2316426 (Refugee)

2316426 (Refugee) [2024] AATA 1189 (9 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2316426
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:David James
DATE:9 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 January 2024 at 1:29pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – fear of harm from in-laws after affair with wife’s cousin – assaulted – delay in applying for protection – application made one day before working visa expired – no details, documents, supporting evidence or current information provided – no appearance at hearing – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 56, 65, 411(1)(c), 426A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
SZLVZ v MIAC [2008] FCA 1816
SZRQA v MIBP [2013] FCA 962
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 11 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Solomon Islands, applied for the visa on 15 August 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to the Solomon Islands, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 12 October 2023. In response to a request from the Tribunal the applicant provided a copy of the delegate’s decision to the Tribunal on 3 November 2023.
As noted above, the applicant provided a copy of the delegate’s decision. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to the Solomon Islands they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the Solomon Islands, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents that have been considered by the Tribunal:
·The applicant’s protection visa application submitted on 15 August 2023 and the annexed copies of the applicant’s bio data page of his Solomon Islands passport, Solomon Islands Police clearance and the applicant’s Solomon Islands birth certificate;
·The Department’s s 56 of the Act, ‘Request for more information for a protection visa application’ of 29 August 2023, in which the request for detail provided in part, that:
In your application, you claim that:
You fear returning to Solomon Islands because you cheated on your wife with your wife’s cousin, [Ms A]. You were bashed, hit, kicked, and punched. You did not seek help within the country, as you were too scared. You did not move to another location for safety within Solomon Islands as you did not have the right to relocate to any part of Solomon Islands. If you return to Solomon Islands your in-laws will kill you unless you pay the compensation of $10,000 SBD and 5 traditional shell money. The authorities will not protect you as your issue is a family issue and has to be settled at the family level.
Furthermore, a number of significant details are not included in these claims, in particular when and where the events took place and who was involved in them, and you also did not provide any documents or other evidence in support of your claims. The lack of supporting information and evidence raises concerns about the genuineness of your claims. Therefore, to assist me in deciding whether these claims are genuine, I invite you to provide further evidence and information in support of your claims. You are invited to provide evidence and information in response to the below-mentioned questions and statements.
·Provide details of when your relationship with your wife’s cousin began, including dates.
·Provide evidence of your marriage, including a marriage certificate, and other evidence of your marriage, such as evidence of shared living arrangements.
·Provide details of the type of harm you were subjected to in the Solomon Islands, including how you were harmed, when you were harmed, and who you were harmed by.
·Provide any evidence of being harmed, including medical certificates, evidence of threats, and interactions with the police.
·You claim in your application that you were asked to pay compensation for cheating on your wife. Please provide any evidence or further information regarding your in-laws request for compensation, including when they asked for compensation, and how they asked you.
·Provide details, including any evidence, of why you cannot relocate.
If you are unable to provide more information about your claims or copies of documents, please provide a detailed explanation of why you cannot provide them. If you are unable to provide documents, please also provide details of the efforts you made to obtain them…
Please note that a decision on your application may be made on the information in your application and on any response to this letter, and you may not be given another opportunity to provide more information about your claim.
·The applicant’s application for review lodged on 12 October 2023;
·The Department’s decision record of 11 October 2023, provided to the Tribunal by the applicant on 3 November 2023;
·The administrative and movement records of the Department relating to the applicant; and
·The applicant’s completed ‘Response to hearing invitation’ form, emailed to the Tribunal on 5 January 2024.
Claims for protection
The applicant in his visa application reported that he had left the Solomon Islands to come to Australia to work as a seasonal worker. After arriving in Australia on a seasonal workers visa on 16 November 2023 which was to expire on 16 August 2023 the applicant made an application for the protection visa on 15 August 2023 in which he claims (as summarised) that:
·He cannot return to Solomon Islands because he cheated on his wife with his wife’s cousin, [Ms A];
·He was bashed, hit and kicked and punched;
·He did not seek help within his country as he was too scared to do anything, and the police will not help him because his issue is a family issue and has to be settled at the family level;
·He cannot relocate within the Solomon Islands as land is owned by tribal groups and he does not have a right to relocate to other people’s land;
·If he returns to the Solomon Islands his in-laws will kill him because he has not paid the compensation they demanded, and he does not have the $10,000 SBD and 5 traditional shell money that they have demanded; and
·He will be harmed as he had earlier been harmed if he returns to the Solomon Islands.
Department interview
The applicant was not offered an interview by the Department.
Department’s s 56 of the Act, ‘Request for more information for a protection visa application’
On 29 August 2023, the Department sent a s 56 of the Act, ‘Request for more information for a protection visa application’ to the applicant, refer paragraph 15 above as to the details of this correspondence.
As of the date of the delegate’s decision and to date, the applicant has not responded to the Department by providing any evidence and/or information or documentation in response to the Department’s request.
Delegates decision
The delegate’s decision of 11 October 2023 to refuse the protection visa, was made on the information before the delegate. The delegate found that given the applicant had not provided sufficient detail in his application and that after having been invited to provide further information and given the applicant failed to provide any further information that due to the lack of detail they were not satisfied that the applicant’s claims were genuine. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to the Solomon Islands, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 20 November 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 9 January 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 2 January 2024 the Tribunal sent a SMS Hearing Reminder to the applicant’s mobile telephone number of [Number] (the mobile number which the applicant had provided on his application for review form). The message read:
Reminder – Your AAT hearing is on 09/01/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
On 5 January 2024 the applicant returned his ‘Response to hearing invitation’ form to the Tribunal via email. In that form the applicant indicated that he would be participating in the scheduled hearing, that there were no issues that may affect his ability or that of any other persons to take part in the scheduled hearing, and, that he would be providing supporting documentation to the Tribunal either prior to or at the scheduled hearing.
On 8 January 2024 a further SMS Reminder was forwarded by the Tribunal to the applicant’s mobile number, which read:
Reminder – Your AAT hearing is on 09/01/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
Review hearing - 9 January 2024
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The Tribunal then telephoned the applicant’s mobile number on 9 January 2024 at 9:25 am, when his number was not answered the Tribunal left a message reminding him of his hearing on his voicemail system. The Tribunal again, telephoned the applicant’s mobile number at 9:35 am and this call was also not answered. The Tribunal further attempted to contact the applicant by calling his mobile number at 9:50 am and on that occasion when the call was not answered, the Tribunal left another message on the applicant’s voicemail. Finally, the Tribunal called the applicant’s mobile number at 10:00 am, and again this call was not answered. The Tribunal then cancelled the applicant’s scheduled hearing.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with the invitation sent via email. Additionally, the Tribunal notes that two separate SMS hearing reminders were also sent to the mobile phone number of the applicant, as outlined above at paragraphs 22 and 24, and, the Tribunal made a series of phone calls to the applicant’s mobile number on the morning of the scheduled hearing as outlined above at paragraph 25. Given these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Country information
The Tribunal has considered the Asian Development Bank’s 2015 Solomon Islands Country Gender Assessment report, which provides the following as to the Solomon Islands’ land tenure:
Over 80% of land in the country – and almost all land in rural areas – is under customary ownership recognised in Solomon Islands law. Land is owned by clans but is used by individuals or families.
The leaders of clans make decisions about access and use. Solomon Islands has both matrilineal and patrilineal descendant and inheritance systems. In matrilineal clans, membership of the clan and rights to its land are inherited through the mother rather than through father (as it is in a patrilineal system), but matrilineal clans are headed by men and men make decisions about the use of clan land, including negotiations with investors.
In general, individuals and their immediate families share rights to use portions of their clan’s land holdings. The right to use a particular area of land for agriculture does not confer or imply ownership; traditional principles of land tenure accommodate a system of cultivation of annual crops in which land was fallowed and rotated to maintain soil fertility. Therefore, no single area was considered to permanently belong to an induvial or family. However, nowadays plantations of permanent crops such as coconuts, coffee, or cocoa can confer long-term use rights over the land where the trees are planted, even though ownership continues to rest with the clan group.[1]
[1] ‘Solomon Islands Country gender Assessment’, Asian Development Bank, 2015 [document created 21/10/2015, pp 54-55.
As to the Royal Solomon Islands Police Force, the United States Department of State Country Reports on Human Rights Practices in 2020 provides that:
The Royal Solomon Islands Police is responsible for internal and external security and reports to the Ministry of Police, National Security, and Correctional Services; Australia and New Zealand support the police. Civilian authorities maintained effective control over the security forces. Members of the security forces were not known to have committed abuses.[2]
[2] ‘Country Reports on Human Rights Practices for 2020 – Solomon Islands’, United States Department of State, 29 March 2021.

The Tribunal has also taken into consideration Freedom House’s Freedom in the World 2023 report on the Solomon Islands, in which it is reported that:
The judiciary has a reputation for independence, though a severe lack of resources has contributed to case backlogs. Judges are appointed by the Governor-General on the advice of an impartial Judicial and Legal Service Commission. The Court of Appeal is mainly reliant on foreign judges.
There are few major threats to physical security, though crime remains a problem in some areas. While the country has a history of internal conflict, the threat has subsided over the past two decades, thanks in large part to security aid from international partners.
The police force, which was disarmed in 2003, has been entirely rebuilt with the help of the Australian-led Regional Assistance Mission to the Solomon Islands (RAMSI), which launched that year. Mostyn Mangau became the first locally appointed police commissioner in 19 years when he took the post in 2020.
In the wake of the November 2021 riots, Chinese police were deployed in March 2022 to train Solomon Islands police officers in combat skills and emergency crowd management. The unpublished security agreement reached with China in April 2022 reportedly allows for the deployment of Chinese armed police to help control disturbances in the country and protect foreign-owned capital assets.[3]
[3] ‘Freedom in the World 2023 – Solomon Islands’, Freedom House, 2023 Part F1
The Tribunal also notes that the Penal Code of the Solomon Islands creates a variety of offences classified as unlawful acts, including assaults, grievous bodily harm, and murder, which carry terms of imprisonment upon conviction, including life imprisonment for the offence of murder. Additionally, under the Penal Code, police have the ability to issue Safety Notices (PSN) to persons who have threatened violence. Data from the Solomon Islands police from the period of 2017 to 2019 reports that 1034 such notices were issued in the Solomon Islands.[4]
[4]Women’s experiences of family violence services in Solomon Islands', Australian Aid, 26 November 2019, p. 29
The United Nations Office in their Pacific Community Situational Analysis report of 2020, provided as to the topic of access to justice within the Solomon Islands that:
Legal aid is available in criminal, family and civil matters, and is administered by the Public Solicitor’s Office. Historically, the Public Solicitor’s Office is overburdened and under resourced, with recommendations made for the government to recruit more lawyers for the Family Protection Unit within the office. Various UN recommendations have reiterated the need to expand services beyond the capital of Honiara and to reactivate the circuit courts in order to facilitate access to judicial services for victims of violence living outside the capital. The [Universal Periodic Review] UPR Working Group (2016) recommended increased budgetary allocation to the training of police officers and the judiciary to ensure that women have equal and substantive access to justice under the Family Protection Act.[5]
[5] Human Rights in the Pacific. A Situational Analysis 2020, Human Rights & Social Development (HRSD) Division, Pacific Community (SPC) and Regional Office for the Pacific, United Nations Office of the High Commissioner for Human Rights, Pacific Community, 2 August 2021, p. 219.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of the Solomon Islands and provided a copy of his Solomon Islands passport and Birth certificate. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of the Solomon Islands. The Solomon Islands is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[6] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[7] This is consistent with the established proposition that it is for the applicant to make his or her own case.[8]
[6] Section 5AAA of the Act.
[7] Ibid (with effect from 14 April 2015).
[8] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[9] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[10]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[9] Fox v Percy (2003) 214 CLR 118
[10] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[11] A similar approach is taken in the Department’s Refugee Law Guidelines[12] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[13] which both provide useful guidance for this Tribunal.
[11] SZLVZ v MIAC [2008] FCA 1816 at [25].
[12] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[13] UNHCR, re-issued February 2019 at [203]–[204].
In reaching its decision, the Tribunal has considered the Department’s file in relation to the application. The Tribunal has also noted, as outlined above, that the applicant chose not to accept the Tribunal’s invitation to attend a hearing and give evidence and present arguments.
The Tribunal has carefully considered the applicant’s claims for protection as outlined in his protection visa application form, both individually and cumulatively. In that regard, the Tribunal notes that the applicant’s claims are vague and do not provide any information as to when the relevant incidents he relies upon occurred, nor has he outlined any specific details as to these incidents.
Had the applicant attended the scheduled review hearing, the Tribunal would have had the opportunity to request such details relating to his claims and afforded him an opportunity to address the lack of specific details and provide any further information and evidence in support of his claims.
The Tribunal also notes that notwithstanding the Department having had requested further details from the applicant (as outlined above at paragraphs 18 and 19), that the applicant has not at any stage replied to that request to the Department and/or the Tribunal, and as noted above, has failed to attend his scheduled hearing in circumstances where he had received a unfavourable decision from the Department.
The applicant claims that he cannot return to the Solomon Islands because he cheated on his wife, and that as a result of that conduct he was bashed, hit, kicked and punched. However, notwithstanding the serious nature of these claims and the obvious impact upon the applicant, he has not provided any evidence, information and/or documents as to these claims. He has not provided the details of when this affair occurred, the duration of the affair, how his affair with his wife’s cousin was commenced and later uncovered, and by whom, when, and when and how he was confronted and challenged about the affair.
Additionally, the applicant has provided no evidence, details, and/or documents as to his purported marriage, any details of his wife and her family, and what his wife’s current circumstances are, and what if any relationship he has maintained with his purported wife.
As to the applicant’s claims, that he was ‘bashed, hit, and kicked and punched’, he has provided no evidence, information, and/or documents as to the details of his purported assault, who assaulted him, when and where the assault occurred and whether it was a single incident or a series of incidents.
He further claims that he did not seek help as he was too scared to do anything, and the police will not help him as his situation would be viewed as a family matter. However, he has not explained the basis of his fears in this regard, nor provided any details of any interactions with the police or the basis of his claim that the police would not assist him as they view such a matter as a family matter. Further, in this regard the Tribunal is of the view that given the serious nature of these allegations, it is simply implausible that the applicant would not have provided greater detail as to these claims if they were genuine, especially given he had been requested to do so by the Department, and after having his visa application refused by the Department.
The applicant also claims that he cannot relocate within the Solomon Islands as land is owned by tribal groups and he does not have a right to relocate. Again, the applicant has not provided any information in support of this claim and given the Tribunal does not accept the applicant’s claims as to his purported affair and his supposed assault, given the vague nature of his substantive claims, the Tribunal has not further considered the issue of relocation. However, the tribunal does note but that the country information as outlined above at paragraph 23, refers to the land in the Solomon Islands as being owned by clans who control the use of the land. However, there is no information to support the applicant’s claims that he cannot relocate as the control of land by the clams relate to the use of the land and not an individual’s ability to relocate.
In relation to the applicant’s overall claims including his claim that his in-laws will kill him as he has not paid the compensation of $10,000 BSD which they demanded. He has not provided any information and/or documents in support of any compensation order and/or demand, or who exactly made such demand, and how it was formally and/or informally conveyed and when it was conveyed to him.
Further, given the country information as outlined above at paragraphs 24 to 27, the Tribunal finds that the applicant could if needed avail himself of the protection from the Solomon Islands Police and Judiciary, so as not to be the subject of any harm.
Finally, the Tribunal notes that the applicant arrived in Australia [in] November 2022 on a Temporary (International Relations) (subclass 403) visa which was granted on 5 October 2022 and ceased on 16 August 2023. Further, that he applied for his protection on 15 August 2023, one day prior to his visa’s expiration and nine months after arriving in Australia. The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution he would not have delayed applying for a protection visa.
For the reasons outlined above, and on the information before it, the Tribunal has rejected the applicant’s claims in their entirety as being vague and unsupported of any evidence an/or documents.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, that the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Solomon Islands, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than the Solomon Islands.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1189

9 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Natural Justice

Statutory Construction