2314795 (Refugee)

2314795 (Refugee) [2023] AATA 4858 (18 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2314795
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Lilly Mojsin
DATE:18 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 December 2023 at 9:45am
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – single mother – separated from husband –domestic violence – difficulties obtaining employment if removed from Australia – original protection claims withdrawn – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2023 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Solomon Islands, arrived in Australia on 21 October 2021 as the holder of an International Relations (subclass 403) visa and applied for the visa on 24 June 2022, claiming to fear harm in the Solomon Islands because she was not able to obtain protection from threats of harm from non-state actors.
The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm, within a reasonably foreseeable future on her return to the Solomon Islands. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the review application.
The applicant appeared before the Tribunal, on 25 October 2023, to give evidence and present arguments.
The applicant was assisted by a Pidgin interpreter.
CRITERIA FOR A PROTECTION VISA
See Annexure A.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s passport was issued [in] August 2021. In her PV, she states that she is Christian, single mother and an ethnic Slovene. She arrived in Australia [in] October 2021 and applied for this visa, eight months later, [in] June 2022. She is employed as a [Occupation 1] in [City 1] Australia.
The applicant attended high school in Honiara. She claims she left Solomon Islands to save herself from the big group of the community and the local government. She was forced to withdraw her support to the government and a local NGO group unnecessarily questioned and harassed her. She contacted the police but instead of helping her they tortured her. She tried to move to another state but most probably there was the other ruling party. If she returned she will be put behind bars. She is taken as a challenge by the government and opposition party. The authorities are harassing her and the people of her community so there is no question of going to them to seek help.
In a statement attached to the PV application, the applicant stated:
I was leading a happy and peaceful life at [City 2] working as an employee. I was working in a small scale business [in industry 1]at “[Company 1]”. The business was deal with arranging[description of company]. One day I received some [goods] from one party to be delivered to other state and country which I did immediately as per the instructions of my boss who was working as per the instruction the money giver.
I never realized that the [goods] given to me to delivered are from the fraud businessman by doing fraud in country. When the party who gave [the goods] came to realize that they have been cheated and deceived by an agent. The person who was cheated took the legal recourse. He dragged the accused in the court but shockingly my name was not included in an F.I.R (First Investigation Report). When I had not saw my name along with two accused [Mr A] and [Mr B] , I was shocked as I had nothing to do with these financial transactions. I was merely facilitating the transaction in the safe and hassle free manner as per the instruction of my company. I became the centre of target of some people as I was chased by them wherever I went. I quited this business and decided to work in [City 3] but I was traced even there and was beaten by some people as they considered me to be to at fault for the money that was transacted. I went to other place , my native village but was spotted there also. I had no other option, I have to leave [Country 1].
At the Tribunal hearing the applicant confirmed she was not an ethnic Slovene. She said that her application was written by a local Indian and everything he wrote about a business in her PV application and Network finance was not true.
The applicant explained that she left the Solomon Islands as she was granted an opportunity to come to Australia to have a job to support her family. She did not leave the Solomon Islands because of fear of anybody. She had problems with her husband and she has a[child], who lives with her mother. Her husband treated them badly. He would beat her so in August 2019 they broke up. Her husband does not assist with her[child]’s support. When she lived in the Solomons she worked [in an industry]. Her husband moved away somewhere else. He walked out and threatened her and demanded she never marry. He is married but he was tracking her in Honiara.
I asked her what she fears about returning to the Solomon Islands and she said that her husband wants to keep their [child], he will track her when she returns. I put to her that she is Australia and her husband can have her now as he is the father but has not done so. She agreed and said financially he does not support her. The woman he lives with now does not want her child. Asked why he would want the child when she came back and she said it was because she has made advancements in life and paid school fees for her [child]. She feels he would want to benefit from her advancement in Australia. She believes it would happen.
I put to the applicant that Solomon Islands have laws regarding domestic violence and her husband can be reported to the police. She said in Solomons police delay and do not take seriously reporting of crime. She had a problem with boys who attacked her once but police did not follow up. This happened in 2021 just before she came. I asked how she knew they did nothing as she left to come to Australia. She said when it happened she went to police and they found the boys, the police called her back for review and nothing happened. I put to her that in that instance she is able to complain to the Ombudsman. She said she was aware of that.
She is frightened to go back because in their culture she believes her husband would want her back as he paid ‘bride price’ for her and not let it go. She is still his wife. She put that there needs to be customary payment back for bride price. I asked why this was not done when they separated in 2019. I explained that she had to take up this issue in the Solomon islands legal system.
I explained the independent evidence to the applicant that the Solomon Islands have generally functioning laws, an impartial judiciary, and reasonably effective police force in place so that effective protection is available.
Further I put to the applicant that the process of making a complaint about a Ministry or Agency falls under the auspices of the Office of the Ombudsman. A complaint can be lodged about police inaction
I asked if there was anything else that she feared. She said that when she returns to Solomons she needs to have procedures carried through she would not have money to give to people in authority. I put that she has been working in Australia then she would have some money on her return. She said that she has saved some money but finds it difficult as she pays rent and has expenses and sends money to her parents and every week she provides money to her family. She does not wish to return to the Solomon Islands as she wants to work in Australia.
She again confirmed the claims in her application are not true. She would be very happy if she had a chance to stay and continue in her job before she goes back.
INDEPENDENT EVIDENCE
Solomon Islands is an archipelagic state situated in the south-west Pacific Ocean, approximately 2,000 kms to the northeast of Australia. Its land mass of 28,400 km extends over nearly 1000 islands comprising nine main island groups. The capital, Honiara, is located on Guadalcanal, the largest island.
The population of Solomon Islands, estimated to be about 724,462, is predominantly Melanesian (about 95 per cent) although there are also small Polynesian, Micronesian, Chinese and European communities. There are 63 distinct languages in the country, with numerous local dialects. English is the official language but Solomons’ Pijin is the lingua franca for the majority of people.
A 2013 report by the World Bank[1] on the justice system in the Solomon Islands indicates that open conflict, including violence, is generally the result of local-level disputes, such as theft, property damage, political conflict, or accusations of sorcery. Serious offences, such as murder, rape, incest, and severe physical assault are considered to be rare. To resolve local disputes, victims can seek justice through the Kastom system, state institutions, or the church. The Kastom system is ‘the most frequently utilized and relevant justice system’, which is reliant on local ‘chiefs’ to mediate conflict.
[1] justice-delivered-locally-systems-challenges-innovations-in-solomon-islands.pdf (dfat.gov.au)
According to Freedom House’s report ‘Freedom in the World 2023’ Solomon Islands, 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 the 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.
The 2021 United Nations Office of the High Commissioner for Human Rights, Pacific Community, Situational Analysis 2020 report[2] states the following regarding access to justice within the Solomon Islands: Legal aid is available in criminal, family and civil matters, and is administered by the Public Solicitor’s Office. Historically, the Public Solicitor’s Office is overburdened and under resourced, with recommendations made for the government to recruit more lawyers for the Family Protection Unit within the office. Various UN recommendations have reiterated the need to expand services beyond the capital of Honiara and to reactivate the circuit courts in order to facilitate access to judicial services for victims of violence living outside the capital. The [Universal Periodic Review] UPR Working Group (2016) recommended increased budgetary allocation to the training of police officers and the judiciary to ensure that women have equal and substantive access to justice under the Family Protection Act.
[2] Human Rights in the Pacific. A Situational Analysis 2020, Human Rights & Social Development (HRSD) Division, Pacific Community (SPC) and Regional Office for the Pacific, United Nations Office of the High Commissioner for Human Rights, Pacific Community, 2 August 2021
According to the US State Department Report Human Rights Practices, Solomon Islands 2022, the constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality. The law provides for the right to a fair and public trial, and an independent judiciary generally enforced this right.
While the law provides criminal penalties for corruption by officials, the government implemented the law inconsistently; officials sometimes engaged in corrupt practices with impunity; and corruption was widely held to be pervasive in the government, especially with respect to the forestry, mining, and fisheries sectors.
The Solomon Islands Independent Commission against Corruption is tasked with preventing official corruption and has investigative and prosecutorial powers. The Office of the Ombudsman is responsible for investigating public complaints of government maladministration.
REASONS AND FINDINGS
On the basis of her Solomon Islands passport, I accept that the applicant is a national of the Solomon Islands and a not national or citizen of any other country or has a right to enter and reside in any country other than the Solomon Islands. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that the Solomon Islands is the applicant’s “receiving country” for the purposes of s.36(2) (aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the 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.
I accept that the applicant made claims in her PV application and I accept that she has withdrawn those claims. I find therefore that she was not forced to withdraw her support to the government and a local NGO group unnecessarily questioned and harassed her, the police sis not tortured her, that she did not try to move to another state, that she was not taken as a challenge by the government and opposition party, that the authorities are not harassing her and the people of her community and she did not work for [Company 1]and was involved in illegal activities and she not have to leave [Country 1]. I accept that these claims were untrue and that her PV application was incorrectly prepared by an Indian man.
I accept that the applicant is a single mother whose [child] resides with her mother, in Honiara. I accept that the applicant had issues with her former husband and he is now separated from her and has another wife. I accept that she was the victim of domestic violence prior to her separation in August 2019. She does not claim that she suffered any harm or threats after the separation. She confirmed that she had no fears when she left the Solomon Islands and came to Australia in order to obtain work as the holder of a 403 seasonal worker visa two years later in 2021.
I have considered the applicant’s evidence singularly and cumulatively. I am satisfied the applicant did not suffer serious harm, in the Solomon Islands, for a refugee reason ie. for reasons of her race, religion, nationality, membership of a particular social group or political opinion.
I am required to consider if the applicant will suffer serious harm, for reasons of her race, religion, nationality, membership of a particular social group or political opinion, on her return to the Solomon Islands, within a reasonably foreseeable future.
The applicant claims and I accept that she does not wish to return to the Solomon Islands as she wants to work in Australia.
The applicant also claimed that her husband wants to keep their [child] on her return. I put to the applicant that her husband is there now, he would be able to obtain custody as she is absent from the Solomons and he has not done so. She agreed and also stated his wife does not want the [child]. I therefore do not accept that there is a real chance the applicant’s husband will claim custody of the applicant’s [child] on her return within a reasonably foreseeable future. I am of the view it is mere speculation by the applicant.
As for the applicant’s husband wanting her back, he will track her, seek money from her because she has been working in Australia and will want to benefit from her advancement in Australia or will require payment for the bride price because she no longer lives with him, the husband did not harm her or make any demands or threats when she lived in the Solomon Islands during the two year period after separation. These claims are mere speculation by the applicant. I therefore do not accept that there is a real chance the applicant’s husband will want her back, track her, seek money from her because she has been working in Australia or will want to benefit from her advancement in Australia or will require payment for the bride price, on her return within a reasonably foreseeable future. As for being unable to pay the costs should she need to take legal action, it is mere speculation that she would need to seek legal redress, and further, whilst I accept that she has supporting herself and sending money back to her family, the applicant has been working in Australia. I reject her claim.
The applicant did not agree that she could obtain the protection of the police. The applicant claimed that prior to her departure she was attacked by some boys and the police did nothing. She then said that the police called her back for a review. I reject her claim that the police did nothing as they called her back for a review. Further, when put to her that if she was dissatisfied with police inaction she was able to lodge a complaint with the Ombudsman, she agreed that she could. She did not do so.
I have considered whether I am wrong and there is a real chance the applicant would suffer serious harm from non-state actors. Reliable sources such as US State Department Reports, DFAT and UK Home Office do not suggest that effective protection is not available to the residents and citizens of the Solomon Islands. The independent evidence, cited above, indicates that while domestic violence is prevalent it is now punished by law and there is an Ombudsman to whom complaints can be made about the police, if the police do not act in accordance with the law. The sources confirm that the judiciary have a reputation for independence, though a severe lack of resources has contributed to case backlogs.
Therefore were the applicant to be seriously harmed, the applicant is able to obtain effective state protection against persecution or serious harm from non-state actors and the authorities in the Solomon Islands are willing, and able, to provide effective protection.
I have considered the applicants’ claims and evidence singularly and cumulatively. I am not satisfied that there is a real chance the applicant will suffer persecution for reasons of her race, religion, nationality, membership of a particular social group or political opinion, if the applicant returns to the Solomon Islands, within a reasonably foreseeable future.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
I am required to assess if the applicant will suffer significant harm on her return to the Solomon Islands within a reasonably foreseeable future.

The applicant has not made specific claims for complementary protection separate from those put forward in relation to the refugee criteria.
The applicant is a single mother who is separated from her husband and does not claim to have been harmed by him in the two years prior to her arrival in Australia and I have found that it is mere speculation by the applicant that her husband would harm her on her return. Therefore I do not accept that there is real risk the applicant will suffer significant harm by her husband on her return within a reasonably foreseeable future.
The applicant has been working in Australia and has attained skills as a[occupation 1]. I find that any difficulties in obtaining employment the applicant might experience if removed to the Solomon Islands would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing her to suffer significant harm.
Having considered all of the applicant’s claims, individually and cumulatively, I do not accept that if the applicant returns to the Solomon Islands now or in the reasonably foreseeable future she will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to torture or to cruel or inhuman treatment or punishment, nor will she be subjected to degrading treatment or punishment.
For the reasons given above, I am not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s.36(2A) of the Act, if she is removed from Australia to the Solomon Islands.
I therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

ANNEXURE A
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, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 4858

18 December 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction