2315773 (Refugee)

2315773 (Refugee) [2024] AATA 2738 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2315773
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Melissa McAdam
DATE:9 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 09 May 2024 at 12:24pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – customary marriage, abuse and assault by family members and ex-husband, and threats of further abuse – non-specific written claims and no response to department’s request to provide further information – substantially more information provided at hearing – personal, consistent and coherent evidence – country information – high levels of domestic and gender-based violence, societal attitudes and police inaction – limited opportunity to relocate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), 5LA(2), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Guo (1997) 191 CLR 559
MIEA v Respondent A (1995) 57 FCR 309
MIMA v Khawar (2002) 210 CLR 1
Morato v MILGEA (1992) 39 FCR 401
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 22 September 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 Solomon Islands, applied for the visa on 9 August 2023.
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.
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.
Protection visa application
The following is a summary of the claims and information the applicant provided in her Protection visa application:
a.She was born in [Year] in [Location 1, Town 1] in Solomon Islands. She submitted a copy of her Solomon Islands passport.
b.She arrived in Australia [in] August 2021 on a Temporary Working visa.
c.The type of harm she experienced was very bad. There was a lot of violence which made a lot of issues. The people who did this were her family members. She didn't want to tell on them in case it would make the problem worst than it already was.
d.She tried to go to some of her family members to sort the problem out but they didn't believe her and didn't give her a chance so she had to go back.
e.All the same stuff will happen if she returns. They will keep treating her with no respect and continue doing it and nothing will be done. She can't keep being like this.
f.The sort of harm was very bad. It included a lot of yelling, screaming and shoving. The people responsible for this were her family. She never did anything wrong but they always just wanted to make her feel bad to show off in front of other family members. They used a lot of bad language which hurt her feelings too.
g.The local authorise don't bother to help or care about what's going on in family violence.
h.Her family will find her easily and she doesn't want them to be able to locate her.
Departmental Letter
On 23 August 2023 the Department delegate wrote to the applicant requesting she provide more details of her claims in writing and explain her delay in applying for a Protection visa.
According to the Delegate’s decision record the applicant did not respond to the letter sent to her on 23 August 2023.
Delegate’s Decision
The Delegate was unable to be satisfied on the information before her that the applicant had a well-founded fear of persecution in Solomon Islands or that she was owed complementary protection.
Information to the Tribunal
With her review application the applicant provided a copy of the Delegate’s decision record to the Tribunal.
Tribunal Hearing, 29 November 2023
The applicant appeared before the Tribunal on 29 November 2023 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant came to Australia [in] August 2021 for [work]. She applied for a Protection visa because in her country she was subjected to family violence and abuse from her family members and husband.
b.The Tribunal asked the applicant why she did not reply to the Department’s request for more details about her application. The applicant responded she lived in a remote area in Solomon Islands so could not go to the police for any records. She could not provide any proof so did not reply to the letter. She has a scar on her [body parts 1 and 2] as proof that her husband bashed her.
c.In her country when a woman marries a man her husband owns her and can bash her.
d.Her parents, husband, [children], one brother and [sisters] are all living in Solomon Islands. She has [details of children].
e.Her children are living with her parents and [sister] in her home [village] on [Island]. Her brother lives in the village too but in a different house. She has a second sister living in the village in her own house. All of her sisters are married and live with their husbands. Apart from the two sisters in her village her other sisters live in other places in Solomon Islands.
f.The applicant’s home village is very small with a population of around 60 or 70 people and about 20 houses.
g.The applicant is in contact with her parents and children sometimes depending upon the telephone and internet networks. She talks to her parents and children. They are all good. She sends money to her mother and her sister [Ms A] to support her children and pay their school fees. The children go to a government school in [Location 2] but it is not free.
h.The applicant’s parents don’t work. They do some small market-gardening. The applicant helps support them.
i.The applicant’s brother works as [an occupation] in the school and village. He is married with children and can support himself and his family. He sometimes helps their parents.
j.The applicant’s ex-husband works in [Work task] for [the employer]. He is on [an employer] contract. He does not support the applicant or their children. He is in a new relationship and married his new wife in 2017.
k.The applicant and her husband divorced in 2015 when her husband left her. The applicant’s husband left her when their [children] were [Age] years old, in January 2015. He then moved to [Town 1] and got another wife. He still lives in [Town 1]. He stopped having contact with their children when he left. He has [children] with his new wife.
l.To get to [Town 1] from the village you have to travel 56 km to [Town 2] and then take a boat for six hours to [Town 1], or fly there.
m.The applicant married her husband in 2006. She did not want to marry him. Her family forced her to. The marriage was arranged by custom. She didn’t want to marry him because they did not have any relationship. Her family wanted the applicant to marry him because he worked and had a job. His name is [Mr B]. He is maybe [Age] or [Age]. He has not been to Australia.
n.The applicant told her family she did not want to marry her husband. Her [sisters] forced her to, they bashed her. Her [sisters], parents and brother all wanted the applicant to marry him. The applicant is the [birth order] in the family.
o.The applicant’s problems with her husband started in 2014 when he bashed her. She ran away to her family but they made her go back to him. Her [sisters], [Ms C] and [Mr D], cut the applicant’s [body part 3] to force her to go back to him.
p.Before 2014 it was good and bad. She sometimes did not enjoy the marriage because her husband would complain about her family eating the food he provided. She would argue with him sometimes.
q.From 2014 her husband started doing what he wanted and would just leave the home and not pay for food for the kids. He would bash the applicant because he didn’t want her or the children because he found a new woman. In early 2015 her husband just left.
r.When her husband left, the applicant had to support herself and her children. She made a garden and did markets at the high school and shared the food to pay her children’s school fees.
s.Her ex-husband left to [Town 1] in January 2015. He later returned to the village by himself in about June 2018. He considered the applicant was his wife so he still owned her. They had not been legally divorced. He tried to get the applicant to follow him to his parents’ house but she and her family refused because he had left her with the children. Her ex-husband then hit her with [an implement] and she has scars on her [body parts 1 and 4]. She had to go to a clinic for treatment. She cannot get a report from the clinic. No one else came to help her when her ex-husband hit her with the [implement]. No one cared. She did not go to the police because they are far away in [Town 2]. The clinic she went to was about 8 kms away in a rural area.
t.Her mother and [sisters] were present and talked to her ex-husband to tell him to stop but he wouldn’t.
u.He was in the village for one or two weeks. He came back to the village again at Christmas time in 2018 with his wife and [children]. The applicant didn’t see him after that.
v.The applicant visited [Town 1] a few times to arrange her visa and travel to Australia. Her ex-husband would see her there and want her to go with him but she would go to other people and not do so. She did not contact him in [Town 1].
w.Her ex-husband would sometimes call the applicant’s cousins to ask about the applicant.
x.Because of what her ex-husband did to her the applicant’s family saw her as unimportant. She became a single mother. When she asked for help there was no help. She had to put her children through school herself. She and her children stayed with her mother in the same house and it was like her parents didn’t want them. Her parents had to work hard for their own food.
y.The applicant’s family saw that her husband was not getting her and the children food and was not treating the applicant well. They realised this and so supported her in not being with him. But they otherwise ignored the applicant and the kids. The applicant’s [sisters] argue with her.
z.If the applicant returns to the Solomon Islands the same thing will happen. There won’t be a solution for her children. Her ex-husband doesn’t support them. Even here he calls his family in Queensland and they say to the applicant if she goes back he will come for her.
aa.The Tribunal put to the applicant that her ex-husband did not come for her after 2018. She responded no but when he sees her he calls. She is not secure in the Solomon Islands. Her kids don’t settle when they see what he does. Now when she video calls her kids they are happy because they see her happy.
bb.The applicant doesn’t think she can stay in her village without problems from her ex-husband. He can call and tell his family to come talk to her. He thinks she is still his wife. He is not legally married to his new wife.
cc.Last year in about June he went to her sister’s place and wanted the kids to go with him. Her parents telephoned the applicant and they all argued with him not to take the children. They eventually succeeded.
dd.She can’t live in another village because she doesn’t have anyone in another village. She would not feel safe in another town because people will think she is an outcast and she is afraid of going anywhere because she is divorced and people will see her. It is common if your husband loses you that people gossip about you in a bad way.
ee.None of the applicant’s sisters have similar problems with their husbands.
ff.She is closest to [one] sister who lives with her husband in a far village. The applicant could not live with them because they would not accept her because of food. They don’t want to share. They would not let the applicant and her children live with them. Her sister might but her sister’s husband would not. That is why she stayed with her mum and dad.
gg.In Australia the applicant works in a [workplace] in rural NSW. She is sending money to her family for them to build their own house in the village. Her aunt, kids, parents and elder sister will live there. She wants to stay in Australia to earn money for her children.
Written Submission
On 20 December 2023 the applicant provided the names and dates of birth of her parents, [siblings], and [children]. [Children’s birth years.]
Tribunal Hearing, 3 April 2024
The Tribunal scheduled a further hearing by video for the applicant on 11 January 2024. The applicant did not appear at the hearing. She subsequently informed the Tribunal she did not have the technical equipment for a video hearing.
The Tribunal then scheduled a further in-person hearing for the applicant on 22 February 2024. The applicant did not attend the hearing. On 5 March 2024 the applicant informed the Tribunal that she had not attended the hearing because she missed her train to Sydney on the hearing date. She confirmed she would be able to attend a hearing by video.
The Tribunal then scheduled a hearing by video for the applicant on 3 April 2024. On 27 March 2024 the applicant informed the Tribunal she had further technical difficulties with her computer and she requested that the scheduled hearing be conducted by telephone.
The applicant appeared again before the Tribunal by telephone on 3 April 2024. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant married her husband in a culturally recognised way in Solomon Islands. She did not officially divorce her husband. Because of his abuse and neglect her community accepted that she should not be married to him and got her out of the marriage. They were then considered divorced.
b.The applicant mostly lived at her family home in Solomon Islands. She occasionally stayed in town, in [Town 1], but just for a matter of weeks at a time.
c.She had no official work or regular job in Solomon Islands. She was a housewife and had a small garden for markets.
d.The applicant completed primary school and [years] of high school. She then left school and married because she became pregnant. This was in [Year] when she was [Age].
e.Her one brother works as [an occupation]. He stayed with their aunt and went to high school and got his papers. He attended college and is now at the [university].
f.The applicant’s father does pastoral ministry work in the church. The applicant’s mother does not work.
g.None of the applicant’s sisters have jobs. They all they grew up and got married. Her parents could not afford to pay their school fees after grade six. Her brother was lucky because their aunt supported his education. In Solomon Islands culture boys are preferred for education. Girls are just supposed to get married.
h.The applicant’s [sister] cut the applicant’s [body part 3] when she wanted to leave her husband. Her [sister] wanted the applicant to stay with her husband because they were married and she had children to him. They talked then argued then her [sister] grabbed a knife and cut the applicant’s [body part 3]. It was not too deep so she got treatment at home. The hospital was too far away. She still has a scar.
i.The applicant thinks that was the only time her sister was violent to her. Her brother has not been violent to her but he gave her no support or help when her husband was mistreating her and just expected the applicant to return to her husband. The applicant’s brother considered the applicant married and outside of the family.
j.The applicant’s father has not been violent to her. Her parents tried to get the applicant back home but they did not have enough money to support her there. They are struggling to care for her three children. They told the applicant she has to find a job so the chance of seasonal work in Australia came up and the applicant took it.
k.The applicant’s husband was first violent to her in about 2014. She feels like crying when she thinks about this. It was when he started a new relationship. He would get angry at the applicant and bash her.
l.After they separated the applicant did not contact her husband again. However whenever he is in the village he seeks her out and wants her. He goes to her home. He feels like he owns the applicant because he paid the bride price for her.
m.Her husband’s new wife is from a different province, in town in [Town 1].
n.The applicant does not feel any other concerns about her general safety in her village. She is only scared of her ex-husband.
o.When she was at primary school the applicant wanted to become a teacher. But there was no one to support her education and she had to leave school when she became pregnant.
p.She is fearful to return to the Solomon Islands because of her ex-husband. She thinks about how he will react when he sees her there. In Australia she feels free. Her hardship in Solomon Islands will also impact her parents and they will have a problem with her.
q.Her children are aware of how her ex-husband treated her. They tell her not to return as their Dad will come and hit her again. During Christmas he was there and asked them to visit him but they did not go. They told the applicant that he did not raise them so they did not go.
Written Submission

On 15 April 2024 the applicant wrote to the Tribunal stating that her first daughter was born in [Year]. She attached her daughter’s Birth Certificate recording her birth in [Month, Year] and ‘[Mr B]’ as the father. The Certificate states that the child’s birth was registered on [Date].
Country Information
DFAT’s most recent ‘Travel Advice’ for Solomon Islands states that there has been an increase in violent crime in Solomon Islands and that “[w]omen alone in public places are at the most risk.”
DFAT’s “Gender Equality Plan for Solomon Islands 2020–2022”, published in December 2020 contains the following:
Solomon Islands ranks 153 out of 189 countries on the 2019 United Nation’s Human Development Index. Encouragingly, Solomon Island’s Human Development Index value increased 17.2 per cent between 2000–2018. However, this low ranking signifies an environment in which women and men have limited access to resources, experience poor health and education outcomes and face financial hardship. In some parts of the country almost one third of people live below the national poverty line.
…
Much work has been done over the past decade to respond to the high rates of violence against women in Solomon Islands that were recorded in the 2009 Solomon Islands Family Health and Safety Study, which provided a comprehensive account of women’s experience of family violence. The study reported that violence against women was normalised and severe, with more than one-third of women (37 per cent) being sexually abused before the age of 15, most often by a male acquaintance. Approximately two thirds of women aged between 15 and 49 reported having experienced physical or sexual violence from an intimate partner.
Since the Family Health and Safety Study was published, Solomon Islands has passed the Family Protection Act 2014, services for survivors have expanded and improved in quality (including in the provinces) and a range of prevention programs are working to change attitudes of individuals, families and communities about violence against women.
…
Men outnumber women in participation in the formal labour force (80.3 percent and 62.4 per cent respectively) and women in Solomon Islands earn almost half that of men (USD1,569 versus USD2,467 respectively). Whilst fewer women spent time on paid work than men, those who did averaged more daily hours of paid work than men. Solomon Islands ranks 125 out of 152 countries in the World Bank’s 2020 Women, Business and the Law Report. This places Solomon Islands in the lowest performing quarter of economies for equality of opportunity and participation in the formal economy. It is the lowest ranking of all measured Pacific Island countries.
…
While there have been recent improvements, such as the appointment of the first female Chief Magistrate in 2017 and the appointment of the first female Solomon Islander judge in the High Court in 2019, women continue to be largely absent from state institutions. Since Solomon Islands gained independence in 1978, only six women have been elected into the National Parliament. Pointing to recent positive change, four of these are sitting in the current Parliament (eight per cent of seats). Women have had slightly more success at local government level – five out of 39 Provincial Assembly members are women (12.8 per cent of seats), although there are currently no women on the 19-seat Honiara City Council. There are also few women in senior positions in Government.
…
The World Bank has identified three primary constraints to women’s employment: gender differences in time use (primarily resulting from differences in care responsibilities), gender differences in access to productive inputs (particularly land and credit), and gender differences stemming from market and institutional failures. Specifically in Solomon Islands, the Asian Development Bank has assessed that women are constrained by: domestic responsibilities; poor numeracy and literacy skills; discrimination in the workplace; health; geographic isolation; lack of access to government business services and information; lack of decision-making power; and limited access to financial services.
Solomon Islands is a patriarchal society and gender inequality means that women are affected more by adversities than men. This is evident in all aspects of life. Women are more than twice as likely as men to have no schooling. In rural areas, only 14 per cent of women have functional literacy, compared with 21 per cent of men. For women, access to services is further hindered by heavy workloads at home, limited funds and social norms that place varying degrees of restrictions on women’s movements outside the community.
The patriarchal nature of Solomon Islands culture is supported by social norms and customary values that establish a hierarchy in which women often play a subservient role. Entrenched male dominance of state, faith-based and traditional institutions results in a situation where men often make decisions on behalf of women. Even in matrilineal parts of Solomon Islands where women hold the rights to land, women can be excluded from decisions regarding land and resource management. Women therefore have limited agency and constrained opportunities to change the power dynamics.
Churches are a central part of social and family life in Solomon Islands, with 98.5 per cent of Solomon Islanders identifying as Christian. Each of the five major denominations (Anglican Church of Melanesia, Catholic Church, United Church, South Seas Evangelical Church and Seventh Day Adventist Church) have strong networks of women’s groups. In some cases, women have increased their influence in church structures. For example, the United Church and the Christian Fellowship Church have quotas for women in decision-making positions in the church hierarchy (30 per cent and 50 per cent respectively). However attempts by the Mother’s Union (the largest church women’s group, attached to the Anglican Church of Melanesia) to increase the number of women in decision-making positions are being met with resistance, particularly regarding high-ranking positions.
Whilst church doctrine can more generally prevent increased participation by women, some churches are taking steps to actively incorporate gender equality in church teachings. An example is the appointment of an ordained woman minister as a lecturer at the United Church in Solomon Island’s Theological School to teach gender equality theology.
At the community level, some taboos about the place of women in society have faded and women are participating in traditionally male domains such as leadership and industry. For instance, taboos about the menstrual cycle are now much less prevalent. However, by-laws developed by chiefs and community leaders may perpetuate and reinforce negative gender roles (for example, community by-laws might place restrictions on women’s clothing). Such reinforcement of negative gender roles is arguably unconstitutional and, perhaps more importantly, it represents a form of control over women that places unrealistic and inappropriate expectations on their behaviour. Ultimately this can be harmful – male perpetrators of violence reported that one of the biggest triggers for their behaviour is women ‘not living up to’ gendered norms.
…
Solomon Islands remained COVID-free until early October 2020 and as at 18 November 2020 has only 16 confirmed cases and no community transmission. Nonetheless, the pandemic has had significant impact on life in Solomon Islands. Reflecting a broader pattern during crises, the pandemic has exacerbated existing gender inequalities. Women and girls have faced even higher rates of violence, sexual abuse and control from their husbands, partners and families. Women have been expected to undertake even more unpaid domestic work, have been less able to access essential health services and have felt the economic effects of the pandemic more severely.
…
Customary marriage is recognised by law and the legal age of marriage for both girls and boys under the Islander Marriage Act is 15 years with parental consent (18 years without parental consent). These legal frameworks can perpetuate harmful traditional practices, including marriage of very young girls and allowing some people to use bride price as an excuse to perpetuate violence against women. In Solomon Islands, 21 per cent of girls are married before their eighteenth birthday and six per cent, illegally, before the age of 15. The Islanders Divorce Act contains fault-based divorce provisions. These can economically disadvantage women who lack control in family decision making. Fault-based divorce often requires public disclosure of abuse or adultery and makes women vulnerable to shame and stigma, undermining their ability to leave a marriage.
A 2014 NGO Shadow Report on the ‘Status of Women in Solomon Islands’ states:
The Islanders Divorce Act stipulates that either spouse can initiate divorce proceedings. If the other partner does not consent, the law provides that the other partner can be summoned to appear in court to participate in divorce proceedings. The Divorce system is not accessible to many women. There are two ways to obtain a divorce in Solomon Islands, either by going to the High Court in Honiara and paying a small fee to register the divorce or by hiring a private lawyer and appearing in Auki, Gizo or Honiara. Both options are prohibitively expensive for most women because of the cost of travel to Honiara, Gizo or Auki as well as the cost of hiring a private lawyer. In addition, there are strong customary and religious beliefs that restrict the access to separation and divorce by women and young women. Inaccessibility to divorce renders women more vulnerable to violence because it is extremely difficult to leave a marriage even when domestic violence occurs. In fact, the attitude of many people in Solomon Islands is that a woman has a responsibility to her husband, children and even the community to remain in the marriage and “make it work”. Often, women and young women are advised that if they behave better and pray harder and things will improve. Rural women are particularly vulnerable because most are not actively involved in the cash economy and do not have access to funds for divorce or to fight for their land and inheritance rights in court. This particularity increases rural women’s vulnerability to violence. When women and young women do manage to access divorce proceedings in court, they face discrimination in the division of matrimonial property. The law is silent on the equitable division of property, leaving women vulnerable to the decision-making of individual magistrates. Where matrimonial cases come before the Courts, archaic British laws and common law are used to determine distribution of property. In practice, women are almost never awarded 50% of the matrimonial property and assets by the court. This is compounded by the fact that many women do not have access to accurate and complete information about the property and assets that they own jointly with their partner. We have been unable to find documentation of a single case in which a woman obtained 50% of matrimonial property and assets. Recently, one woman from Western Province was awarded only a small percentage of the matrimonial property and nothing of the family business.
The 2022 US DOS Country report on Solomon Islands states that gender-based violence is widely unreported and that sexual harassment is a widespread problem and is not illegal. The key reasons for failing to report abuse include pressure from male relatives, fear of reprisals, feelings of shame and cultural taboos of discussing such issues. Very few domestic violence cases are prosecuted in Solomon Islands. Of the cases that are reported to the police, in most instances victims dropped charges before a court appearance or settled cases out of court. Prosecutions are rare due to low judicial and police capacity and cultural bias against women. When domestic violence reports are filed with the police, it can take up to two years for the charges to be heard in court. The USDOS report adds more generally about women in the Solomon Islands that “[c]ustomary bride-price payments remained common and contributed to the perception of male ownership of women”. [1]
[1] USDOS, 2023, 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March.
The March 2022 UN Women “Gender Equality Brief for Solomon Islands” states:
Under Customary law, decisions regarding land matters are made through a consultative group comprised of male chiefs and elders. In some instances, customary law also dictates that women must ‘stand behind’ men when it comes to pubic discussions of land matters. There are provinces within Solomon Islands where women are not able to use or hold land independently from their husbands. … Land ownership in rural areas determines access to credit and agricultural support services as well as the social power to negotiate access to other resources.
…
Incidents of domestic violence reportedly sometimes arise as a result of the practice of bride price in Solomon Islands, although the prevalence of this is not known. Research from 2018 states that bride price contributes to and legitimises a culture in which men are perceived as superior and women have a duty to obey their husbands. Bride price practices are found throughout Solomon Islands, for example in the patrilineal community in Malaita.
…
Currently, there is no legal mandate for free or compulsory early childhood education. … There are multiple barriers to girls’ and women’s education in Solomon Islands, such as a lack of basic sanitary facilities in schools, a lack of dormitories for girls in rural areas, and the long distances that some girls must walk in order to attend school and the subsequent increased risk of violence they face during this journey. There are a number of indirect costs associated with sending a child to school, including transport, books, and stationary, and parents with limited means may give priority to boys’ education over the education of girls. High rates of adolescent pregnancies are believed to cause a number of girls to drop-out of school, although exact data on this is not publicly available. The draft 2014 Education Act states that no one may be refused admission or treated less favourably in schools and tertiary education institutes on the basis of their gender or pregnancy status.
…
Solomon Islands is highly vulnerable to disasters and to climate change. The maximum height above sea level in Solomon Islands is 2,335m. An estimated 65% of the population live within 1km of the coastline, while 17% of the population live within 30km of one of the country’s eight volcanoes. … In the 2021 World Risk Index on disaster risk, Solomon Islands has the second highest disaster risk in the world, exceeded only by Vanuatu. Solomon Islands was categorised as having very high exposure, susceptibility, and lack of adaptive capacities, as well as having high vulnerability and lack of coping capacities. Solomon Islands has a high likelihood of experiencing earthquakes, volcanoes, landslides, cyclones, coastal flooding, and tsunamis. In 2020, the total average annual losses due to disasters were calculated to be equivalent to 8.7% of GDP. In the future, Solomon Islands is predicted to experience less frequent but more intense cyclones, as well as continued sea-level rise, increased rainfall, rising temperatures, and a continued threat of ocean acidification and coral bleaching. Between 2000 and 2019, Solomon Islands was the 71st most impacted country by extreme weather events in terms of direct losses and fatalities. … Rates of sexual and gender-based violence are known to increase following natural disasters. During Gizo Tsunami in 2007 and Solomon Islands floods in 2014, women and children faced heightened risks due to poor facilities in the evacuation centres. To address this, humanitarian responders and the government improved the toilets and bathrooms in evacuation centres by making them lockable, well-lit, and separated by gender. [emphasis added]
A recent Plan Australia Field report ‘Life in the Solomon Islands’, states:
It’s difficult to reconcile the beauty you see and the friendly faces you meet with the statistics you hear about the Solomon Islands. More than half of women and girls here have experienced gender based violence. A third of girls are abused by the time they reach 15. Domestic violence is rife and a large portion of children are engaged in child labour.
…
We start at the bus stop. There isn’t much to indicate that’s what it is with no signs or anything but it’s where vans pick people up to take them into town. The girls tell us that at night boys gather here and yell at or touch the girls. The boys drink home brew alcohol that’s incredibly strong and it’s not unusual for girls to end up pregnant.
Elima and Eli — both named Elizabeth and both 20 years old — are in their final year of school and keen to keep studying. Eli wants to become a pharmacist and Elima a marine biologist, but there is no marine biology course at the university here, the only one in the country. For both of the girls it’s likely they’ll need to move abroad to pursue their dreams, if they can afford to do so or get a scholarship. Many of the girls in the community have dropped out of school after falling pregnant or getting married or both.
As the girls walk down the gravel road, vans barrel past sometimes with boys hanging their heads out the window and yelling insults. The girls indicate to a section of the road where Neslyn and her 19-year-old sister Monica’s aunt was raped. The girls walk or catch the bus past this spot every day.
When the girls double back they stand on the ends of the road where water runs through the bridge beneath. Around them boys play in the yard and large black pigs kick up a fuss with a screech. Plastic bags and bottles flow down the river. Here a young woman’s body was found after her boyfriend pushed her down the mountain.
For the girls, this area, the area they go through every day to get into town, is scattered with reminders of harassment and violence. But it’s the only way they can pass through the area from their communities.
In a small market haus (a small wooden shelter with low benches where Wendy sells food and phone top ups) outside the house we talk to Neslyn and Monica about what life is like for young women in the area. For girls here, they learn about sex and contraception at school and know they can go to the clinic nearby to get the pill and condoms for free. Yet many girls still fall pregnant. Here, if a girl falls pregnant or gets married she is expelled from school. …One of the boys in the group thinks this is okay, that boys should go to school but girls don’t have to. He thinks girls just get into trouble.
…
We speak to another Margaret, who is 58 years old and mother to six children, though one of her boys has died. She’s never married and when she first fell pregnant she was terrified of what her brothers would do to her. So she paid a “fine” so they would keep quiet and not hurt her.
…
Rodney’s t-shirt reads “Family Violence Team”. As a police officer, Rodney’s confronted with cases of domestic violence frequently. He tells us that often the women will take their husbands to jail after they’ve been beaten, but come back some time later asking for them to be released because they and their kids are dependant on the men to provide for the family.
…
We speak to a group of girls who aren’t in school but want to study further at the training centres. In these communities, people are self-sufficient and can live off the land, but they don’t necessarily have money. So when it comes to fees for school (or hospitals) their options are limited.
…
[2] Life in the Solomon Islands - Plan International Australia, 60% of women and girls experience gender based violence in the Solomon Islands and over 70% think it’s acceptable.[2]

An article in a local newspaper, the Solomon Star, confirms that schooling is not free in Solomon Islands:
Rural based parents can have the option of offering something ‘in kind’ if they don’t have enough cash to complete their children’s tuition for this year. This was highlighted by the Minister of Education and Human Resources Development (MEHRD) Lanelle Tanangada in an exclusive interview with the paper, Wednesday night. She said, parents living in the rural areas will be given a flexible option to pay for their children’s education.
Minister Tanangada highlighted this after many rural parents have been faced with financial difficulties to earn an income as result of COVID-19. Ministry of Education this week has a released a new subsidized school fee for this year for primary, junior and senior secondary schools.
Since the Covid-19 outbreak early this year, a number of lockdowns and curfews were imposed. As a result a number of travel restrictions for ship, aircrafts and people have been imposed. As a result many rural parents were unable to access the markets to their fish, timbers, copra, cocoa, vegetables, fruits and many more.
Even now, some parents are unlikely to send their children to school until next year due to financial constraints. Because of this challenge Minister Tanangada said, the option of paying school fees in cash or in kind offers an opportunity for parents to meet school fee obligation.
“It simply means if any rural parents cannot afford certain amount to complete their children’s school fee on time, they can either apply the traditional barter system. This is the definition for the ‘kind’ offer. “An example is, if a parent cannot able complete a certain amount of the fee of $200, the parent can at least offer some timbers worth that amount that can add value to complete a staff house or any contribution that can reach the fixed amount. “This can occur if a parent did not have any money to complete the fee. So it’s like we are applying our old barter system.”[3]
[3] School Fee Options – Solomon Star News, OF CLAIMS AND EVIDENCE
The applicant submitted her Solomon Islands passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied she is a citizen of Solomon Islands. The Tribunal assesses the applicant’s claims against Solomon Islands as her country of nationality and receiving country.
The applicant claims to fear harm from her ex-husband and other family members in Solomon Islands.
Credibility
The claims set out in the applicant’s Protection visa application refer to abuse and violence from family members without any specific detail. She did not respond to the Department’s request to provide further information about her Protection claims.
At her Tribunal hearing the applicant provided substantially more information about her claims. She described a period of abuse by her then husband from 2014 to 2105 when he left her, and then the threat of abuse and an instance of further severe physical abuse when he returned to the village in 2018, as well as threats on occasional visits to [Town 1]. She described a physical assault by her [sister] in 2014 to prevent her leaving her husband.
At hearing the applicant gave simple but coherent, consistent and personalised evidence about the violence and other abuses she had suffered at the hands of her ex-husband in Solomon Islands.
She did not appear to attempt to exaggerate the level or frequency of abuse she suffered. She identified the start of the abuse as coinciding with his new relationship and his ensuing antipathy towards his marriage to the applicant.
The Tribunal found the applicant’s oral evidence at hearing persuasive. Her description of her life with her husband in a rural part of Solomon Islands, and his sense of ownership over her is also supported by the available country information. The Tribunal therefore accepts that the applicant suffered a period of violent abuse from her husband in Solomon Islands between 2014 and 2015, and episodes of abuse, attempted control and threats after their separation.
The Tribunal also accepts the applicant’s evidence that her [sister] seriously assaulted her on one occasion when the applicant wanted to leave her husband.
The applicant’s evidence about becoming pregnant at [Age] was somewhat confused. This was in [Year] well before the time she started her relationship with her husband, and before the year of birth of the child she described as her first child. The Birth Certificate she later submitted did not clarify the confusion. The Certificate was issued in April 2024 and notes that the birth registration of the child born in [Year], was also in April 2014. Solomon Islands government information states that births can be registered on a basis of a Statutory Declaration from the parent. Given the timing of the registration and the low standard of evidence required the Tribunal considers the Birth Certificate may not be accurate. The applicant’s evidence about her [Year] pregnancy while at school was spontaneously and clearly given at hearing. There is no apparent advantage or reason for the applicant to present this information if it is not correct. The Tribunal accepts the applicant became pregnant in [Year] while still at school, but does not accept that the Birth Certificate accurately records the birth. In any event this aspect of the applicant’s background is not directly relevant to her primary protection claim to fear harm from her ex-husband.
Fear of Harm on return to Solomon Islands
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. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugees 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, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[4]
[4] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.171.
The Tribunal has taken into account the High Court’s guidance in MIEA v Guo (1997) 191 CLR 559, ‘past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’
The Tribunal accepts that if the applicant returns to Solomon Islands she will be exposed to some contact from her ex-husband. Although he is now based in [Town 1] the Tribunal accepts he returns to visit his family in the applicant’s [village] on [Island], from time to time. Given the smallness of the village it is inevitable that he would see and be able to have contact with the applicant during these visits.
The applicant and her ex-husband were culturally married and have not had an official divorce. The Tribunal accepts the applicant’s ex-husband continues to have a perception of ‘possession’ about the applicant due to his payment of a ‘bride-price’ for her, despite his new relationship.
In 2018, following their separation, the applicant’s ex-husband hit the applicant on her head with [an implement] because she would not go with him. The Tribunal notes that since this incident in 2018 there was no further evidence of physical violence by the applicant’s ex-husband in the three years or so she remained in the Solomon Islands. When this was put to the applicant she stated that he would continue to contact her and call her to him which made her and her children feel insecure. The Tribunal considers that the applicant’s husband’s infrequent returns, approximately two times a year, may have reduced his opportunity to openly attack her again. Further, if he is accompanied by his new wife and children, as in Christmas 2018, there is less scope for him to make demands upon the applicant to be with him there.
The Tribunal notes also that the applicant’s husband’s behaviour shows a degree of unpredictability. For example, the applicant gave evidence that her husband recently went to the applicant’s parents’ home to try to take their children with him, despite the many years he has shown no interest in them. This indicates that the children and the applicant continue to be of interest to him and that he will sometimes act according to his sense of connection and rights to them.
The applicant’s husband has resorted to serious physical violence in the past when he engages with the applicant, at times when he is ‘displeased’ with her or her actions. There is no indication that he had moderated his behaviour or no longer resorts to physical violence. The available country information shows that violence by a husband to a wife is broadly considered acceptable in Solomon Islands and that husbands feel empowered to mistreat their wives because they ‘paid for them’ through the bride-price cultural practice.
The applicant’s husband’s renewed interest in their children heightens the possibility of an angry confrontation between the applicant and her ex-husband when he visits the village, in addition to his occasional demands of the applicant to be with him.
In assessing the chance of harm to the applicant on return to Solomon Islands, the Tribunal also takes into consideration available information regarding culture and attitudes towards women and the prevalence of domestic and family violence in Solomon Islands.
In these circumstances the Tribunal considers there is a real chance, in the sense that it is a substantial chance not remote or fanciful, that the applicant will be seriously physically assaulted again by her ex-husband in Solomon Islands within the reasonably foreseeable future.
Reasons for the harm feared
To be persecution within the Act the essential and significant reason(s) for the harm must be attributable to the applicant’s race, religion, nationality, membership of a particular social group or political opinion.[5]
[5] Section 5J.
Australian courts have consistently found that ‘particular social group’ should be interpreted broadly[6] and the courts on the whole have accepted that women, or a subgroup of women, can comprise a social group.[7]
[6] Morato (1992) 39 FCR 401 (Lockhart J); Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309; Chen Shi Hai v MIMA (2000) 201 CLR 293.
[7] MIMA v Khawar (2002) 210 CLR 1.
The Tribunal is satisfied that ‘women in Solomon Islands’ comprise a particular social group as defined in the Act[8] in that they share a characteristic, their gender, which is not a fear of persecution.
[8] Section 5L.
In Applicant A v MIEA (1997) 190 CLR 225, Gummow J said that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. As further stated by the High Court in Chen Shi Hai v MIMA decision-makers must evaluate the postulated connection between the asserted fear of persecution and the ground, keeping in mind the policy of the Refugees Convention, and the fact that human conduct is rarely, if ever, unidimensional.[9]
[9] Chen Shi Hai v MIMA (2000) 201 CLR 293, (Gleeson CJ, Gaudron, Gummow and Hayne JJ),
In relation to what is now understood as common motivation for family and domestic violence, the ‘Our Watch’ submission to the 2021 Commonwealth government inquiry stated:
‘[they had] surveyed all of the nationally and internationally available literature on the drivers of violence against women. … What we found is that the key drivers of violence are gendered. They are about attitudes to gender. They are about structural gender relations and structural relations of power between men and women. These play out in many different ways.’[10]
[10] Dr E Partridge, Our Watch, Submission to the Commonwealth government ‘Inquiry into family, domestic and sexual violence’, March 2021.
The UN Declaration on the Elimination of Violence against Women also identifies intimate partner violence as the product of historically unequal power relations between men and women and a primary manifestation of discrimination against women.[11]
[11] Declaration on the Elimination of Violence against Women, GA Res 48/104, UN Doc
On the basis of the applicant’s personal circumstances, her ex-husband’s behaviour, available country information about an entrenched male dominant culture in Solomon Islands and the inferior position of women in a marriage, and the available expert literature regarding the nature of family and domestic violence, the Tribunal is satisfied that an essential and significant reason for the serious harm the applicant is at risk of from her ex-husband is her membership of the particular social group of women in Solomon Islands.
The Tribunal is also satisfied that the harm the applicant is at risk of involves systematic and discriminatory conduct in that it would be done to her selectively and intentionally.
Available Effective Protection
A person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2) of the Act. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
The available country information indicates that domestic violence is widely considered acceptable in Solomon Islands and that for a number of reasons, including police inaction, women are reluctant to seek help from the police. The high levels of domestic violence occurring in Solomon Islands strongly suggest that there is little available effective protection by the authorities there.
In view of the applicant’s personal experiences and the available country information regarding both the uncertainty of state responses and the high level of family violence occurring in Solomon Islands, the Tribunal is not satisfied that there is effective protection available to the applicant in Solomon Islands.
Area of risk
Under s 5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the relevant receiving country.
The Tribunal is satisfied that there is a real chance of harm to the applicant in her home area, [Village], in Solomon Islands.
According to the available country information 85% of land in the Solomon Islands is customary land. It is held and accessed in strict accordance with traditional laws and customs.[12] Further, the impacts of climate change have reportedly forced the government to devise a relocation plan for numerous communities at risk from rising sea levels and severe weather events.[13] In these circumstances the Tribunal is not satisfied that safe access to, and residence in, a rural part of Solomon Islands is lawfully possible for the applicant.
[12] See e.g. UNDP, 2021, ‘Enjoying Land Rights in the Solomon Islands’, 3 December
[13] See e.g. Solomon Islands Government, 2022, ‘Planned Relocation Guidelines’.
This means that the applicant would need to try to live in [Town 1] to avoid a threat from her ex-husband in her village. However the applicant’s ex-husband lives and works in [Town 1] and has contacted her there in the past. Further, despite being [an administrative centre] [Town 1] has a small population and small geographical area. The Tribunal considers there is a real chance of the applicant’s husband locating and harming her if she tried to live in [Town 1].
In these circumstances the Tribunal is satisfied that the real chance of persecution relates to all areas of Solomon Islands.
On the basis of the above reasoning the Tribunal is satisfied the applicant has a well-founded fear of persecution in Solomon Islands as defined by s 5J of the Act.
Section 36(3)
Subsection 36(3) of the Act has the effect that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) exclusion will not apply. The conditions prescribed in s 36(4), (5) or (5A) will be met where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.
There is no indication before the Tribunal that the applicant has a right to enter and reside in any third country. The Tribunal therefore finds that the applicant has no such rights and is not excluded from Australia’s protection obligations by s 36(3) of the Act.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Melissa McAdam
Member

cATTACHMENT - 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.
…

A/RES/48/104 (23 February 1994) art 4(c) (‘DEVAW’).

[2024] AATA 2738

9 May 2024

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