.

33. In relation to the question of whether she sought help after the harm, the applicant stated:

    ‘No, I did not, my husband threatens me that if I report him to the police, he will kill me dead and do lifetime in prison and I know my husband very well what he will do to me if I report him. I fear for my life that I do not want to risk it otherwise my children will loose both of us.

    Also a lot of cases like mine, domestic violence have been reported to the police from my neighbours nothing have been done about; the police in my country will regard it as it only a family issues and just told the wife and husband to fix the problem at home without any charges laid.’[22]

    [22] PVA Q79.

34. In relation to the question of what she thought would happen to her if she returned to the Solomon Islands, the applicant stated:

    ‘I’m fearing for my life if I return I will be a dead person because he already make it clear to me when I try to run away to my island earlier that if I run away again he will send my dead body to my people. In addition to that when boarding the plane he know nothing about but now that he already know that am in Australia from my friends and family am a dead person if he sees me again that’s what he said to them’.[23]

    [23] PVA Q77.

35. In relation to the question of whether she had tried to relocate to avoid the harm, the applicant stated:

    ‘Yes, I did move back to my [province] and he came after me and took me back with him to [Town 1] to our home, telling people that he is a change man and he gave some shell money to my people to reconcile for what he did (beating me up). He always like this and my elderly people accept it don’t really know what usually do to me; I can’t go anywhere to the other province because he won’t stop coming after me’.[24]

    [24] PVA Q80.

36. In relation to the question of whether she thought she would be harmed or mistreated if she returned, the applicant stated:

    ‘Definitely Yes, as I already mention it in the claim I made above; my husband will beat me up to the stage where I will not be able to walk again or even death as he already told me every time he beats me up. In addition to that he told my neighbours/friends that if I go back to Solomon Islands, he will beat me up to death which I really fear for my life. All I wanted is not to be get beaten and mistreated again and again by my husband. I suffer enough all I wanted is to have freedom and peace with a normal life.’[25]

    [25] PVA Q81.

37. In relation to whether she thought the authorities could protect her if she returned, the applicant stated:

    ‘No, I’m very sure the police will not protect me; because there are a lot of cases like mine is happening to my neighbours and the only thing the police officers do when reported was: It is a family issue and should be settle at home that’s what they always do. Corruption in the force are one of the big problem happening; I have seen it with my own eyes that have done every day; bribing the officers not to lay charges on them (men). That is why my safety will not be a priority to the officers.’[26]

    [26] PVA Q82.

38. In relation to whether the applicant could relocate if she returned to the Solomon Islands, the applicant responded:

    ‘No I have move back to my home [province] before but my husband just came after me and took me back to our home in [Town 1]; after that he threated me that if I ever try to run away again he will come after me and kill me very badly; I know my husband well he never lie about what he will do to tme if I do not listen to him. I’m very sure that I will not hide from him in any of the islands in Solomon Islands. He knows better the other islands than I do.’[27]

    [27] PVA Q83.

39. The applicant signed the Declarations pages of the application, which includes the warning that giving false or misleading information is a serious offence, and confirmation that the information provided in the application is truthful and honest in every way.[28]

    Medical Report dated [January] 2020

    [28] PVA Q87.

40. This letter is marked on its letterhead to be from [Medical service], relating to the applicant’s presentation to the hospital on 18 October 2018 with a ‘deformed and painful [body part 1]’ reporting that her husband assaulted her in the previous week.

1. It was further noted:

   ·     An xray requested confirmed a fractured [body part 1]

   ·     She needed surgery to correct the fracture dislocation of her [body part 1], which was postponed several times because of a persistent chest infection and asthma-like condition

   ·     The surgery (Plate & screws – 3.5mm DCP) was done on 5 December 2018

   ·     Recovery was good, not eventful, and she was discharged on 6 December 2018

   ·     On follow ups, the stitches were removed, ROM is now full and equal to [opposite body part 1] and fracture has completely healed.

   Department further correspondence & decision

2. As noted in the delegate’s refusal decision:

   ‘On 19 December 2022 the applicant was sent correspondence inviting them to provide additional information about their claims under s56 of the Act. The s56 invitation advised the applicant that their statement of claims lacked substantiating details, such as incidents, dates and locations. While the applicant has provided one piece of evidence to indicate that they have been injured in the past, it was put to the applicant that they had not provided sufficient evidence in regards to their claims of a subjective fear of future harm. This correspondence also advised the applicant that, in order to be satisfied that their claims for protection were genuine, they were invited to provide more information about what happened to them in Solomon Islands, including dates, and locations of events. The applicant was also invited to provide specific information about their experiences in the Solomon Islands and they were invited to provide relevant evidence. The applicant was also invited to provide specific evidence.

   It was also put to the applicant that considering she declares that she has been separated from her husband since October 2018 and she arrived in Australia in 2020, and they have now been separated for a period of four years, then it may be unlikely that her husband would target her and harm her in the future. It was put to her that that consideration is of particular significance in the absence of any evidence that her husband had attempted to contact her while she has been in Australia. The letter also invited that applicant to provide any details, and evidence, of her husband making contact with her in Australia.

   It was put to the applicant that the above concerns could provide reason to find that her claims are not credible and she was invited to respond to each of the concerns and requests for information put to her. . .As of the date of this assessment the applicant has not provided additional information in relation to their claims, including the additional information specified in the s56 invitation. Nor is there any evidence that they attempted to contact the department to provide further information about their claims or request additional time to respond to the s56 invitation.’[29]

   [29] Delegate’s refusal decision, pg 2-3.

3. The Department did not invite the applicant to attend an interview with them.

4. The delegate’s decision, as summarised above, was made on the basis of the applicant’s claims not being credible, noting the separation date provided by the applicant in her PVA and that she would be unlikely to live with her husband upon return, and her lack of response to the Department request for information.[30]

   [30] Delegate’s refusal decision, pg 5.

   Evidence before the Tribunal

   Pre-hearing documents

5. The review application did not contain any additional claims or information relating to the PVA claims.

6. The Pre-hearing information form contained the following statement under the heading ‘Claims for protection’:

   ‘To date, my ex-husband moved back into my house built for my daughters, entertaining women and girls in my house. He told my eldest daughter [Ms A] that if I ever return to the Solomon Islands he is going to kill me.’

7. The pages from the medical record book span the period of 2011 to 2019, but do not state the source. Of note are the following entries:

   ·     6 April 2011 - ‘knife wound both [body part 1] open and deep. HR/8 Pt been cut by husband’

   ·     23 October 2018 – ‘[body part 1] deformity and swollen.’ ‘She was kicked by husband over [body part 1]’

   ·     Further records of 2018-2019 refer to occupational therapy and other treatment for the [body part 1] injury.

8. The applicant’s statement[31] provides:

   [31] Unsigned and undated, received 17 May 2025.

   ‘I met my ex-husband at the [Shop] at [Town 1] where we were both working in the [work section] in early 24^th October 2005. He is [Mr E] and is a relative of the Late [Mr F] who owns the [shops] in [Town 1].

   From day one of our relationship, he started being jealous if I talked to other male staff members or shared jokes with the female staff with giggles and laughter and even taking selfies with the girls. I brushed those jealous moments aside thinking that he was doing it out of love and trying to protect me from other male at workers. Little did I know that, that was the beginning of the nightmare that I had let myself into.

   We were both living at [Town 1] and were working at the same company before we met in 2005. We moved together and started living together at [Town 1] just before Christmas 2005 

   I found out I was pregnant with [Ms A], my eldest in [Month Year] but I never got to know if [Mr E] ever loved me or not because I was always in pain from his constant jealousy and abuse from the start of our relationship

   Our eldest daughter [Ms A] was born on [Date] and the youngest  [Miss G] was born on the [Date]

   The first physical abuse I can remember was a week after moving in together. I was slapped across the face and mouth ending up with bleeding from my mouth just because I was talking to our neighbor next door. I got bruised face with swollen lips then. He has no sympathy in him. He is empty of all the goodness in life and was filled with pride and is very arrogant thinking that he is the only man and without him I would be nothing. That was his line of thinking.

   I could not leave him as we already hard [Ms A] and my parents and family were against me leaving as it would be a bad reflection on our family and culture. I also want my children to grow up knowing their father and his family.

   In our culture, a husband has all the right to abuse his wife however he wants and it is still okay and when I am married I am seen as a property. I am owned by my then husband.

   Generally speaking my brain could not keep record of the dates and times as I was abused pretty much on a weekly basis. I wanted to have more children but because of the abuse I can only have two beautiful girls. I was sorry that they were born into abuse and grew up witnessing all the suffering and pain and trauma that I was through

   My daughters grew up in fear and with fear. When I was being hit or kicked or punched, my daughters would cry and try to hug me and their father would shout at them and threw them across the floor. My baby [Miss G] ended up not wanting to live with us and so [Mr E]’s mother took her away in June of 2018. She is still living with her grandmother in [Town 3] to date.

   I had to work to support myself and my daughters and there were days I went to work with bruises that were obvious and I went to work in pain. I thought I had the strength within me to keep going no matter how much and how often I was hurt to show my two girls that no matter what they go through in life, they have to be strong and always be positive.

   As stated earlier, I lost count of the abuses, dates and times as I suffer abuse every week until after October 2018. There were cases I had to go to hospital which was recorded in my medical book (pages attached) and there were cases of physical abuse where I was locked in the bedroom so that I do not call the police. His family were always on his side. I am someone who do not talk much and I listen to what people tell me to do and what not to do. The last and worst physical abuse done to me was in October (see attached medical page).

   [Mr E] was seeing other women all along since we had [Ms A]. And so on the 11 October 2018 he started staying away with his now wife. He only came home on weekends to hit me and abuse me and harass me for money. I still received black eyes and bruised arms and legs up till late 2019

   I stayed on at [Town 1] even when [Mr E] started seeing someone else and only comes home to kill me and demand for money because that house was built for my two daughters.

   [In] January 2020 I left For Brisbane, Australia and there was no looking back as for the first time in 15 years I felt peace and quiet but the trauma and pain that I went through is still haunting me to date

   My daughter [Ms A] was asked to leave our house because [Mr E] took in his girlfriend and her children and are currently living in that house

   My daughter is taken in by [Mr E]’s sister who is also living at [Town 1].’

   Call witness
   My sister [Ms D] who is currently here in Australia and was a living witness to all the abuse I went through is willing to give evidence.’

9. The letter from [Ms A] provides:

   ·     It is not safe for her mum, [the applicant], to return to the Solomon Islands

   ·     Ever since she [Ms A] was able to walk and talk, she was part of a family with weekly, sometimes daily violence

   ·     She can’t recall exact times, but recalls that her mother was abused by her father daily, including beating her

   ·     She also recalled her mother carrying her to safety whilst her father tried to hit them with his vehicle

   ·     She wants her mother to remain alive for her and her sister, and if her mother returns her father will abuse her, as he talks about it every day

   ·     She lives with her father but he does not treat her well, as he is into other women and girls, and asks what kind of father would make his daughter live under the house which was built for her and her sister.

10. The letter from [Ms B] provides that she is a relative of [the applicant] and that so far as she can remember her ex-husband was a monster. She further provides:

    ·     [The applicant] and her ex-husband [Mr E] met on 22 February 2005 and ever since then she had been a ‘punching bag’ to him, ‘someone who he can hit and kick and throw however and whenever he wishes’

    ·     It is not safe for [the applicant] to return to the Solomon Islands as there is no where for her to go

    ·     Previously [Ms B]’s home in [Location 2] was a safe heaven for [the applicant] to run to for only a couple of hours before [Mr E] would come and find her there, knocking and shouting abuse and threatening her until she went back with him only to be abused more. She would come sometimes 3-4 times per week

    ·     The applicant’s daughter [Ms A] also comes to her home to get away from her home, and she has told her that [Mr E] plans to hurt and abuse [the applicant] when she returns to the Solomon Islands

11. The letter from [Ms C] provides that she has known [the applicant] from the Solomon Islands [Christian denomination] church choir in [Town 2] since June 2020 and also as a former work colleague, and having lived in a share-house with her. She has noticed that [the applicant] is afraid of loud noises and when asked about this, she - with tears in her eyes – showed her scars and explained about the weakness and pain in her [body part 1s]. She further states [the applicant] has scars on her [body part 2s] from cuts and bruises caused by her children’s father. She further states that she has heard [the applicant] crying on the phone to her eldest daughter and she is sad about not being able to be with her daughter.

    Evidence at hearing

12. Asked if the applicant recalled her PVA, the applicant agreed. Asked if the applicant received any assistance to complete her PVA, the applicant said she had help from her friend to complete the form, and that help consisted of her telling the friend the information in Pidgin and her friend writing it out on the form. She can read and write English but not much. She confirmed it was her friend’s writing on the form. She said she and her friend posted the application to the Department, and she did not keep a copy of the PVA. Whilst she didn’t have the form re-read back to her by her friend, she believed her claims were true and correct as they were based on the information she had told her friend.

13. She confirmed that she was separated from her husband, [Mr E] (she referred to him throughout the hearing as ‘[Surname]’). She married him in December 2005. Asked about the date of 20 January 2005 referred to in the PVA, she said they started seeing each other around that time. On 11 October 2018 [Mr E] moved out of their home at [Town 1], but he was still coming back and forth to her and this was because he paid the ‘bride price’ for her, and as a result he considers he owns her.

14. Asked about the bride price, she said he had paid 5000 Solomon Island dollars to wed her. She also said that they had a traditional wedding, not a wedding in a registry or as officially recognised, and that as a result they cannot divorce. He kept coming back until not long before she moved to Australia.

15. She has 2 children with [Mr E] - [Ms A] who is [Age] years old, who currently lives with her paternal aunty in [Town 1], and [Miss G], who is [Age] and lives with her paternal grandmother in [Town 3], Solomon Islands. The applicant explained that the house in [Town 1] was built for their family including their 2 daughters, but after her husband left her he brought his new ‘wife’ and their children to live in the house, and made [Ms A] live in a house underneath their house with [Mr E]’s sister. [Mr E] took the lights out of the underground house and so they have only a lamp, not proper lighting. The applicant said that because [Mr E] had paid the bride price, the children must stay with his family and cannot go with her.  [Miss G] has been living with her paternal grandmother since 2018. She was living there at the time that [Mr E] broke her [body part 1], then she came back after he left, and then she left again at Christmas 2018.

16. Asked about her other family, she confirmed her parents are still alive and living on [Island], Solomon Islands, and they moved there from [Province] where she grew up. She has [siblings] – [sisters] who live in [Province], [brothers] and 1 sister in [Town 1], and 1 sister in NSW. Her sister in NSW is here on a seasonal work visa, she came last year and is here for 4 years.  She has some contact with her family overseas, but it depends on reception and her work schedule. She has not yet seen her sister in NSW and hopes to catch up at Christmas. She has an uncle in Brisbane too.

17. Asked about whether she financially supports her family overseas, she said she sometimes sends money to her daughters, who are both still studying at school. The applicant financially supports herself in Australia. She is working as a casual [occupation] at [workplace]s in [Town 2], having been doing this work for about 2 years. Before this she was not working in Australia, as her [body part 1] had not healed properly and she found it difficult to have a full range of movement with the [workplace 2] work. She still has issues for time to time with her [body part 1], but manages okay.

18. She confirmed her previous employment as listed in the PVA. She said that the [shop 1] was also a [shop 2], and this was where she met her husband in 2005 when they were both working there.

19. In relation to her reasons coming to Australia, she said her uncle in Australia had encouraged her to apply for the visitor visa as she needed to get away from her husband in the Solomon Islands. Asked how she arranged to come to Australia, she said her uncle helped her apply for the tourist visa and paid for her travel costs.

20. She said that even though her husband left in October 2018 after he hurt her [body part 1], when he started staying away with his girlfriend, he would still come back and would hit her. Asked about whether this was his girlfriend or wife, she said at that time it was his girlfriend but she thought it might be his wife now. He has had multiple girlfriends since then but she thinks it started out as just one woman.

21. Asked about when he started to hit her, she said he started ‘killing her’ when they moved in together. Asked to explain what she meant by this, she said she used this term to describe him hitting her, hurting her, and doing violence towards her. Asked about the reference in the PVA to him hurting her from when she was pregnant, she confirmed she had moved in with him around that time.

22. Asked about the sorts of things he would do to harm her, she said he would hit her, try and cut her with a knife or other objects, and described a time when he ‘shot’ her with a piece of [glass] which caused a wound on her [body part 2], and another time he ‘shot’ her with a cup on her ankle.

23. Asked if she had sought medical treatment, she said she went to hospital to get help, but never want them to report to police because she was scared, and worried the police wouldn’t do anything because they would think it was a family matter.

24. She referred to her medical records, the notes which had been provided. She said in 2011 he had tried to stab her with a knife on each of her [body part 1s]. She then [moved part of her clothes] and showed the Tribunal a visible scar on each of her [body part 1s]. She said she was fearful he is going to stab her again. She said she had to have stitches for those wounds.

25. In 2018 he had hurt her [body part 1] after she had tried to fight him off, because was trying to have sex with her and she did not want to. This had fractured her [body part 1] and she had to have ‘big surgery’. She said he had come back to the house to have sex with her many times after he had left her, because he could do that because he had paid the bride price for her, and if she tried to resist him he would hurt her. She feared him hurting her again after he broke her [body part 1] so she had to accept him coming back to have sex with her even though she did not want to. After he hurt her [body part 1] he would continually threaten her, saying things like, ‘I’ll cut off your legs; you’ll never walk again.’

26. After he left he would also harass her for money. He made another woman pregnant and he told her she had to pay for milk for the new baby. If she didn’t give him money, he would threaten to beat her up. He would come monthly and ask for money, every month until she left for Australia.

27. Asked about the reference in her statement to the physical harm ending in late 2019, she said this was when she moved into her sister [Ms D]’s in [Location 2], Solomon Islands. She moved there when she was trying to work out what to do, and preparing to move to Australia. [Ms D] is the same sister who is now living in NSW. She said she told him he could have the [Town 1] house and she was going to stay at her sister’s; this was the only way she could get him to stop coming to her. He said she could go but she could go without her phone, and he broke it. Even after she went to stay there he still threatened her. In November 2019, at night whilst she was sleeping he used his car to ‘bump’ into [Ms D]’s fence. [Ms D] looked out the window and saw it was him and his car. It pushed the fence in but did not damage it too much. She was scared. She heard from other people that he had an argument with his girlfriend that night.

28. When she came to Australia, she did not want any more contact with him, so she told her family including [Ms A] – who was still living in the [Town 1] house – not to tell him. When [Ms A] eventually told her father she had gone to Australia, he’d told her that he did not believe it; that she would never leave him.

29. Asked if she had contact with him in Australia, she said she had not, other than one time in 2020 when [Ms A] asked her to speak with him. At first the applicant said no but [Ms A] refused; she asked her not to be unkind. When she did speak with him, he asked her for money to put an extension on the house at [Town 1], for his new family. She told him no and she refused to talk to him again. She hadn’t spoken to him since when she was living at [Town 1]. She had still been giving him money up until she left [Town 1].

1. [Ms A] has told her that if she returns to Solomon Islands, that [Mr E] had said he will ‘take her’ again and will keep doing what he was doing to her there. The applicant believes that he will continue with abuse against her based on what he has done to her previously, because she ‘knows that man’ and ‘he can never change’.

2. Asked about the information in [Ms B]’s letter, the applicant said they are related as her husband is the applicant’s Dad’s uncle. Asked about the date [Ms B] refers to of 22 February 2005,  the applicant said that she and her husband started seeing each other in early 2005 and moved in together at the end of 2005 but that at first they were seeing each other in secret, it wasn’t until later that ‘everyone’ knew about them.

3. Asked about why she only applied for her passport in 2019 even though the abuse had been happening for some time, she said she was waiting until her children were a bit older, and she was also worried that if she stayed back he would give her another child. She also said she struggled to leave him because even though he was hurting her she still loved him.

4. Asked about the Department letter, she agreed she got the letter but she didn’t know how to respond to it. She said at that time she didn’t know how to ask her family back home for help, and she didn’t understand the sort of evidence the Department required. She could see on the list they were asking for things like the marriage certificate, but she didn’t have a marriage certificate because it was a traditional ceremony in the Solomon Islands custom, not a registered one, so she was worried because she didn’t have the evidence they were asking for. Asked about the part in the letter where it said that she should provide an explanation for why she couldn’t provide the evidence, she said she did not understand that at the time.

5. Asked if her husband had tried to contact her in Australia by any other means, she said she had blocked him on [Social media], and so he hasn’t been able to reach her through that way.

6. Asked if [Mr E] had harmed [Ms A], she was not aware of him physically hurting her but [Ms A] was often crying on the phone to her, saying that [Mr E]’s wife had threatened to smack her and that [Mr E] was mean to her and had threatened to hit her. She also said that when [Ms A] runs around to her sister’s house in [Location 1], [Mr E] tells her sister that if she doesn’t bring her back, he’ll smash her house in.

7. Asked what she thought would happen to her if she has to go back to the Solomon Islands, she said: ‘I know if I go back home, he will do exactly the same, he’ll come back and same thing will reoccur’.

8. Asked whether the applicant has any other claims for protection other than relating to her fear of her husband, she said she did not. Asked about the claim in her PVA where she referred to her sisters-in-law provoking her ex husband, she said that this was happening at the time when she was overseas, and that they would encourage him against her. They would do things like say to him: ‘[The applicant] has been on [Social media] talking to boys’ – they told him that just before he broke my [body part 1]. I had not been doing that, but they were trying to stir him up. On another occasion one of his sisters broke her phone. Asked if that was the same occasion where she left to go to her sister’s, she said no, that [Mr E] had broken her phone then, and this was another time. Asked if this was still a concern of hers, she said no. She has not had any contact with those sisters – who she then described were actually his cousins - since she came here, but she does keep in touch with his other sister who lives with [Ms A], and she’s not a problem to her. Her only concern is about what [Mr E] would do to her if she returned.

9. Asked about if she sought help from the authorities in Solomon Islands, the applicant said she didn’t believe the police would help.

10. In terms of relocation whilst she was in Solomon Islands, the applicant confirmed that one time – she thought in 2009 – she went back to [Province] to get away from him, and he came and demanded she go back home with him. Two of her uncles tried to protect her when he tried to hit her, but her husband beat them up and she had to go back home with him. If she has to go back to Solomon Islands, she doesn’t believe she could relocate to get away from him because it is a small place and everyone knows where everyone is.

    Concerns discussed with the applicant at hearing

11. Taking into account s 367A of the Act, the Tribunal raised with the applicant its concerns that she had raised new evidence at the hearing that she had not put to the Department, despite having had opportunities to do so including when they specifically requested evidence through their letter. The Tribunal noted that this new evidence was her medical records book provided earlier this year, and her statement, and references from her friend and family members, which were provided to the Tribunal in the days prior to the hearing. It was noted that the references from her friend/family were dated earlier this year so it was also unclear why the applicant had delayed in providing these. It was specifically noted that in relation to new evidence provided at hearing, the law requires the Tribunal to draw an unfavourable inference on the credibility of these claims and evidence unless the applicant satisfies the Tribunal that she has a reasonable explanation as to why those claims and evidence were not raised or presented with the Department.

12. The applicant’s response was: ‘At that time I don’t even know how to go about everything, I don’t know where to get the information from. So that’s why I didn’t reply to them. And also I couldn’t supply the marriage certificate as we didn’t get married in church which is traditional wedding.’

13. She further explained in relation to not giving the reference letters earlier, that she had been trying to get them but her friend/family were delaying in giving them back to her and then there was a delay because she didn’t have a laptop. Asked why she had only put these documents in at this time, rather than before the Department decision such as when she got the Department letter, she said that she didn’t have anyone explain the Department letter to her and she didn’t understand that she could have told them the reasons why she could not provide that evidence then (she did not see the paragraph referred to in their letter). She said it was only when another friend suggested to her during the Tribunal proceedings that she should provide that sort of evidence, that she got it together.

14. The Tribunal discussed with the applicant generally the country information referred to below with respect to State Protection, and in particular domestic violence protection laws, being available in the Solomon Islands, and that might suggest the authorities might be able to provide her effective protection if she has to return there. The applicant’s response was that in 2011 when her husband stabbed her with the knife she told her uncle – her Dad’s brother, and her uncle contacted the police and they came to the house at [Town 1] and spoke to both her and her husband. Her husband told police it was a family matter and they didn’t arrest him, they just left.  She said if [Mr E] sees her anywhere, he will do anything to her.

15. The Tribunal discussed with the applicant its concerns that the applicant’s claim did not appear to involve a refugee reason of race, religion, nationality, membership of a PSG or political opinion (under s 5J(1)(a)). The applicant did not have a comment in relation to that.

16. The Tribunal discussed with the applicant that there may not be a real risk or real chance under the refugee or complementary protection criteria of harm to the applicant, on the basis that the applicant had not had contact with [Mr E] since the end of 2019, except for one phone call in 2020. The applicant’s response was to the effect that [Mr E] was not talking to her because she did not want to talk to him, but he is still talking to her daughter.

17. Asked at the end of the hearing whether there is anything further she wanted to tell the Tribunal, the applicant said she did not want to go back to the Solomon Islands.

    ANALYSIS, REASONS AND FINDINGS

    Country information

18. In assessing the applicant’s claims the Tribunal has taken into account relevant country information, as set out below, including with respect to domestic violence and gender-based violence and availability of State Protection.

    Domestic violence and gender-based violence

19. Gender-based violence directed at women is prevalent in the Solomon Islands, including that two thirds of women aged 15 to 49 report having experienced physical or sexual abuse by a partner.[32] Gender-based violence, including rape and domestic abuse remain a serious problem and are widely unreported,[33] key reasons including pressure from male relatives, fear of reprisals, feelings of shame and cultural taboos of discussing such issues.[34]

    [32] ‘Solomon Islands is no paradise for women. These people are leading the charge for change’, ABC News, 6 April 2020.

    [33] 'Freedom in the World 2022 - Solomon Islands', Freedom House, 28 September 2022; ‘Country Reports on Human Rights practices for 2023 – Solomon Islands’, US Department of State, 20 March 2023, pg 10-11.

    [34] ‘Country Reports on Human Rights practices for 2023 – Solomon Islands’, US Department of State, 20 March 2023, pg 11.

20. Inequitable gender norms are common in the Solomon Islands, including that three-quarters of men and women believe violence is acceptable, especially if a woman is ‘disobedient.’[35]

    [35] Note 34.

21. Domestic violence was criminalised in the Solomon Islands with the introduction of the Family Protection Act in 2014 with protection laws coming into effect on 1 April 2016.[36] Under the Family Protection Act, perpetrators of domestic violence can receive a fine of SI$30,000,[37] a 3-year prison term, or both.[38] Rape of women, including spousal rape, is a crime with a maximum penalty of life imprisonment.[39]

    [36] Osifelo, E 2016, ‘Domestic violence, a serious concern’, Solomon Star, 8 April An undated profile on the Oxfam New Zealand website stated that the average gross monthly wage in the Solomon Islands is NZ$171: Oxfam New Zealand n.d., Solomon Islands profile < According to conversions made using the XE Currency Converter on 30 June 2016, NZ$171 equates to AU$163.14 and SI$967.67. SI$30,000 equates to AU$5,075.60 – see Solomon Islands Government 2014, Family Protection Act 2014, 22 September, p.38 < Note 34, pg 11.

According to the latest United States (US) Department of State country report on the Solomon Islands, customary bride price payments remained common and contributed to the perception of ownership of women by men, and sexual harassment is a widespread problem and is not illegal.[40] The report further provides that very few domestic cases are prosecuted, and in many instances victims dropped charges before court or settled cases outside court, and prosecutions are rare and can take up to 2 years to be heard in court due to low judicial and police capacity and cultural bias against women.[41] A 2019 joint study by Australian Aid and the Solomon Islands Government examined how police respond when women report family violence incidents. In most cases (47 per cent) women reported receiving no information or action from the police, were told to ‘come back later’ or discouraged from filing a report.[42]

[40] Note 34, pg 12.

[41] Note 34, pg 11.

[42] ‘Women’s experiences of family violence in Solomon Islands’, Australian Aid & Government of the Solomon Islands, 26 November 2019, pg 26, pg 6.

While the law accorded women equal legal rights, including the right to own property, most women were limited to patriarchal family roles; fear of pervasive gender-based violence prevented them from taking more active roles in economic and political life.[43] No laws mandated equal pay for work of equal value, and the government did not enforce equal rights laws effectively.[44]

[43] Note 34, pg 12.

[44] Note 34, pg 12.

As to information about violence where bride price has been paid, a 2009 UNFPA study of family safety noted bride price among ‘risk factors at the individual and relationship level’ associated with ‘the occurrence of intimate partner violence’:

Bride price was found to be a strong risk factor for women’s experience of IPV. In particular, women whose bride price had not been fully paid were particularly at risk. They were more than two and a half [2.6441] times more likely to experience partner violence than women whose marriage did not involve bride price. Key informant interviews and in-depth discussions with victims of violence indicated that, in recent years, the practice of bride price has changed significantly. Now many people view bride price as giving a man ownership over his wife and the right to beat her and treat her as he wishes. It is believed by some, including many women, that if bride price is paid, a woman cannot leave her husband.[45]

All women who had been married through a ceremony were asked if their marriage had involved payment of a bride price. Those who responded positively were asked if all the bride price had been paid, or if some part still remained to be paid. Women whose marriage involved a bride price were significantly more likely to experience intimate partner violence (current and lifetime) than women whose marriage did not. When the whole bride price had not been fully paid, the women involved were even more likely to experience violence.[46]

Bride price was found to be a strong risk factor for women’s experiences of partner violence. Women whose bride price had not been fully paid were particularly at risk. They were more than two and a half times more likely to experience violence than women whose marriage did not involve bride price…10% of women reported that they returned to a violent relationship after leaving because bride price was paid and 9% of women who had never left an abusive relationship reported that bride price was the reason they stayed. The existence of bride price varies from island to island. However, it was traditionally considered compensation by the man’s family to the parents of the bride for the ‘loss’ of their daughter. Ethel Suri from [Solomon Islands Christian Association, Federation of Women] SICA FOW explained that bride price is also about developing a covenant between two families: … However, in recent years the practice has changed significantly and many people view bride price as the right given to a man to have ownership over his wife and to beat her and treat her as he wishes. A number of participants in the male focus group discussions, particularly older men, noted that the practice of bride price had changed and this was detrimental to the status of women… It seems that many people now believe that if bride price is paid, a woman cannot leave her husband…[47]

Availability of State protection

[45] ‘Solomon Islands Family Health and Safety Study: A study on violence against women and children', United Nations Population Fund (UNFPA), 2009, p.9.

[46] Note 45, p.143 (see also 11, 29, 71, 127, 133 Table 10.8, 134 Table 10.9, 141 Table 11.2, 147 Table 11.4, 149-151 & 155).

[47] Note 45, pp.149-150.

The US Department of State[48] provides the following information about the Royal Solomon Islands Police Force (RSIPF):

‘The Royal Solomon Islands Police is responsible for internal and external security and reports to the Ministry of Police, National Security, and Correctional Services; Australia and New Zealand support the police. Civilian authorities maintained effective control over the security forces. Members of the security forces were not known to have committed abuses.’[49]

[48] Note 34, pg 2.

[49] Note 34, pg 2.

Freedom House’s ‘Freedom in the World 2023 report on the Solomon Islands’ provided the following information on the judiciary, the police force, and domestic violence laws:

‘The judiciary has a reputation for independence, though a severe lack of resources has contributed to case backlogs. Judges are appointed by the governor general on the advice of an impartial Judicial and Legal Service Commission. The Court of Appeal is mainly reliant on foreign judges. . .
The police force, which was disarmed in 2003, has been entirely rebuilt with the help of the Australian-led Regional Assistance Mission to the Solomon Islands (RAMSI), which launched that year. Mostyn Mangau became the first locally appointed police commissioner in 19 years when he took the post in 2020. . .

Despite the 2014 Family Protection Act, which formally criminalized domestic violence and enabled victims to apply for protection orders, domestic violence and rape are serious and underreported problems. Victims are reluctant to take their cases to court.’[50]

[50] Solomon Islands: Freedom in the World 2023 Country Report | Freedom House.

As stated in a report of Australian Aid from 2019, the Family Protection Act provides options for services to address violence including services such as awareness, counselling, medical reports, Police Safety Notices, Protection Orders and court cases. [51] In relation to Police Safety Notices, 1034 were issued from 1 January 2017 to 1 May 2019 according to RSIPF headquarters records,[52] and the report further explains what such Notices are:

‘A Police Safety Notice is issued by RSIPF if officers determine violence has taken place or is likely to take place in domestic relationships (such as between husband and wife, parents and children or other family members). PSNs can also be issued on behalf of a vulnerable person, defined as a child or person with a cognitive impairment. The PSNs lasts for 21 days (with a possible extension of another 21 days) and forbids violence and sets out other rules for the person who has been or is determined likely to be violent. A copy of the PSN is to be given to the person affected by the violence, the person who committed the violence and to the Magistrates Court. PSNs can include the following types of rules for the violent person: to forbid the person going to certain locations or areas, to forbid the violent person to approach the affected person (within a certain distance), to stop the person from contacting the affected person, forbid the violent person engaging in behaviour that is likely to lead to violence (e.g. consuming alcohol) and a ban on possession of firearms or weapons. Police are also required under the Family Protection Act to help the affected person to find a safe place to stay, access counselling and medical services and legal services.’[53]

[51] Note 42, pg 9.

[52] Note 42, pg 10.

[53] Note 42, pg 16.

There have been reports of the prosecution and conviction, including under the Family Protection Act, of women’s former partners for incidents of violence perpetrated when they were partners.[54]

Availability of support services

[54] Such as Regina v Tamana [2017] SBMC 56; Criminal Case 131 of 2017 (14 November 2017), Magistrates Court of Solomon Islands, 14 November 2017, Pacific Islands Legal Information Institute website.

The Ministry of Social Solidarity and Inclusions is responsible for assisting survivors of domestic violence but does not have the capacity to respond to all cases. As a result, the government works closely with NGOs and service providers to provide support to survivors. Local NGOs operate shelters; however, demand for these services exceeded capacity.[55]

[55] Note 34, p.11.

Credibility and findings of fact

Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the applicant’s claims.

100.   In assessing whether an applicant engages protection obligations, the Tribunal must make findings of fact on relevant matters which may involve an assessment of credibility in relation to the claims the applicant has made.

101.   The Tribunal notes the guidance provided in the Department’s Protection Visa Guidelines[56] and the ‘UNHCR Handbook’[57], in assessing credibility in claims in protection matters, including the difficulties often faced by applicants in obtaining documents or other independent evidence, and circumstances where the benefit of the doubt should be given to applicants who are generally credible but unable to substantiate all their claims. However, the Tribunal is not required to uncritically accept every claim made by the applicant, or to have contrary evidence available before finding that a particular factual assertion by an applicant has not been made out.[58]

[56] 17 April 2024 at [15.4.6].

[57] ‘UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES’, 1 FEBRUARY 2019, AT [196], [203]-[204].

[58] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (19980 86 FCR 547.

102. In assessing the applicant’s claims, the Tribunal has considered international guidelines which support that persons seeking protection may be reluctant to disclose the true extent of gender-based violence and sexual violence for a range of reasons,[59] and accepts that persons who have suffered past traumatic events may have difficulty with regard to the specific recall of dates and events.[60]

[59] ‘United Nations High Commissioner for Refugees, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the State of Refugees’, HCR/GIP/02/01, 7 May 2022, at [35].

[60] ‘A SYSTEMATIC REVIEW OF AUTOBIOGRAPHICAL MEMORY AND MENTAL HEALTH RESEARCH ON REFUGEES AND ASYLUM SEEKERS’, FRONTIERS IN PSYCHIATRY, S KHAN, S KUHN AND S HAQUE, 4 JUNE 2021 – NATIONAL LIBRARY OF MEDICINE.

103.   The applicant’s only claim for protection relates to fear of harm from her ex-husband, [Mr E], relating to a long history of domestic violence towards her in the Solomon Islands from 2005 to late 2019. The applicant’s claims relate specifically to physical abuse which started approximately one week after they moved in together in late 2005 and continued throughout the relationship, and ongoing threats of harm. In particular, the applicant detailed a significant incident in October 2018 when he had tried to force her to have sex with him and she had resisted, and he fractured her [body part 1] for which she had required surgery. Whilst her husband stopped living in the family home about then, he continued to return and physically abuse her and also demand money from her, up until late 2019 when she moved temporarily into her sister’s house – letting him return to the family home with his girlfriend in an attempt to stop the abuse towards her – before the applicant departed for Australia in January 2020.

104.   Overall, the Tribunal accepts the applicant’s claim of domestic abuse by her husband to be credible, taking into account particular features of her evidence, including:

·     her account was largely consistent between her PVA, her written statement provided just before hearing, and at hearing – albeit considerably more detailed in the latter two accounts

·     She provided medical documents which were consistent with the claimed harm detailed in her hearing evidence and other evidence. In the Medical Book, reference was made to a ‘knife wound’ where she reported being ‘cut by husband’ on 6 April 2011; and the 23 October 2018 entry for ‘[body part 1] deformity’ where she reported she had been kicked by her husband, and further records from 2018-2019 for treatment for this injury was consistent also with information referred to in the later medical report [as] to her injury and treatment

·     The letter from her eldest daughter [Ms A] and relative [Ms B] both confirm a history of domestic violence by her husband to the applicant whilst in the Solomon Islands, and that [Mr E] has expressed his intention to hurt the applicant should she return. Whilst there were some inconsistencies in the accounts of those witnesses and the applicant’s account as to the specific nature of [Mr E]’s threats about the applicant, and the date of the threats is unclear, the Tribunal accepts that her ex-husband has in the past and since she has been in Australia, expressed intentions to harm her in some way should she return to the Solomon Islands, both to the applicant directly and to her relatives

·     The letter from the applicant’s friend, [Ms C], confirms her account of ongoing weakness in her [body part] and scars as a result of the injuries from the domestic violence, and at the hearing the applicant showed the Tribunal scars on her [body part 1s] from the past violence which were clearly visible

·     Country information as set out above supports the applicant’s account of the culture of gender imbalances and prevalence of domestic violence towards women by their husbands in the Solomon Islands, including her fear -which appears to be a realistic one on the country information - that [Mr E] believes he owns her and can do what he likes to her, notwithstanding their physical separation and him re-partnering and this is linked to the payment of a bride price to her family

·     The applicant has taken significant steps to leave her abusive marriage to come to Australia, noting that she left the security of her family home in [Town 1], ongoing employment,  and had to make the difficult decision to leave her two children behind, including the younger one in the care of her paternal grandmother, and her eldest child has supported her mother’s account.

105.   Whilst the Tribunal discussed with the applicant that she did not provide particular information about her clam to the Department, noting that she did not respond to the Department’s section 56 letter, the Tribunal finds that that no adverse inference pursuant to s 367A of the Act should be drawn from the non-disclosure of this information to the Department. This is for reasons that:

·     The further details provided in her supporting statements and at hearing were consistent with her original claim as outlined in the PVA

·     Whilst the applicant had some help from a friend to complete her PVA form, she did not have an interpreter present. Whilst the PVA form lacked details and contained some inconsistencies as to her background information, as compared to her hearing evidence, such factors are understandable due to the applicant’s lack of English and representation. Importantly, the claim of harm was consistent between her accounts

·     In relation to not responding to the s 56 letter, the applicant’s response at hearing was to the effect that she did not know how to go about getting the information in the form, and that certain details she could not provide such as a marriage certificate given it was not a formalised marriage but through payment of the bride price, which is consistent with country information as referred to above

·     It was evident to the Tribunal at the hearing that the applicant had and continues to have a limited comprehension of English, such that it is understandable she would have difficulty in interpreting and responding appropriately to the s 56 letter without an interview and interpreter present

·     The applicant was not invited to participate in an interview with the Department, and therefore was not given the opportunity to discuss her evidence in detail until the hearing with the Tribunal

·     following the Department decision, the applicant took steps to send further written evidence into the Tribunal in support of her claims, including a detailed statement under her hand, medical evidence and supporting letters from relatives and a friend.

106.   For the reasons set out above, the Tribunal accepts the applicant’s claim, including that:

·     she was married to her ex-husband [Mr E] in a non-formal ceremony and that he paid a bride price for her to her family, following which they lived together from late 2005 until late October 2018

·     her ex-husband had a long history of domestic violence towards her including physical violence and threats of harm both direct and indirect

·     whilst her ex-husband was no longer living in the family home from late October 2018, he had continued to return to the home until late 2019 and abuse her

·     the physical abuse stopped as she gave him the family home to live in with his girlfriend, and she went to her sister’s place temporarily before coming to Australia

·     whilst in Australia she has only had some limited direct contact with him, when she spoke to him and he asked for money for his other family and she refused

·     whilst in Australia she is aware of indirect threats of harm by her ex-husband towards her, through her relatives

·     she fears that if she returns to Solomon Islands her ex-husband, will harm her, based upon the history of past domestic violence and direct threats to her, his indirect threats to her relatives, his payment of the bride price for her and his past behaviour

·     she came to Australia to find peace, freedom and safety away from the domestic abuse

107.   Whilst in her PVA, the applicant specified that another reason she wanted to leave the Solomon Islands was because of her sister-in-laws provoking her by stirring up arguments between her and her husband, the applicant’s evidence at the hearing was to the effect that whilst this was occurring in the Solomon Islands, this is no longer a concern of hers, and that her only claim/concern is about what [Mr E] would do to her if she returned to the Solomon Islands. On that basis, the Tribunal has not considered that claim about her sister-in-laws any further.

Does the applicant satisfy the refugee criterion for protection?

Real chance of serious harm

108.   Given the above findings of fact, the Tribunal has considered whether there is a real chance of harm if the applicant were to be returned to her home area, most likely [Town 1] given that is where her home was and her eldest child lives and some of her siblings reside, or to [Province] where her family is from and some are still based, in the reasonably foreseeable future.

109.   The Tribunal accepts that the applicant has a subjective fear that she will be harmed by her ex-husband if she returns to the Solomon Islands in the foreseeable future, given the findings of fact set out above.  In considering whether the applicant’s fear of persecution is well founded, the Tribunal has taken into account the relevant principle that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[61] The Tribunal has also taken into account the High Court’s guidance in MIEA v GUO,[62] where the Court stated: ‘Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provide a reliable basis for determining the probability – high or low – of their recurrence’.

[61] Chan Yee Kin v MIEA (1989) 169 CLR 379.

[62] (1997) 191 CLR 559.

110.   The applicant and her husband were married through a non-formal arrangement by which he paid a bride price for her, and were living together from about late 2005 to late 2019 over which the applicant was the subject of domestic violence by her husband. Therefore, there was a period of about 14 years over which the domestic violence, in particular physical abuse, occurred. Although the applicant and her husband separated on or about late October 2018 when he moved out of the family home, he continued to return to the family home and physically abuse her and demand money over the period until late 2019, after which she went to her sister’s place temporarily before coming to Australia. Her husband made continued direct threats of harm to her throughout her time in the Solomon Islands, and after she had come to Australia, he had a further phone contact with her in 2020 at which time he asked her for money, but did not threaten her directly. Since being in Australia, she has been informed by her relatives that he had made threats of harm towards her if she returned to the Solomon Islands.

111.   The Tribunal accepts that the Solomon Islands is a small place where the potential for the applicant to be located by her ex-husband, who to her knowledge is currently still based in the family home in [Town 1], and this is particularly so in circumstances where she would likely return to that area or her original home area to see her daughter and have contact with her siblings and parents, locations which are likely to be well known to her ex-husband.

112.   The threats of harm to the applicant both directly and indirectly, as well as the previous physical harm that the applicant experienced directly from her ex-husband, are indicative that such future harm is likely to amount to ‘serious harm’, for which examples are given in s 5J(5) of the Act.

113.   In these circumstances, where there has been a long history of domestic violence, the parties remain connected through their children, and the parties remain culturally married through the payment of the bride price, and taking into account the whole of the evidence and the country information, the Tribunal finds that there is a real chance that the applicant will face serious harm again from her ex-husband should be returned to the Solomon Islands in the reasonably foreseeable future.

Reasons for the harm feared

114. The essential and significant reason/s for the harm must be attributable to the applicant’s race, religion, nationality, membership of a particular social group or political opinion, under s 5J of the Act. Australian courts have generally determined that the term ‘particular social group’ should be given a broad interpretation,[63] and that women, or a subgroup of women, can comprise a particular social group.[64]

[63] Morato (1992) 39 FCR 401 per Lockhart J; Minister for Immigration & Ethnic Affairs v Respondent A (1995) 57 FCR 309; Chen Shi Hai v MIMI (2000) 201 CLR 293.

[64] MIMA v Khawar (2002) 210 CLR 1.

115.   The Tribunal finds that women in the Solomon Islands can comprise a particular social group as defined in s 5L of the Act, on the basis that they share the characteristic of gender, it is an innate or immutable characteristic and/or it is so fundamental to a member’s identity they should not be forced to renounce it, and this characteristic is not a fear of persecution.

116.   Taking into account the applicant’s circumstances, including the past harm she has experienced from her ex-husband and the impact that this has had on her, she no longer has any male support in the Solomon Islands, and the threats of future harm by her ex-husband, and the country information which supports the culture of male dominance and violence towards women in the Solomon Islands, the Tribunal is satisfied that the essential and significant reason for the serious harm is the applicant’s membership of the particular social group, namely women in the Solomon Islands.

117.   The Tribunal also finds that the harm involves systematic and discriminatory conduct towards the applicant, given the past harm she has experienced from her ex-husband.

Whether there is effective protection available

118.   The Tribunal has taken into account country information referred to above, which in summary provides that the police and judiciary are poorly resourced, inefficient and that cultural biases against women mean that prosecution and conviction rates are low for gender and domestic-related violence. The country information demonstrates that domestic and gender-related violence is a prevalent and ongoing problem in the Solomon Islands, and that there are considerable limitations in the availability of effective protection by authorities.

119.   The applicant’s accounts included written evidence that she had been threatened with harm if she reported abuse by her ex-husband,[65] experienced physical abuse where she was locked in the bedroom by her ex-husband to stop her from calling the police[66] and oral evidence that whilst she had sought medical help, she never wanted to report to police because she was scared/worried the police would not do anything on the basis it was a family matter. These accounts of the applicant are accepted by the Tribunal.

120.   The Tribunal has considered the availability of effective protection within the meaning of ss 5J(2) and 5LA(2) of the Act. Taking into account the applicant’s circumstances and the country information which supports the applicant’s concerns are well founded, the applicant might not be able to access protection, the protection is unlikely to be durable, and the protection does not consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. Therefore, the Tribunal is not satisfied that there are effective protection measures available to the applicant in the Solomon Islands.

All areas

121.   The Tribunal has considered whether the harm against the applicant relates to all areas of the receiving country as required by s 5J(1)(c) of the Act.

122.   Country information supports that about 85 per cent of land in Solomon Islands is customary land, meaning that it is held and accessed according to strict traditional laws and customs.[67] Geographically it is accepted that the Solomon Islands is a small place. The applicant’s evidence about relocation included that she had tried to relocate to her home area previously, but her husband had found her and made her go back to their home in [Town 1], and she was concerned that he would be able to find her again in the future. The applicant also gave evidence that her family is based in [Town 1] and her home village, therefore it is likely that she would need to return to those areas given the country information about traditional laws and customs. Given those factors, the Tribunal finds that the harm relates to all areas of the Solomon Islands.

Whether the applicant could modify her behaviour

[65] PVA Q79.

[66] Statement of applicant provided to the Tribunal, undated.

[67] For example, UNDP, 3 December 2021, ‘Enjoying land rights in the Solomon Islands’.

1. Under s 5J(3) of the Act, the Tribunal has considered whether the applicant could take reasonable steps to modify her behaviour so as to avoid a ‘real chance of persecution’, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience; conceal an innate or immutable characteristic; or require the applicant to do any of the specified things in s 5J(3)(c) of the Act.

124.   The harm relates to the applicant’s membership of the particular social group of women in the Solomon Islands. The applicant could not be required to alter her gender identity under s 5J(3)(c)(vi) of the Act, and there are no reasonable steps that the applicant could take to modify her behaviour so as to avoid a real chance of persecution.

Section 36(3)

125.   The Tribunal accepts that the applicant does not have a right to enter and reside in any third country, on the basis of the applicant’s evidence in her PVA. Therefore the Tribunal finds that the applicant has no such rights and is not excluded from Australia’s protection obligations under s 36(3) of the Act.

Conclusion

126. 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) of the Act.

DECISION

127. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.

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.

…