2301701 (Refugee)

[2023] AATA 4789

2301701 (Refugee) [2023] AATA 4789 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2301701

COUNTRY OF REFERENCE:                   Solomon Islands

MEMBER:Sean Baker

DATE:28 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 November 2023 at 10:20am

CATCHWORDS
REFUGEE – protection visa – Solomon Islands – victim of domestic violence – fear of further harm from husband – evidence of no contact with husband since separation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, a citizen of Solomon Islands, applied for the visa on 10 April 2022. The delegate refused to grant the visa on the basis that the lack of detail in the claims led the delegate not to be satisfied that their claims were genuine and found her claims to not be credible.

3. The applicant appeared before the Tribunal on 6 October 2023 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

10. The issue in this case is whether there is a real chance the applicant will suffer serious harm or a real risk she will suffer significant harm if she returns to Solomon Islands. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. In her application form, the applicant made claims that domestic violence from her husband happened a lot, she suffered beatings and had bruises all over her body. He often strangled her close to death. She reported him to the police many times and had medical and police reports back home, but her husband found them and destroyed them. She flew to Australia to get away from him and spend some time alone. She experienced kidnapping and torture, strangling and abuse until she was rescued by a member of her family.

12. She reported the situation to the authorities many times but was refused any assistance, she was told to lay low and go into hiding. She stated that the authorities do not interfere in family matters.

13. When she tried to relocate her partner would find her and convince her to go back, due to the severity of the situation she will be subject to torture and death.

14. She claimed she would experience life in danger, life in prison and physical torture.

15. The applicant arrived in Australia in October 2021 to do seasonal work.

16. The applicant was sent a detailed s 56 invitation by the Department, which told her that in the Department’s view, her statement of claims lacked substantiating details such as dates and locations, and supporting documentation, in regards to her claims, and that no further evidence to support their claims had been provided. They were invited to provide more detailed information about her claims.

17. The applicant did not respond to the s 56 invitation nor provide any additional information.

18. The applicant provided a copy of the delegate’s decision to the Tribunal. The applicant attended the hearing and gave evidence with the assistance of an interpreter.

    CONSIDERATION

    The relationship

19. The applicant provided information about her relationship. She said that they had been culturally married including the exchange of a Bride Price in January 2012. She lived with her husband in [Village 1], [Province 1]. She provided details of her husband including his name and date of birth. She said that her partner remained in Solomon Islands. She said that they had [number children]. The applicant described the relationship . She said that since 2012 until 2020 they lived in the village and whenever her husband became drunk he would chase her and the children out of the house, sometimes with a knife. She has scars from when he cut her. She said that the police station was a long way away and so she was not able to report her partner.

20. On the basis of her evidence I am prepared to accept that the applicant was in a traditional relationship with her partner from 2012, and that she experienced domestic violence in this relationship. I find on her evidence at the hearing that she did not report this to the police.

    Travel to Honiara

21. The applicant said that in November 2020 she had taken her [children] with her and had gone to her parents in Honiara. She said she had told her partner that she was taking the children to visit her parents for Christmas. They had lived there until she had come to Australia. Her children were still living with her parents in Honiara.

22. I asked how far it was from [Village 1] to Honiara. The applicant described the trip as involving a [boat ride], [a truck ride] and then a [boat] to Honiara taking approximately four and a half hours.

23. I then asked the applicant if she had seen her partner since November 2020. She said she had not seen him since then. She said that then she had come across the opportunity to do seasonal work in Australia to support her family and had travelled to Australia in October 2021. I asked if her partner had seen the children since she had been away and she said he had not, since she came to Australia he had not seen the kids nor provided any support to them.

24. I accept that the applicant and her children left the village and her partner in November 2020 and travelled to Honiara. I accept that the applicant and her children lived with the applicant’s parents in Honiara until the applicant departed to Australia in October 2021, that the children continue to live with her parents. I find that the applicant has not seen her partner since they left the village in November 2020 and that he has not seen or supported the children since then.

    Fear of harm

25. When asked the applicant said that she feared that she would go back to the same situation with her partner. I noted to her that it might appear to me that she could return to Honiara and not to the village, in which case I might think she would not face harm from her partner. She said that because both her family and his were from [Province 1], her partner had rights over her. She said because her partner had not found another wife, she was worried that he would come and assert his rights over her, and she would go back to the same situation.

26. I asked if this would only be a problem if she return to [Province 1] and she said that if her partner was in Honiara, he could assert his rights over her. I noted that she had said her partner had not come to Honiara to assert his rights over her in the almost year she had been in Honiara, nor had he contacted the children in the two years since she had departed, and this might make me think her partner would not do so if she returned to Honiara.

27. She responded that her partner was not concerned about the kids, but that as soon as she returned to Solomon Islands, her will definitely come to get her. She said that her partner had told his older sister he is waiting for the applicant to come back, when he will get the applicant and the kids and take them back to the village, and her partner’s older sister is friends with the applicant on Facebook and had sent the applicant a message. When asked if she had a copy of this message, she said she could not access it as she is not educated and did not know how to access her Facebook account.

28. When I noted that I might think her partner would not come to Honiara to find her, as he had not done so in the past, she said that if he had another partner he would leave her and the children alone but because he is still unpartnered she would face that same treatment. When asked how she knew he was still on his own she said that because he had paid the bride price, if he had a new partner he would let the applicant’s family know, but her family had not heard anything.

29. I accept that the applicant remains fearful of her partner. As above, I find that the applicant has not seen her partner November 2020. I find that she remained in Honiara for almost a year and her partner did not take steps to see her or to come and assert his ‘rights’ over her. nor has he seen or contacted the children since the applicant has left Solomon Islands. I have some doubts about whether the applicant was contacted by her partners sister over Facebook, I did not find her explanation for why she could not provide that message to me convincing. I am prepared to give the applicant the benefit of the doubt and accept that her partner has made some threat towards her which his sister then conveyed to the applicant.

30. I have considered what I have accepted above of the applicant’s claims. I accept that she was in a relationship with her partner in which she experienced family violence. However, after she travelled to Honiara she was not pursued by her partner. She has had no direct contact with him since November 2020, and he has not sought to see or contact the children as a form of leverage over her. Even if he made a comment to his sister about getting the applicant back this appears to have been a single threat, and her partner had not acted on this in the almost year she was in Honiara, nor has he attempted to contact her or the children since they left. The information before me, when looked at fairly, appears to me to indicate properly that her partner does not have sufficient motivation to pursue her to Honiara, in the past, nor, it appears to me from the information before me, in the future. I understand the applicant’s concern that under traditional law and custom he has paid the bride price and might think of the applicant and the children as his property. However, this general understanding does not appear to be the case in the specific circumstances of the applicant, where her partner did not come to Honiara to see her or to assert his ‘rights’ in the almost one year she was there, nor has he attempted to contact her directly since then.

31. I find that if the applicant returns to Honiara to her children and lives with her parents there, her partner will continue to not show an interest in her or the children as he has in the past, and will not seek to come to them in Honiara to assert his ‘rights’ over the applicant or the children or to make her return to the village, nor will he be violent to her. I find that he may have made a threat to his sister but that that is all it was, a threat, with, from his other lack of behaviour demonstrating an interest in the applicant or the children, no intention on his part to carry this out. 

32. I asked the applicant if there was any other reason or basis she thought she may be harmed on return to Solomon Islands and she said it was only the violence from her partner. She said that she wanted to stay here to work and support her kids and her family and that life in the Solomon Islands is hard. I accept this but I find there is no real chance or real risk of her suffering serious or significant harm on this basis, she will return as someone who has worked overseas and will have the support of her parents.

33. I find that there is no real chance of the applicant suffering harm from her partner/traditional husband because as I have found above, he will not come to Honiara to assert his rights and will not seek to make her return to the village, and therefore there is no real chance of him being violent or harming her now or in the reasonably foreseeable future.

34. Having regard to the information before me, and my findings above in relation to the real chance, I find that there is no real risk of the applicant suffering harm from her partner/traditional husband because as I have found above, he will not come to Honiara to assert his rights and will not seek to make her return to the village, and therefore there is no real risk of him being violent or harming her now or in the reasonably foreseeable future.

35. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

36. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

37. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

38. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Sean Baker
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …