2313557 (Refugee)

2313557 (Refugee) [2023] AATA 4538 (24 October 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  2313557
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:David James
DATE OF DECISION:  24 October 2023
DATE CORRIGENDUM
SIGNED:7 November 2023
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:

In paragraph 20, “removed to Solomon Islands” should be “removed to the Solomon Islands”;
In paragraph 66, “citizen of Saudi Arabia” should be “citizen of the Solomon Islands”;
In paragraph 66, “his Saudi Arabian passport” should be “his Solomon Islands passport”;
In paragraph 66, “a national of Saudi Arabia” should be “a national of the Solomon Islands”;
In paragraph 66, “Saudi Arabia is therefore” should be “The Solomon Islands is therefore”;
In paragraph 94, “Australia to Solomon Islands” should be “Australia to the Solomon Islands”; and
In paragraph 97, “other than Solomon Islands” should be “other than the Solomon Islands.”
David James
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2313557
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:David James
DATE:24 October 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 October 2023 at 1:14pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – tribal land dispute and associated court cases – spokesperson of tribe attacked multiple times – abuse and threats against tribal chief father while applicant in Australia – application made two months before working visa due to cease – exaggerated claims – punched once at party – long-running dispute with minor altercations and property damage but no killings or serious harm – country information – land ownership, effective police force and independent judiciary – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHB [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of the Solomon Islands, applied for the visa on 1 August 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to the Solomon Islands, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 2 September 2023. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 19 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the applicant’s uncle, who gave evidence via telephone from the Solomon Islands.
The Tribunal hearing was conducted with the assistance of an interpreter in the Solomon Islands Pidgin and English languages.
The applicant was not represented in relation to the review.
CRITERIA FOR A 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.
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 when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to the Solomon Islands they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the Solomon Islands, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents which have been considered by the Tribunal:
·The applicant’s protection visa application submitted on 1 August 2022 and the annexed copy of the applicant’s bio data page of his Solomon Islands passport;
·The administrative and movement records of the Department relating to the applicant;
·A copy of a hand-written letter under the hand of [Mr. A] dated 18 October 2023 which was forwarded to the Tribunal by the applicant via email on 19 October 2023 in which the writer states:
I am [Mr A] and I am [the applicant]’s uncle. I have witnessed all that has happened to our families and also to [Mr A] concerning the on-going Tribal land dispute.
[Mr A] is under threat concerning the Tribal land dispute. The plaintiffs threaten to kill him constantly. The court case still pending waiting for further hearing from local court and the House of Chiefs; and
·A letter forwarded to the Tribunal via email by the applicant, and on the morning of the hearing under the hand of [Ms B], Solicitor of [Lawyers], Honiara, Solomon Islands in which Ms Samuel states that her firm has been instructed by the applicant for the purpose of the correspondence. Her correspondence outlines the applicant’s Protection visa application history and then repeats his claims as outlined in his application and states that:
We are instructed that [Mr A] has raised various reasons as to why he did not return to the Solomon Islands prior to the expiry of his previous VISSA but that he needs a document to support his claims.
Claims for protection
The applicant, in his visa application reported that he could speak, read and write both in the Solomon Islands Pidgin and English languages. He stated that prior to travelling to Australia on a Pacific Islands work visa he had resided with his family at the family home in [Suburb], Honiara, Guadalcanal in the Solomon Islands since his birth and up to him departing for Australia [in] August 2021, some [Number] years. He reported that his mother, brother and sister were still residing in [Suburb], Honiara. His claims for protection (in summary) are that:
·He left his country as a seasonal worker, but he cannot return back home due to the threatening situations that pose risks to his life;
·He has been attacked on multiple times, and on different occasions by a group of people in dispute with his tribesmen over land ownership and as the spokesperson on behalf of his tribesmen, the people who want to take over their land want to kill him, and he will be badly harmed or killed if he returns home;
·He has reported these attacks to the police on two occasions, but nothing was done about it;
·He and his family have relocated to different places within the Solomon Islands several times, but it is impossible to settle and take refuge in different places or lands due to customary landownership which does not allow them to settle;
·If he goes back home, he will definitely be killed as these people are keen to take over their land;
·He cannot obtain protection from the authorities as his country is now overshadowed by the Chinese communists and with the deep level of corruption that exists within the justice system the police and law enforcement cannot be trusted. His experience is that the police will not protect him from those who pursue his life, and he has not bribed them and does not have a relative in the police department;
·He cannot relocate to other places within the Solomon Islands as he cannot occupy other people’s land. Although he has been relocating since the beginning of the dispute but there is still no place for him and his family to settle.
Department interview
The applicant was not offered an interview by the Department.
Delegates decision
The delegate’s decision of 25 August 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant would be able to avail himself of effective state protection on return to the Solomon Islands should he need to do so. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Solomon Islands, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 29 September 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 19 October 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Country information
The Tribunal has considered the Asian Development Bank’s 2015 Solomon Islands Country Gender Assessment report which provides the following as to the Solomon Islands’ land tenure:
Over 80% of land in the country – and almost all land in rural areas – is under customary ownership recognised in Solomon Islands law. Land is owned by clans but is used by individuals or families.
The leaders of clans make decisions about access and use. Solomon Islands has both matrilineal and patrilineal descendant and inheritance systems. In matrilineal clans, membership of the clan and rights to its land are inherited through the mother rather than through father (as it is in a patrilineal system), but matrilineal clans are headed by men and men make decisions about the use of clan land, including negotiations with investors.
In general, individuals and their immediate families share rights to use portions of their clan’s land holdings. The right to use a particular are of land for agriculture does not confer or imply ownership; traditional principles of land tenure accommodate a system of cultivation of annual crops in which land was fallowed and rotated to maintain soil fertility. Therefore, no single area was considered to permanently belong to an induvial or family. However, nowadays plantations of permanent crops such as coconuts, coffee, or cocoa can confer long-term use rights over the land where the trees are planted, even though ownership continues to rest with the clan group.[1]
[1] ‘Solomon Islands Country gender Assessment’, Asian Development Bank, 2015 [document created 21/10/2015, pp 54-55.
As to the Royal Solomon Islands Police Force, the United States Department of State Country Reports on Human Rights Practices in 2020 provides that:
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.[2]
[2] ‘Country Reports on Human Rights Practices for 2020 – Solomon Islands’, United States Department of State, 29 March 2021.
The Tribunal has also taken into consideration Freedom House’s Freedom in the World 2023 report on the Solomon Islands, where it is reported that:
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.
There are few major threats to physical security, though crime remains a problem in some areas. While the country has a history of internal conflict, the threat has subsided over the past two decades, thanks in large part to security aid from international partners.
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.
In the wake of the November 2021 riots, Chinese police were deployed in March 2022 to train Solomon Islands police officers in combat skills and emergency crowd management. The unpublished security agreement reached with China in April 2022 reportedly allows for the deployment of Chinese armed police to help control disturbances in the country and protect foreign-owned capital assets.[3]
[3] ‘Freedom in the World 2023 – Solomon Islands’, Freedom House, 2023 Part F1
Review hearing – 19 October 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English and Solomon Islands Pidgin languages.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, said that he understood the criteria.
Given the applicant was appearing alone, the Tribunal provided a brief outline of the refugee and complimentary protection criteria, to the applicant, who then acknowledged that he understood the criteria.
The applicant told the Tribunal that he had completed his application for the visa with the assistance of his cousin who had since returned to the Solomon Islands. He told the Tribunal that he was familiar with the contents of his application and that all the information contained in his application was true and correct.
He explained that he had arrived in Australia in August 2021 on a Pacific Islands Work visa through [Company] who was his employer. He said [Company] had picked him up from Brisbane Airport and transported him by road to [Town 1], where he was accommodated on a farm for his quarantine period. After two weeks in quarantine, he was taken to [Town 2] near [City], on Queensland’s [Region], where he worked at a [at workplace 1, doing a job task]. After 10 months in [Town 3], he took two weeks holiday, during which he went to [Town 3] to work on a [workplace 2].

When he had about two months left on his visa, he received a telephone call from his mother in which he was told about threats having been made against his father. He was told that these people who had threatened his father had also said that they knew that the applicant was in Australia and that he would be returning to the Solomon Islands and that they would be waiting for him at the airport.
The applicant explained that these people who had threatened his father and were making threats against him were from a tribe in dispute with his family’s tribe, the [Tribe]. He told the Tribunal that his tribe were from [Village] on the mainland of [Island 1], and in the [Province] of the Solomon Islands. He said he could not remember the name of the other tribe but that they were from the nearby coastal island of [Island 2] and had been in dispute with his tribe for several generations over the control and ownership of the land surrounding his village and that of [Island 2].
He further explained that this land dispute had been before the Courts for the past five years. He said that last year his tribe had been successful before [a] Court in obtaining an order giving his tribe and village the control of the lands in dispute but that the opposing tribe, the plaintiffs, were not satisfied with the result of the court proceedings and had appealed that decision and the matter was now again before the Courts in [Town] (the Provincial Capital of the [Province]).
Under questioning the applicant told the Tribunal that this land dispute between the two tribes had been ongoing for many years and that it had started long before he was born.
He told the Tribunal that, as his father was the Chief of his tribe and is very old and can’t speak properly now, he will soon hand over his tribal role as his tribe’s spokesperson and leader to the applicant.
He explained that his father had always resided in their [Village], but as his parents had separated when he was young, he had moved with his mother to Honiara, the capital of the Solomon Islands. He explained that he had listed his address as being [Suburb] in Honiara, his mother’s address, but that he had throughout his life regularly travelled and lived between his village and his mother’s Honiara address.
The applicant told the Tribunal that after graduating from [Institution] with [a subject 1 qualification] he had obtained employment at a [company] in Honiara as [Occupations 1 and 2] before coming to Australia on his Pacific Islands Work visa.
He told the Tribunal that his brother, who was disabled, still lived in his mother’s home in [Suburb], Honiara where he is cared for by the applicant’s aunt. He said that his sister was presently studying [subject 2] in Honiara and that neither of them had ever been threatened or harmed by the tribe currently engaged in a land in dispute with his tribe and village.
As to his mother he explained that she worked as [an Occupation 3] throughout [Island 1] and was presently working at a [workplace 3] near his father’s village. He said that his mother had on occasion been threatened and/or abused by members of the other tribe but that she had never been harmed by the other tribe. He explained that, as his father was the paramount chief threats had been made to him and the applicant’s mother that the other tribe would kill his father. He further explained that these threats had been ongoing for many years but that no one from the other tribe had actually harmed his father, his mother or any other members of the village.
He explained that there had been incidents of property being damaged, gardens and crops destroyed, and livestock being taken and/or killed which he and his village believed had been done by the warring tribe in dispute with his village and tribe over the control of the surrounding land.
He said that there had been complaints made to the police in [Town] about the damage of property and the killing of livestock but that they had done nothing. Under further questioning he explained that there was no police presence near his village and no road in and out of the village, so police rarely came to the village or to [Island 2].
Under questioning he agreed that, to date and over several generations he was not aware of any persons having been killed and/or seriously harmed during any of the many confrontations between members of the two tribes in dispute. However, he had once been punched by a member of the other tribe, a man called [Mr C]. When asked for the details of this incident, he explained that while he had been at a graduation beach party in Honiara some years ago, [Mr C] had approached him at the party. He said [Mr C] was very drunk and had asked the applicant for some alcohol. When he had refused to give [Mr C] some of his alcohol, [Mr C] had hit him. He said that [Mr C] had since passed away in the Solomon Islands.
When asked if he had experienced any other issues with members of the other tribe, he said that there had been occasions, when he was visiting his village, that members of the other tribe had paddled past his house on the water’s edge, and they had yelled abuse and had made verbal threats directed at him and his father.
He explained that as he had grown older, and the other tribe knew of his father’s aging, he had been subjected to more frequent threats including the abovementioned verbal abuse from members of the other tribe when visiting the local provincial markets.
When asked whether he feared harm from members of the other tribe, he told the Tribunal that he was not scared of them but rather they were a nuisance. Under further questioning the applicant was asked about returning to the Solomon Islands and whether he believed he would be physically harmed, or just be the subject of ongoing threats and verbal abuse, to which he replied that he was not sure whether he would be harmed or killed.
However, when clarification was sought from the applicant as to the basis of his fears, he told the Tribunal that he had never in the past, but for the incident on the beach been harmed in any way by any member of the other tribe.
He further explained that as the elders in both tribes were getting older, there was some uncertainty as to how the new leaders might react in this dispute. This uncertainty was of concern to his family, and in particular to his father.
He said that it was his father that, had raised these concerns with the applicant. He explained that although there had never been any killings or serious harm inflicted on anyone by either tribe in this long running land dispute his father had told him that in the past the elders had always respected each other but that he feared that things might change with the new generation of emerging leaders.
Under questioning the applicant agreed that there had not been any obvious escalation in the damage to property, gardens, crops and livestock or the overall threats and verbal abuse in recent times, although some of the younger men do get into some fights occasionally when intoxicated. The applicant said that he was not aware of any specific escalation in the dispute or the frequency of incidents and that both sides were awaiting the court’s decision in the matter.
He further explained that the dispute had always been more about stealing and destroying gardens and livestock.
The applicant, when further questioned about his fears of harm if he was to return to the Solomon Islands, explained that his fears had arose because of his father having raised his concerns with him that things might change in the future through the younger generation. His father had therefore thought that it would be better for the applicant to remain in Australia until after the court case was decided.
When the applicant was asked by the Tribunal whether his claims of fear were really his father’s fears and not his own fears, the applicant agreed and replied, yes.
As to the police and their ability to provide protection, the applicant said he did not have much faith in the police as he had called them from Honiara when he had been told by his family that the other tribe had destroyed some of the fencing around the villages pig pen. He said that the police from [Town] did not attend. He explained that he knew the police had not attended as he had been told by his family that they had not so attended.
The applicant, when taken through his claims as outlined in his application for the visa, told the Tribunal that he had not been attacked as claimed but that he had put that in his application because he had on occasion been approached and verbally threatened and abused. The applicant stated though that there had been a chance that during those confrontations that he could have been harmed, notwithstanding he agreed he had not ever been so harmed.
As to his claim of having relocated many times within the Solomon Islands he explained that he had moved between his village and his mother’s home in Honiara many times, but he agreed that those relocations were not as a result of the land dispute or him having to relocate to avoid harm.
In relation to his claim in the application that he will definitely be killed if he returns to the Solomon Islands, he told the Tribunal that because of the ongoing dispute between the two tribes he could be killed. In reply the Tribunal commented that given his evidence was that no one to date had been killed or seriously harmed it seemed highly unlikely that he was in danger of serious harm or death to which he agreed. However, he said that although such harm was unlikely, he does not know the intentions of the next generation, so anything could happen.
In relation to his claims of being the spokesperson for his tribe in this land dispute, he agreed that to date he has not made any public comments but when his father passes away, he will then be the Chief and from then on, he will speak on behalf of his tribe and village.
During a break in the hearing the applicant was provided with a copy of the Tribunal’s country information as outlined above at paragraphs 22 to 24. After returning from the break the applicant confirmed he had reviewed the country information and that he agreed with that information and its conclusions.
The Tribunal next heard oral evidence from the applicant’s uncle by telephone from Honiara. He told the Tribunal that he was the applicant’s maternal uncle and that he was concerned about the applicant returning to the Solomon Islands because of the land dispute.
He explained that the dispute is very volatile at the moment because the two tribes are waiting for the decision from the court.
He agreed that no one had ever been killed or serious harmed during this dispute which had been ongoing for many generations. However, he said that some people had died not from any violence but in circumstances where there had been accusations from the other tribe that that they had died because of witchcraft or sorcery. However, he was unable to point to any specific incidents and claims having been made during the land dispute.
He also agreed that the ongoing land dispute had involved incidents of damage to crops and livestock and confrontations between members of the two tribes where there had been verbal threats and abuse but no actual personal violence.
However, he did outline an incident he had heard of whereby several youths and children from the Island had thrown rocks at youths and children from the applicant’s village that had resulted in injuries to some of the children from the applicant’s village, who had needed treatment at the nearby hospital.
He agreed that the dispute was not before the courts and that both tribes were now waiting for a decision from the courts. He explained that at the last court date there had been a large gathering of the two tribes at the Court house and there had been an exchange of hands between the two tribes whereby some of the tribesmen had slapped each other before they were dispersed by the police who were in attendance.
Under further questioning he told the Tribunal that no one had been seriously injured during this exchange of hands at the Court house but that the two tribes continue to be hostile towards each other.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be citizen of Saudi Arabia and provided a copy of the bio data page of his Saudi Arabian passport. Based on this material the Tribunal finds that the applicant is who he says he is, and a national of Saudi Arabia. Saudi Arabia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[4] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[5] This is consistent with the established proposition that it is for the applicant to make his or her own case.[6]
[4] Section 5AAA of the Act.
[5] Ibid (with effect from 14 April 2015).
[6] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[7] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[8]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[7] Fox v Percy (2003) 214 CLR 118
[8] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[9] A similar approach is taken in the Department’s Refugee Law Guidelines[10] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[11] which provides useful guidance for this Tribunal.
[9] SZLVZ v MIAC [2008] FCA 1816 at [25].
[10] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[11] UNHCR, re-issued February 2019 at [203]–[204].
Land dispute
The applicant claims that he cannot return to the Solomon Islands for fear of harm arising from a long-standing land dispute between his tribe and the neighbouring tribe as to the ownership and control of the land encompassing and surrounding his [Village] and the nearby coastal island of [Island 2] on the coast of [Island].
It is the applicant’s claims that he will be badly harmed or killed if he returns to the Solomon Islands, as he has been attacked on multiple occasions by members of the other tribe, has not been protected or assisted by the Solomon Islands police, is the imminent spokesperson for his tribe, and has relocated within the Solomon Islands several times to avoid conflict.
However, under questioning at the hearing, it was the applicant’s evidence that the land dispute had been ongoing for many generations and although it had involved some damage to property, gardens, crops and livestock, no one from either tribe had ever been killed or seriously harmed. He told the Tribunal that he himself had been the subject of some incidents of verbal abuse and threats being made towards himself and other members of his tribe. He described incidents such as the other tribesmen having paddled past his coastal home in the night where they yelled abuse and made threats towards him and his family.
He explained in his oral evidence that the only incident in which he was physically assaulted was an incident at his graduation from university where he was approached at a beach party at Honiara by a man known to him as [Mr C] who was from the other tribe in the land dispute. He explained this man approached him and was very drunk and had asked the applicant for some alcohol. When the applicant refused to give him some of his alcohol, [Mr C] struck him.
It is difficult to accept that an isolated alcohol fuelled minor assault in circumstances where the applicant was not targeted because of the land dispute, but rather had been requested to share some alcohol, could be found to be evidence of the applicant being at risk of personal physical harm because of his tribes ongoing land dispute with their neighbouring tribe.
Given it was the applicant’s evidence that his claimed fears were in fact those expressed to him by his father and that he himself stated that he did not fear the other tribesmen in the land dispute, describing them as merely being a nuisance, it is clear the claimed fears of the applicant are that of his father’s and not the applicant’s fears.
Although during the hearing, the applicant occasionally sought to back away from his evidence relating to not fearing harm from the other tribe, he at best could only explain that as his father had been concerned that the emerging younger leaders from the other tribe may change their approach as to the use of violence, he was consequently not sure what the other tribe might do and whether they may even kill him in the future.
However, given the long history of this dispute having unfolded without serious harm or death on either side of the dispute it is not accepted by the Tribunal that any new emerging leaders are likely to change how the dispute has been managed, especially given the matter still remains before the courts awaiting a final determination.
When questioned specifically as to his claims, the applicant told the Tribunal that he had not been attacked on multiple occasions, but rather been confronted by members of the other tribe on occasions where there had been an exchange of verbal threats and abuse only.

As to his claims that he had not received assistance from the police, he explained that on one occasion, he had contacted the police in [Town], the provincial capital, while he was in Honiara and had been told that there had been an incident at his village in which pig pens had been damaged and some pigs killed and/or stolen. He claimed that the police took no action. However, it was also his evidence that the police could not readily access his village in response to his complaint as there was no access road and the only way to attend his village was to drive along a road and then walk to the village over some distance. The applicant’s claims as to the police is also contrary to the evidence of his uncle, who described how the police in [Town] had intervened and separated the warring tribes outside the courthouse during one of the court hearings as to this land dispute.
The Tribunal when considering that the applicant had only made one report from Honiara to the provincial police in [Town] about an incident that did not involve any persons being assaulted or at risk of being assaulted, or otherwise harmed and that the police having attended and intervened at the court proceedings of the land dispute in [Town] when members of the tribes had started to slap each other and the country information as outlined above as to the effectiveness of the Solomon Islands police does not accept that the applicant cannot, if needed, obtain the assistance and protection of the police in the Solomon Islands.
In so far as his claims of police corruption the applicant provided no evidence, examples of or documents in support of his allegations and he was unable to advance any information as to any basis of his claims in regard to police corruption, but for the incident of him having made a complaint to police in [Town] and the police not having attended his village in response.
In relation to the applicant’s claims of having relocated to different places several times but having been unable to settle anywhere. It was the applicant’s evidence and that of his uncle that he had only ever lived at his father’s village in [Island 1] or at his mother’s home in Honiara. Further that throughout the applicant’s [years] in the Solomon Islands he had moved freely between those two homes. As such the Tribunal; rejects the applicant’s claims as having relocated on many occasions to escape the tribal land dispute.
Regarding claims of fearing harm if he was to return to the Solomon Islands because of his role as his tribe’s spokesperson during the tribal land dispute. The applicant explained during the hearing that he has not been his tribes’ spokesperson and has not made any public statements or was a witness in the current court proceedings. However, he explained that as his father, the Paramount Chief of his tribe, was old and unwell, he will be expected upon his father’s death to take over his father’s responsibilities, so he will in the future likely be his village’s spokesperson.
The Tribunal, after careful consideration of the evidence before it, has rejected the applicant’s claims as to him fearing harm from his rival tribe’s land claims and their ongoing land dispute in its entirety.
Although the Tribunal is satisfied of the longstanding and ongoing land dispute between his tribe and their rival tribe from [Island 2], given the long history of the dispute in which no one has been killed or seriously injured, but for an isolated incident when some rival youths threw stones at each other, the Tribunal is not satisfied that the applicant faces a real chance of serious harm.
The risk to the applicant of harm arising from this land dispute can only be described as being very remote at best.
Therefore, given the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to the Solomon Islands in the reasonably foreseeable future on account of his tribe’s land dispute with their rival tribe from [Island 2].
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Solomon Islands, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complementary protection criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Solomon Islands.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4538

24 October 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies