2305976 (Refugee)
[2025] ARTA 1935
•25 July 2025
2305976 (REFUGEE) [2025] ARTA 1935 (25 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2305976
Tribunal:General Member K Defranciscis
Date:25 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)(aa) of the Migration Act.
Statement made on 25 July 2025 at 2:32pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – complementary protection – land dispute – physical assault – threats of killing – internal relocation – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51Any 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
BACKGROUND
This is an application for review of a decision made by a delegate of the Minister on 14 April 2023 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is [an age]-year-old Solomon Islands national, first arrived in Australia [in] September 2018 as the holder of a visitor visa. The applicant’s visitor visa ceased [in] October 2018, but he remained in Australia until he made an application for a protection visa.
On 23 August 2019, the applicant submitted an application for a protection visa and was concurrently granted a bridging visa, which remained in place at the time of the hearing.
On 28 October 2019, the applicant applied to amend the conditions on the bridging visa to allow him work rights. The bridging visa conditions were amended on 14 November 2019 to permit the applicant to work.
On 14 April 2023, a delegate of the Minister refused the applicant’s application for a protection visa (delegate’s decision).
On 30 April 2023, the applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal.[1]
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceedings before 14 October 2024 is taken to have been done by the Tribunal.
On 9 March 2025, the applicant provided a pre-hearing information form.
On 14, 20 and 26 May 2025, the applicant filed further evidence and a copy of his hearing response form.
On 3 June 2025, the applicant appeared at a hearing to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Pidgin (Solomon Islands) and English languages, although the applicant was relatively fluent in the English language and rarely required assistance from the interpreter during the hearing. I also had benefit of hearing evidence from Mr [Brother A] in person, and [Officer A] of the Royal Solomon Islands Police Force by telephone.
At the conclusion of the hearing, I reserved my decision and also granted the applicant two weeks to file any further evidence in support of his case.
On 16 June 2025, the applicant filed further evidence in support of his case including witness statements by [Officer A], [Employee A], and [Brother B].
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
Issues
The main issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.
For the following reasons, I have concluded that the decision under review should be set aside and remitted for reconsideration, in accordance with the order that the applicant meets section 36(2)(aa) Act.
Evidence
I had before me various pieces of evidence including the Department file, which included documents provided to it by the Department of Home Affairs (the Department) in respect of the application; movement records of the applicant; country information; the applicant’s pre-hearing information form dated 9 March 2025; and the following documents submitted by the applicant:
·Letter of [Wife A] to the Department of Home Affairs dated [in] May 2025
·Letter of [Brother A] to the Department of Home Affairs dated 26 May 2025
·Letter of [Doctor A], [Hospital 1] to the Department of Home Affairs dated 14 April 2025
·Letter of [Officer A], [Unit 1], Royal Solomon Islands Police Force dated [in] March 2025
·Undated photos of limb
·Letter of [Employee A] dated 9 June 2025
·Letter of [Brother B] dated 10 June 2025
·Letter of [Officer A] dated [in] June 2025
I also had the oral evidence of the applicant, [Brother A] and [Officer A] at the hearing. Relevant aspects of the evidence are summarised below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Land dispute claim
In the protection visa application dated 23 August 2019, the applicant made claims that he left the Solomon Islands due to a land dispute.
In the applicant’s pre-hearing information form dated 9 March 2025 he re-stated his claims regarding a dispute between his family tribe and another tribe over logging/deforestation on their land.
As discussed further below, the applicant resiled from this land dispute claim at the hearing.
Claims of a personal grudge and vendetta against the applicant
At the hearing, the applicant explained his true reasons for leaving the Solomon Islands and seeking protection in Australia.
In summary, he stated that in 2015 he opened a [business 1] named [Business name] in [Town 1] in the Malaita Province. The applicant reflected on the nature of [his business] and how it meant that the business was profitable, but that it came at a personal cost to the people who became addicted.
One of the people to become ensnared by the [business services] was a local resident, [Mr A]. The applicant described [Mr A] as a local, wealthy, business owner who [attended regularly] at the premises. The applicant noted that [Mr A spent] large sums of money at times, [details deleted]. It was in the context of a large [transaction] that [Mr A] became enraged at the applicant, as the owner of the business. [Mr A] began threatening the applicant with all manner of harm such as burning down his home and hurting himself and family. [Mr A] was demanding the reimbursement of large sums of money which he had [spent at the business] and alleged that he had been cheated. [Mr A] was supported in his personal vendetta by his extended family and friends, which included [his] brothers.
The applicant sought assistance from the local police, who refused to assist him on the basis that it was a personal matter. The applicant also noted that the responsiveness of the police to calls for assistance was slow, giving an example of once having his car windscreen destroyed and calling the police for help, only for them to arrive several hours later.[2]
[2] This example is unrelated to the claims, but was provided as an example of the police’s responsiveness to calls for help.
The applicant eventually became so fearful of [Mr A] that he closed the business and relocated with his family to [City 1] in early 2018. Despite relocating away from [Town 1] to [City 1], [Mr A] tracked down the applicant in [City 1] and turned up at the home he was staying at with his family on [a day in] March 2018. [Mr A] arrived at the house with several of his brothers and demanded money from the applicant. When the applicant refused to give [Mr A] money, he was attacked.
Understandably, the applicant’s memory of the attack was impacted by the severe nature of the assault and his loss of consciousness. However, he stated that he recalls being stabbed with a large knife on the lower half of his leg/upper half of his foot by [Mr A]. He recalls falling to ground and being attacked. He stated that he lost teeth in the assault. Further evidence about the attack is set out below in the analysis of the other evidence.
After a short period in hospital the applicant began making arrangements to leave the Solomon Islands. He departed the Solomon Islands and arrived in Australia in September 2018.
The applicant stated that since he has been in Australia, he has continued to receive threats from [Mr A] via his remaining friends and family in the Solomon Islands. The applicant even noted that his children have had to change schools due to ongoing harassment by [Mr A’s] son.
Supporting evidence
Evidence of [Officer A]
[Officer A] provided a letter dated [in] March 2025 about the police investigation of the “unlawful wounding and threatening” of the applicant. [Officer A] described an incident on [the day in] March 2018 between 6pm and 7pm in which [Mr A] assaulted the applicant with a knife.
[Officer A] stated that the applicant was the manager of [Business name] in [Town 1] in the Malaita Province. The detective stated that [Mr A] had attended there, [spent] lots of money, got angry and had demanded the applicant return his money. The detective stated that [Mr A] and his brother threatened the applicant with death and burning down his house. The detective stated that the applicant escaped to [City 1].
[Officer A] recommended that the applicant stay away from the Solomon Islands for his safety.
[Officer A] gave evidence to Tribunal by phone at the hearing. [Officer A] confirmed his identity and position within the Royal Solomon Islands Police Force. He also confirmed how he was familiar with the applicant’s case, noting that he was a police officer at the relevant police station at the time. He does not have a personal relationship with the applicant or his family.
[Officer A] gave oral evidence which was consistent with his letter dated [in] March 2025. He described receiving a report that the applicant had been attacked with a knife by [Mr A] and the reasons for the attack. [Officer A] stated that he could not recall the outcome of the investigation by police into the matter, but would review the file and provide the applicant with a further letter.
After the hearing, the applicant filed a letter of [Officer A] dated [in] June 2025. [Officer A] stated in the letter that he had been assigned the case regarding a report of unlawful wounding on [the day in] March 2018. He stated that [Mr A] was arrested and escorted to the police station for interview on [a day in] April 2018. He was later charged with unlawful wounding and was remanded at [a named] Correctional Centre. [Officer A] concluded the letter by stating that the defendant was released on bail by the court and is still searching for the applicant to kill him.
Evidence of [Doctor A] dated 14 April 2025
[Doctor A] identified himself as a doctor at the [Hospital 1] in [City 1]. Although not stated in the letter, it is apparent that [Doctor A] has provided information about the applicant’s admission and treatment directly from a hospital record given its high level of detail. In summary, [Doctor A] stated that the applicant was admitted on [the day in] March 2018 for a [foot] amputation due to an injury “done by alleged(sic) attack related to some social issues.” [Doctor A] stated that the applicant was discharged [in] April 2018.
The applicant confirmed at the hearing that he recalled the doctor who had cared for him while he was admitted and had asked his wife in the Solomon Islands to track down the doctor such that he could obtain this letter of support.
Evidence of [Wife A]
[Wife A] stated in her letter dated [in] May 2025 that she is the wife of the applicant and mother of their [children]. She stated that the applicant was involved in a serious incident in which [Mr A] stabbed and chopped the applicant’s [foot] on [a day in] March 2018 over a claim of losing money at “our [business 1 named]”. [Wife A] stated that the applicant was discharged from the [Hospital 1] [in] April 2018. She stated that the applicant fled to Australia after his [foot] was amputated.
Evidence of [Brother A]
[Brother A] stated in his letter dated 26 May 2025 that he is the brother by blood of the applicant. [Brother A] stated that the applicant “fled to Australia after he stabbed on his [foot] and then a machette was used to chopping [that] foot again” (sic). [Brother A] stated that a local man had “lost his hard-earned cash” [at the business]. He stated that the applicant’s [foot] was amputated on [the day in] March 2018. He stated that the applicant’s life was still at risk if he returned to the Solomon Islands as his “enemies are awaiting…to murder him”.
[Brother A] appeared at the hearing as a witness for the applicant. However, he confirmed that he was not a witness to the assault or the threats of harm. He stated that his understanding of the facts had been gained through talking to the applicant since he arrived in Australia. In these circumstances, little weight can be placed on [Brother A’s] evidence in terms of making factual findings about important aspects of the claims.
However, [Brother A] impressed the Tribunal as a person of knowledge and understanding about life in the Solomon Islands, having lived there before relocating to Australia. In this regard, the Tribunal placed some weight on [Brother A’s] personal opinion that the people of the Malaita province, where the applicant and [Mr A] had long resided, were known to become quite angry when they felt aggrieved.
[Brother A] also gave his opinion about the small size of the Solomon Islands and the great difficulty that the applicant would have in relocating there, as well as obtaining protection from the authorities. Again, only limited weight could be given to [Brother A’s] opinion evidence, but it nevertheless appeared to be coming from a place of knowledge and experience rather than embellishing in the furtherance of his friend’s case.
Letter of [Brother B]
[Brother B] is the brother of the applicant and confirmed in his letter dated 10 June 2025 that he had witnessed [Mr A] ask both him and other family members, when the applicant will return to the Solomon Islands. He stated that [Mr A] verbally abused him and the family members and threatened to kill the applicant when he returned to the Solomon Islands.
[Brother B] opined that the applicant should remain in Australia to avoid the worsening situation because he believed [Mr A] would kill the applicant.
Letter of [Employee A]
[Employee A] stated in his letter dated 9 June 2025 that he had been employed by the applicant in the [business 1] and had witnessed [Mr A] demanding money and disturbing the business by throwing chairs, tables and telling others not to come to the business.
FINDINGS
Receiving Country
The delegate determined that the applicant had provided sufficient evidence of his identity, which was consistent with a biometrics assessment. A further check of relevant systems revealed no information that raised concerns and so the delegate accepted the applicant’s identity as claimed.
At the hearing, the applicant spoke in detail about his experiences living in the Solomon Islands. There is nothing before me to suggest the applicant has citizenship of any other country, or that he has any right to enter and reside in any third country.
Therefore, based on the available evidence, I am satisfied that:
· the applicant is a citizen of the Solomon Islands;
· s 36(3) of the Act does not apply; and
· the Solomon Islands is the receiving country.
Land dispute and section 367A of the Act
At the hearing, the applicant completely resiled from his claims regarding a land dispute. He stated that “none of that is true”.
I alerted the applicant to section 367A of the Act, insofar as he was presenting new claims and evidence after the delegate’s decision and that his reasons for the delay in making the new claims and filing new evidence would need to be considered in the context of evaluating the credibility of those new claims.
The applicant gave detailed evidence about being assisted with the protection visa application and pre-hearing information form by a person named “[Mr B]”, who was known in the local community as a person who could assist with visa matters. The applicant stated that he paid [Mr B] $300 and had asked him to complete the protection visa application. The applicant also explained his limited understanding about a protection visa, the requirements to provide evidence and his appeal rights.
The applicant also explained his limitations in being able to use the internet and email such that he never received correspondence, for example, the delegate’s decision, which would have alerted him at an earlier stage to the fact that his claims were false. The applicant stated that he was told very little by [Mr B], who had continually assured him that he was taking care of matters for him, right up until the hearing was listed, at which time he essentially ceased helping the applicant. The applicant conveyed his disappointment, shock and anger that he had been betrayed and misled by [Mr B].
In short, I accept the applicant’s reasons as to why he was making new claims and presenting new evidence. The applicant’s explanation about how he relied on [Mr B] to assist him, to his detriment, and how he was unaware of this betrayal, was thoroughly explained. His claim about being unable to use email were evidenced by the fact that he travelled from [Town 2] to Brisbane on two occasions to file documents at the Tribunal registry in person, as he was unable to use email.
Consequently, I draw no adverse inference about the credibility of the applicant’s new claim pursuant to section 367A of the Act. Further, I do not accept the applicant’s claims that he is at risk of harm in the Solomon Islands due to his original claims made in respect of a land dispute. This claim will not be considered further either in the context of the refugee or complementary protection criteria.
Claims of a personal grudge and vendetta against the applicant
I consider the applicant’s oral evidence to be detailed, consistent and compelling. The applicant impressed me as a credible witness during the hearing and this was made all the more clear when he also produced evidence from multiple sources including independent witnesses such as a police officer and a doctor, who were present when the applicant was gravely injured in the Solomon Islands.
There is no dispute that the documents produced are credible given their consistency with the applicant’s narrative and the fact that the Tribunal took oral evidence from [Officer A], who confirmed his written evidence at the hearing.
Therefore, in consideration of the oral and documentary evidence and what it supports, I accept that:
·The applicant owned a [business 1] in the Malaita province.
·Through ownership of this business the applicant became a target of [Mr A], who wanted to seek revenge for the loss of money at the applicant’s business.
·[Mr A] threatened the applicant in such a serious way so as to cause the applicant to fear for his safety, which led to the applicant closing his business and relocating to [City 1].
·[Mr A] remained so aggrieved at the loss of his money that he travelled to [City 1] to seek the return of his money and/or revenge against the applicant.
·On [the day in] March 2018, when the applicant did not cede to [Mr A’s] demands he was attacked by [Mr A] and several other unknown assailants. I accept that during the attack the applicant was stabbed on his [foot] which due to the seriousness of the wound, resulted in an amputation.
·In light of the attack and [Mr A’s] ongoing vendetta against the applicant, that he fled the Solomon Islands by travelling to Australia.
·[Mr A] was arrested and charged at the time of the attack, but has been bailed and a final outcome on the proceedings is unknown.
·[Mr A] continues to threaten the applicant through his family members.
·[Mr A] continues to hold a grudge against the applicant such that he would harm him if the applicant returns to the Solomon Islands.
As per the above findings, I accept all aspects of the applicant’s claims including what has happened to him and why he fears return to the Solomon Islands. The application of these findings to the relevant protection visa criteria is set out below.
Does the applicant satisfy the refugee criterion for protection?
The legislative framework is set out above, but in short, provides that I must determine whether the applicant’s fear of persecution is well-founded, in particular, whether there is a real chance of serious harm if the applicant were to return to the Solomon Islands in the reasonably foreseeable future.
As explained to the applicant at the hearing, serious harm being inflicted on him in the past does not necessarily mean that there is a real chance he will be seriously harmed if he returns to the Solomon Islands now or in the reasonably foreseeable future. However, as per the below findings, I accept that the evidence supports that this is the case.
Having accepted that [Mr A] has previously gone to such extreme lengths by seriously assaulting the applicant due his grievance; and having accepted that he continues to harbour that ill will and desire to inflict harm on the applicant in the future; I accept that there is a real chance that the applicant will suffer serious harm if he returns to the Solomon Islands in the reasonably foreseeable future.
I note the evidence of family members and the applicant that [Mr A] continues to seek out the applicant and continues to threaten action against him if he returns to the Solomon Islands. I note the evidence of [Officer A] who also expressed his view that [Mr A] continued to want to kill the applicant and that the applicant would be better off remaining in Australia. Evidently, being charged with a serious offence by the police and the passage of time, approximately eight years, has not dampened or diminished [Mr A’s] desire to harm the applicant.
Notwithstanding these findings, section 5J(1)(a) of the Act requires that the persecution must be for a refugee reason – race, religion, nationality, membership of a particular social group or political opinion. Plainly, [Mr A’s] grievance and vendetta against the applicant is not due to a refugee reason, but is rather, a personal dispute.
Consequently, the applicant does not satisfy section 5J(1)(a) of the Act and therefore does not have a well-founded fear of persecution.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a), I considered the alternative criterion in section 36(2)(aa).
Under the complementary protection criterion, I must consider whether there is a real risk of the applicant suffering significant harm upon return to the Solomon Islands. The ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[3] Therefore, consistent with my findings above, I find that there is a real risk of harm if the applicant returns to the Solomon Islands in the reasonably foreseeable future.
[3] MIAC v SZQRB (2013) 210 FCR 505
I note that ‘significant harm’ is exhaustively defined in section 36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in section 5(1) of the Act.
Having accepted that [Mr A] has previously wounded the applicant such that he lost part of his [foot], as well as the continued threats of killing the applicant, I accept that there is a real risk of significant harm, within the meaning of section 36(2A) of the Act. In particular, I find that the harm would meet the definition of "cruel or inhuman treatment or punishment" which means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.
I note the exception set out in section 36(2B)(a) of the Act, which provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk of significant harm. I note well-established case law that provides that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country.[4]
[4] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
When this issue was put to the applicant at the hearing, he responded by explaining the very small size of the Solomon Islands such that there was practically nowhere a person could go without it becoming known to others, in particular, those who were out to harm the applicant. He also noted that relocation within the Solomon Islands was not a simple matter of just moving to another city or town like one could in Australia. He stated that each of the respective provinces around the Solomon Islands were home to families and groups that had resided in that region for generations (save for [City 1] which was tended to have a more transient population given its nature of being the sort of city/metropolis for the entire country). The applicant indicated that a person could not just go and live within those other regions or towns for an extended period of time since they were an outsider.
The applicant’s evidence is consistent with country information that indicates there are significant barriers to relocation in Solomon Islands. About 85% of the land in Solomon Islands “is customary land, regulated by unwritten laws and oral tradition passed down from generation to generation” and the process of transferring land is complex.[5]
[5] “Enjoying land rights in Solomon Islands”, 3 December 2021, >
Ultimately, I am not satisfied that the applicant could relocate anywhere within the Solomon Islands that would allow him to avoid the real risk of harm that [Mr A] presents to him. I accept the applicant’s evidence about the relative size of the Solomon Islands and the difficulty that it would be to relocate anywhere that he would not be found by [Mr A]. Leaving aside the reasonableness of having the applicant relocate within the Solomon Islands, I note that [Mr A] has shown a high level of commitment to seeking revenge against the applicant, as demonstrated by the fact that he tracked him down and seriously assaulted him when he endeavoured to relocate from Malaita for [City 1] in 2018 to escape the harm. Despite being charged with serious offences, [Mr A] has continued to seek revenge to the extent that even police officers such as [Officer A] have recommended that the applicant remain in Australia for his own safety. I note that the Solomon Islands is a relatively small nation made up of provinces such that it would become known by [Mr A] very quickly if the applicant was residing elsewhere within the Solomon Islands.
I find that [Mr A’s] personal vendetta against the applicant is so strong that relocation within the Solomon Islands would not amount to a reduction in that real risk of significant harm such that the claim cannot be excluded under section 36(2B)(a) of the Act.
I note section 36(2B)(b) of the Act, which provides an exception if the applicant could obtain protection from an authority such that there would not be a real risk that he will suffer significant harm.
Consistent with my findings throughout this decision, I again note the nature of the real risk of significant harm that [Mr A] presents to the applicant through his ongoing vendetta against him. It has already resulted in the applicant losing part of his limb, leaving him with a permanent disability. That harm occurred in circumstances where the applicant had already made complaint to the local police in Malaita and had relocated to [City 1]. I note the applicant’s evidence about how the police would not be able to protect the applicant in a pro-active way and that any response to calls for help would be likely to be too late. I note that even though the police appear to have taken steps to bring [Mr A] to justice for the alleged crimes against the applicant, it is apparent that the matter remains unresolved.
I give particular weight to the evidence of [Officer A], who as a high-ranking police officer within the Royal Solomon Islands Police Force, gave unequivocal evidence about the applicant’s risks of harm within the Solomon Islands and his recommendation that the applicant remain in Australia for his own safety.
Therefore, I consider that section 36(2B)(b) of the Act does not apply because the applicant cannot obtain protection from the authorities in the Solomon Islands such that the real risk of significant harm that he faces would be meaningfully reduced.
I note that the real risk is one faced by the applicant personally rather than by the population generally and as such the exception in section 36(2B)(c) does not apply.
I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Solomon Islands, there is a real risk that he will suffer significant harm.
Therefore, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
On the available evidence, there is no suggestion that the applicant would have a right to enter and reside in any third country such that section 36(3) of the Act would apply.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies section 36(2)(aa) of the Migration Act.
Date of hearing: 3 June 2025
Representative for the applicant: N/AATTACHMENT - 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.
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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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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