2314895 (Refugee)

2314895 (Refugee) [2024] AATA 1771 (15 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2314895

COUNTRY OF REFERENCE: Solomon Islands
MEMBER:Jane Marquard
DATE:15 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 February 2024 at 9:49am
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – race – Malaitan in Honiara – employment – economic conditions – attack on home – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 91, 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014
Migration Regulations 1994, Schedule 2, cl 866.611
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
SZTEQ v MIBP (2015) 229 FCR 497
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

The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 6 September 2023 to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND AND OVERVIEW
The applicant claims to be a citizen of Solomon Islands. He is [age] years old and unmarried.
He applied to the Department of Home Affairs (the Department) for the protection visa on 7 April 2023. He claimed in his application that he would suffer economic hardship if he returned to the Solomon Islands.
No interview with the Department was held and a decision was made on the application. A delegate of the Department refused the visa on 6 September 2023 on the basis that the applicant did not meet the refugee criterion, as economic hardship was not one of the specified reasons for persecution set out in the legislation. The delegate also found that the applicant did not meet the complementary protection criterion as there was no evidence that he would face significant harm.
By way of background, according to the Department of Foreign Affairs and Trade Country Brief:
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 km² 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.[1]
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Brief Solomon Islands’.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[3] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[4] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]
[3] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[4] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
a.are a refugee (the refugee criterion);[6] or
b.qualify for complementary protection (the complementary protection criterion);[7] or
c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[8]
[6] Section 36(2)(a) of the Act
[7] Section 36(2)(aa) of the Act.
[8] Sections 36(2)(b) and (c) of the Act.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).
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–5LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
The applicant must satisfy the statutory elements
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.
EVIDENCE
The applicant was invited to appear before the Tribunal on 9 November 2023 to give evidence and present arguments in relation to issues arising in the review. The applicant did not appear at the time scheduled. After the hearing he emailed the Tribunal to say that he had not seen the hearing invitation and had changed address. On 10 November 2023 the Tribunal invited him to a rescheduled hearing on 13 December 2023. The applicant appeared at the hearing on 13 December 2023 by MS Teams video, as he was residing in country NSW. As he was unrepresented, the Tribunal took steps to explain the processes and outline the law to assist him.
The Tribunal has taken into consideration the evidence before the Tribunal at hearing, as well as evidence in the Department application and independent information about Solomon Islands.
The evidence and material before the Tribunal are referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[9]
[9] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
KEY ISSUES FOR DETERMINATION BY THIS TRIBUNAL
In determining whether the applicant meets the refugee or complementary protection criterion, the key issues are:
·Whether the incidents described by the applicant took place in Solomon Islands (findings of fact).
·Whether there is a real chance of serious harm for one of the reasons set out in the legislation.
·Whether there is a real risk of significant harm.
These issues and other threshold issues are discussed below.
FINDINGS AND REASONS OF THIS TRIBUNAL
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a passport from Solomon Islands, issued in 2021. The Tribunal is satisfied based on his passport and testimony that the applicant is a national of Solomon Islands and that Solomon Islands is the receiving country for the purposes of the legislation.
Personal particulars and background
The Tribunal accepts the personal particulars provided by the applicant in his application and at the Tribunal hearing as they have been provided consistently and there is no reason to doubt them. The applicant appeared to be a forthright and honest witness.
The applicant was born in [specified year] in [a named village], in Malaita province, Solomon Islands. However he lived in the capital, Honiara, ‘since the ethnic crisis’. His family moved to Honiara after their house was burnt. His parents and [family members] live in Solomon Islands. He lived with them prior to travelling to Australia. They were permitted to build a house by the tribal owners of the land. The applicant is not married but has a [child] who is living with his parents in Honiara. His brothers are employed on contracts as [occupation 1s]. [Details deleted].
His aunts and uncles also live in Honiara but they are not close. His cousins live in the provinces.
The applicant went to school until 2010 in Malaita when he was in [grade] but after that he had no ‘sponsor’ for his education and had to give up school. He said that he found it difficult to get work as he had no qualifications. He said that he was interested in [an industry]. The economy was not good and there were tensions in the government. He said that he farmed cash crops, but it was hard to survive. They grew crops such as [specified produce] and sold them in the market.
The applicant is from the Melanesian ethnic group and is a Seventh Day Adventist. He said that he is not religious.
The applicant travelled to Australia ‘through a scheme of the Australian government’. He saved for a year, applied to a firm in Solomon Islands, went to an interview and was accepted. He had to pay an agent for a visa and air ticket. Once he started working the payment was deducted from his wages. He has now paid them back. It was arranged for him to work in Queensland for [Employer 1] on a [farm].
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation (the refugee criterion)?
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.[10]
[10] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
Is there a real chance of serious harm (economic hardship) for one of the reasons set out in the legislation?
The applicant claimed in his application that he travelled to Australia through the Pacific Labour Scheme to work on a farm. He said:
My term is expiring soon and there is no extension of contract which is the reason I am applying for this visa. My future looks bleak and I need to work here in order to support my family back home. Life in Solomon is hard and only those people that are qualified get to find a job where as people like me are left behind. The rich are getting richer and the poor are getting poorer. If given an opportunity here, I know that I can support my family.
He said in his application that he would suffer economic harm, as he could not get a job and raise his child, and there are no services. He claimed that he could not pay for schools or health services. He said that he could be stressed and might want to kill himself.
The applicant confirmed his fears at the Tribunal hearing, saying that he applied for a protection visa as it was difficult for him to get a job and survive in Solomon Islands, which was politically unstable. He said that most job opportunities are controlled by the Chinese or for those with qualifications, and the government ‘does not look after them’ and they do not provide services such as health services. He said that even those with qualifications cannot find jobs. He said that he is happy in Australia as it is a chance to work and help his parents. In the last year there has been burning and looting of shops and prices increased, and people did not have money for rice.
The applicant said that he heard about applying for a protection visa by looking online and a friend helped him fill in the form. He said that everything he wrote in the application is true and accurate.
In support of his application for review he provided to the Tribunal Statutory Declarations from his parents. Both his father and mother confirmed that the applicant had travelled to Australia in search of job opportunities to financially support his family. His father said that Solomon Islands has a very high unemployment rate and his son had not secured a job prior to travel. Also provided was a Statutory Declaration from his neighbour, who confirmed that the applicant had travelled to Australia to support his family as he could not find work in Solomon Islands.
There is no doubt that life is difficult for residents of the Solomon Islands, with few jobs available and significant economic hardship. The DFAT Country Brief for Solomon Islands states:
Solomon Islands is one of the Pacific's poorest countries, with high costs of service delivery due to a small and geographically dispersed population. The majority of the population (growing at about three per cent per annum) is involved in subsistence/cash crop agriculture, with less than a quarter involved in paid work. Agriculture and raw materials (including logging) accounted for 92 per cent of exports, leaving the narrow-based economy vulnerable to shocks.
Solomon Islands experienced severe economic contraction and stagnation over the period of the ethnic conflict (1998-2003). During the deployment of RAMSI (2003-2017) Solomon Islands had relatively consistent economic growth. In 2020, the COVID-19 pandemic impacted on Solomon Islands economy with GDP growth declining by 4.5 per cent, and a further 4.5 per cent contraction in 2022, the third consecutive year of contraction. Major constraints to growth and private sector investment remain, including poor infrastructure, under-developed labour skills, high utility costs, land tenure issues, and limited public administration and financial management capacity, which have been exacerbated by the impact of COVID-19. The IMF estimates the economy is expected to start recovering in the second half of this year and rebound further in 2023.[11]
[11] Department of Foreign Affairs and Trade, ‘DFAT Country Brief Solomon Islands’.
The Tribunal accepts that the applicant may suffer economic hardship if he returns, given the economic circumstances described above and in his testimony and supporting statements. As he has no qualifications and unemployment is high it may be difficult to find a job and help support his family in the way he has been able to do in Australia. The Tribunal is sympathetic to his wish to work in Australia to earn money for his family. Notwithstanding this hardship, in order to meet the refugee criterion there must be persecution for one of the reasons mentioned in s 5J(1)(a) of the Act. These reasons are race, religion, nationality, membership of a particular social group or political opinion. As stated by the UNHCR, when referring to the Convention which similarly requires reasons for persecution, ‘the expression “owing to well‑founded fear of being persecuted” – for the reasons stated – by indicating a specific motive automatically makes all other reasons for escape irrelevant to the definition. It rules out such persons as victims of famine or natural disaster.’[12] These matters were put to the applicant at hearing.
[12] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees>.
Independent reports do not suggest there is discrimination in finding work based on ethnicity.[13] Clearly, independent reports indicate that economic factors are the cause of financial hardship for citizens of Solomon Islands[14] although there are some indications of growth.[15] The Tribunal is not satisfied that the applicant will face unemployment or financial hardship for reasons of race, religion, nationality or political opinion. The Tribunal is not satisfied that the applicant is a member of a particular social group as s 5L of the Act requires that there must be a characteristic which distinguishes the group from society, which does not apply to persons impacted by economic harm, or that he would suffer harm for membership of such a group.
[13] See for example, United States Department of State, ‘2022 Country Reports on Human Rights Practices Solomon Islands’, 2023.
[14] Department of Foreign Affairs and Trade, ‘DFAT Country Brief Solomon Islands’, World Bank, 2022 < SOLOMON ISLANDS MPO (worldbank.org)>.
[15] World Bank, 2022 < SOLOMON ISLANDS MPO (worldbank.org)>; Asian Development Bank, <Solomon Islands: Economy | Asian Development Bank (adb.org)>.

The Tribunal is not satisfied therefore that the persecution he fears is for reasons of race, religion, nationality, political opinion or membership of a particular social group.
Furthermore, under the legislation, persecution must involve systematic and discriminatory conduct.[16] The Full Federal Court observed in SZTEQ v MIBP (2015) 229 FCR 497 that ‘systematic’ is used in s 91R(1)(c) in the same way that ‘discriminatory’ is used – to direct the decision-maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental.
[16] Section 5J(4) of the Act.
As discussed with the applicant at the Tribunal hearing, it is well established that ‘persecution’ within the meaning of the Convention involves a discriminatory element. Courts have consistently held that the discriminatory element of persecution involves an element of motivation on the part of the persecutor and it should be deliberate.
The Tribunal is not satisfied that there would be persecution involving systematic and discriminatory conduct were the applicant to return to the Solomon Islands, as financial hardship would be caused by economic circumstances.
The Tribunal is not satisfied therefore that there is a well-founded fear of persecution on the basis of economic hardship.
Is there a real chance of serious harm for reasons of political opinion/nationality?
At the Tribunal hearing the applicant was asked if he has any other fears of returning to Solomon Islands, besides that of economic hardship. He said that he is from Malaita and in 1999 they were ‘chased and their houses were burnt’. He said there is ‘not really peace because the Guadalcanal people do not want us to live in Honiara’. He said that people from Malaita have to live in Honiara to make money. He said that the police are still monitoring the country. He said that the people in Guadalcanal do not want them to live in the island and say they should go back to their provinces.
Asked if he suffered any harm because of this conflict, he said that in 1999/2000 the Guadalcanal people burnt their houses. He said that his cousin’s brother was hurt. He said that at the time they had to ‘keep themselves away from the Guadalcanal people’ who do not like the Malaita people. He said that the Malaita people can live in Honiara but the Guadalcanal people are ‘not really happy about having them’. There are tensions because ‘his uncle injured one of them’ and although he had not suffered any harm, he had been bullied by some elders. They told him to go back to his own island, and not plant on their own land.
The Tribunal acknowledges the historical animosity between the Guales and Malaitans which resulted in hostilities between 1998 and 2003. The United States Department of State Report on Human Rights Practices noted that the country has more than 27 islands with approximately 70 language groups.[17] Many Islanders see themselves as first members of a clan, then as inhabitants of their natal group and third as citizens of the country.[18] Historically, there has been ‘intense and bitter rivalry’ between the Istabus on Guadalcanal, the largest island, and migrant Malaitans from neighbouring islands.[19] Civil unrest broke out between the two groups between 1998 and 2003. The Regional Assistance Mission to Solomon Islands described it as follows:
The Tensions were a period of civil unrest that was mainly characterised by fighting between different ethnic militant groups. In December 1998, existing ethnic tensions on Guadalcanal rapidly escalated. Many Guales (people ethnically from Guadalcanal) resented the influence of settlers from other islands and their occupation of undeveloped land in and around Honiara. The settlers, mostly from nearby Malaita, were drawn to Honiara by comparatively greater economic opportunities.
Guale militants, under the banner of the Isatabu Freedom Movement (also known as the Guadalcanal Revolutionary Army), began a campaign of intimidation and violence towards Malaitan settlers on Guadalcanal. During the next year, thousands of Malaitans fled back to Malaita or to the capital, Honiara, where there was a large Malaitan community. In 1999, the Malaita Eagle Force was established in response.[20]
[17] United States Department of State, ‘2022 Country Reports on Human Rights Practices Solomon Islands’, 2023.
[18] United States Department of State, ‘2022 Country Reports on Human Rights Practices Solomon Islands’, 2023.
[19] BBC News, ‘Solomon Islands Country Profile’, 23 August 2023.
[20] Regional Assistance Mission to Solomon Islands, <The Tensions – RAMSI>.
A peace deal was signed in 2000 but lawlessness continued and a peacekeeping force was deployed to the islands between 2003 and 2017.[21]
[21] BBC News, ‘Solomon Islands Country Profile’, 23 August 2023.
The Tribunal put to the applicant that sources suggest that currently there is peace in Solomon Islands notwithstanding the tension between the ethnic groups.[22] He agreed, confirming that this peaceful situation is because the police have guns as Australia has sent security aid.
[22] Department of Foreign Affairs and Trade, ‘DFAT Country Brief Solomon Islands’; United States Institute of Peace, ‘Searching for Peace in the Solomon Islands’ 14 September 2023; BBC News, ‘Solomon Islands Country Profile’, 23 August 2023.
He said that the state is currently protecting Malaita people. Asked if the police and army could continue to protect them, he said that he fears that the people in Guadalcanal could ‘rise up as they did in 1999’. He said that ‘they have a plan to send people from Malaita home’. He said that the custodians of the Guadalcanal province will harm him and there is no work anywhere else so they are forced to live in Honiara. He said that they force themselves to live there because there is no work elsewhere. He said that in Malaita if he planted cash crops there is no place to sell his crops. He said that he does not want to return as ‘100%’ people from Guadalcanal ‘are not happy’ with Malaita people and ‘will do something to hurt them’.
The Tribunal accepts that ethnic tensions continue in the region and that Malaita people suffer ostracism from some local people in Guadalcanal. Sources suggest that tensions and resentment between Guadalcanal and Malaitans on Guadalcanal Island have persisted including over jobs and land rights.[23] A protest took place in 2021 involving rioting, following a decision by the government to formally recognise China.[24] An article in 2023 referred to comments from a Member of Parliament from Malaita who said that Malaitans were living in squats around Honiara, and there had been no plans for development in Malaita despite poor infrastructure.[25]
[23] United States Department of State, ‘2022 Country Reports on Human Rights Practices Solomon Islands’, 2023.
[24] Reuters, 30 November 2021, <Explainer: What is behind unrest in the Solomon Islands? | Reuters>.
[25] RNZ, ‘Solomon MP says root causes of ethnic tensions remain’, 10 August 2023.
The Tribunal does not accept that there will be attacks on the Malaitans in the reasonably foreseeable future by people in Guadalcanal, based on sources referred to below.
The United States Department of State Report on Human Rights Practices in Solomon Islands states that Solomon Islands is a constitutional multiparty parliamentary democracy and observers considered the 2019 parliamentary elections generally free and fair.[26] The report states that the law and constitution protect racial and ethnic minorities from discrimination and the government enforced them effectively.[27] Freedom House reports that political rights and civil liberties are generally respected although there are weaknesses in the rule of law.[28] There is no reference in various human rights reports to serious harm being committed against the Malaitan people or on the basis of what took place during the period of time known as The Tensions.[29]
[26] United States Department of State, ‘2022 Country Reports on Human Rights Practices Solomon Islands’, 2023.
[27] United States Department of State, ‘2022 Country Reports on Human Rights Practices Solomon Islands’, 2023.
[28] Freedom House, 2023, <Solomon Islands: Country Profile | Freedom House>.
[29] United States Department of State, ‘2022 Country Reports on Human Rights Practices Solomon Islands’, 2023; Freedom House, 2023, <Solomon Islands: Country Profile | Freedom House>; Human Rights Watch, ‘World Report 2023’.
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept,[30] – not only must a person fear persecution, there must also be a prospect of that fear being realised.
[30] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[31]
[31] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p 171.
In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.
The applicant has not suggested that he has been harmed in recent years prior to travelling to Australia for reasons of his political opinion or ethnicity and has acknowledged that the situation is currently peaceful, a conclusion reinforced by the sources mentioned above. He has suggested that people from Malaita are not welcomed in Honiara. Although there are difficulties for Malaita people finding jobs in their own region and not being welcomed in Honiara, the Tribunal is not satisfied that there is a real chance of serious harm if the applicant were to return to Honiara or Malaita in the reasonably foreseeable future. While there may be some ostracism and/or discrimination from local people, the Tribunal is not satisfied that this amounts to the kind of serious harm envisaged by the legislation. The Act provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.[32]
[32] Section 5J(5) of the Act.
These are indicative kinds of harm only, and there may be other kinds of serious harm. However, the examples indicate that the legislators intended that the harm be of a serious nature. The sources referred to above do not suggest there is current violence or other kinds of serious harm being inflicted on people from Malaita, and the Tribunal is not satisfied that ostracism amounts to serious harm.
The applicant has suggested that people in Guadalcanal may rise against the Malaita people but the sources do not suggest that such an uprising is expected in the reasonably foreseeable future.[33] The Tribunal is satisfied that the chance of such uprising is speculative only[34] and not a substantial or non-remote chance.[35]
[33] RNZ, ‘Solomon MP says root causes of ethnic tensions remain’, 10 August 2023; United States Department of State, ‘2022 Country Reports on Human Rights Practices Solomon Islands’, 2023; Freedom House, 2023, <Solomon Islands: Country Profile | Freedom House>; Department of Foreign Affairs and Trade, ‘Country Brief Solomon Islands, <Solomon Islands country brief | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)>.
[34] MIEA v Guo (1997) 191 CLR 559.
[35] Chan v MIEA (1989) 169 CLR 379.
The Tribunal is not satisfied therefore that there is a real chance of serious harm for reasons of the applicant’s ethnicity or political opinion.
Findings on refugee criterion
For the reasons set out above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
Does the applicant meet the complementary protection criterion?
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. The pain or suffering must be intentionally inflicted. According to the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 the meaning of intentionally inflicted and intentionally causing in the context of s 5(1) of the Act requires an actual, subjective intention on the part of a person to bring about the suffering by their conduct. As there is not actual intention to cause the financial hardship in this case, these kinds of harm are not applicable.
As put to the applicant at the Tribunal hearing, it does not appear that economic hardship would amount to any of the kinds of significant harm. It would not be arbitrary deprivation of life, the death penalty or torture. It would not be cruel or inhuman treatment or degrading treatment or punishment as this must be intentionally inflicted. The applicant claimed that he will suffer significant hardship but the Tribunal does not accept that it would be intentionally inflicted as it is grounded in economic circumstances and conditions, rather than a wilful act.
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 Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that there is a real chance of serious harm based on the applicant’s political opinion or ethnicity for reasons set out earlier. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.
The Tribunal also discussed with the applicant at hearing that pursuant to the legislation, there is taken not to be a real risk where a real risk is one faced by the population of the country generally and is not faced by the applicant personally. It appears from the country sources that Solomon Islands is regarded as a poor country, where financial hardship may impact the community generally.
Findings on complementary protection criterion
For the reasons set out above, the Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Solomon Islands, there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A – 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.
…

[2024] AATA 1771

15 February 2024

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