2316605 (Refugee)

2316605 (Refugee) [2023] AATA 4850 (18 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2316605
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Lilly Mojsin
DATE:18 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 December 2023 at 3:00pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – domestic abuse – police inaction – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 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 Solomon Islands, applied for the visa on 13 August 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm, within a reasonably foreseeable future on his return to the Solomon Islands.
The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the review application.
The applicant appeared before the Tribunal on 30 November 2023 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin and English languages.
CRITERIA FOR A PROTECTION VISA
See Annexure A.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant, in her protection visa application stated that:
- She left Solomon Islands to save herself from the big group of community and the local government.
- She was forced to withdraw her support to the government. The local NGO group unnecessarily questioned and harassed her. She sought help by contacting the police but instead they tortured her.
- She tried to move to another state in the Solomon Islands but the ruling party were there as well.
- She will definitely be put behind bars by the state government if she returns to Solomon Islands.
- She would be harmed as she is considered a challenge for the government and opposition party.
- The authorities harassed her and the people of her community, so there is no question of going to seek help form them as they will not provide her protection.
In her submission dated 13 August 2023 to the Department, she stated:
I was leading a happy and peaceful life at Honiara working as an employee. I was working in a small scale business of finance and finance Management Company at [Employer 1]. The business was deal with arranging finance for those who want to send money from one place to another place. One day I received some money from one party to be delivered to other state and country which I did immediately as per the instructions of my boss who was working as per the instruction the money giver.
I never realized that the money given to me to delivered are from the fraud businessman by doing fraud in country. When the party who gave money came to realize that they have been cheated and deceived by an agent. The person who was cheated took the legal recourse. He dragged the accused in the court but shockingly my name was not included in an F.I.R (First Investigation Report). When I had not saw my name along with two accused [named], I was shocked as I had nothing to do with these financial transactions. I was merely facilitating the transaction in the safe and hassle free manner as per the instruction of my company. I became the centre of target of some people as I was chased by them wherever I went. I quited this business and decided to work in Honiara but I was traced even there and was beaten by some people as they considered me to be to at fault for the money that was transacted. I went to [other place] my native village but was spotted there also. I had no other option, I have to leave Solomon Island.
I came to Australia on a Seasonal work visa so that I can spend some time here but here I realized that government of Australia can provide me the permanent protection if I apply for the protection visa. I have no any documents and legal evidences to prove as I was in trouble. I have other papers under my possession in Honiara which I will get them translated into English and will send later to the department of immigration and border protection.
The applicant is single. Her daughter is in Solomon Island with her mother. The child’s father is in the Solomon Islands and he has moved on. Her daughter is [age] years. They broke up about 4 years ago.
She finished high school and then worked for [Employer 2]. She stopped working [for Employer 2] in 2021 before she came to Australia. She resigned from her job because she was planning to come to Australia because she wants to work in Australia and get enough money to support her child. It is not enough for her to be paid $200 per fortnight and the cost of living is expensive. She is working in Australia in a processing plant in [Town 1].
She is not Slovenian. Her application was written for her by a person to apply for a visa and he did not ask her about her claims. He put the wrong story before asking her about her reasons. This person is Indian who lives in [Town 1] called [Mr A]. Somebody told her about him. He charged her $800 to apply. He filled out the documents on line. She expected him to call her but he did not give her a call and she just realised when she received the email application it was lodged. Then after she received a request from Department she called him to answer the questions and he told her he will sort things out. He did not do it and she gave up on him. She saw a migration lawyer who asked her for a certain amount to act for her but she did not have the money.
She came to Australia on a 403 visa to work here. She does not want to go back as she is the only one supporting her daughter and the father is an abusive person.
Asked if there was anything that she fears about returning she said she has been working in the Solomons and her ex-partner still thinks he has ownership of her and he was always disturbing her at work or at home. He would come by and wanted to talk to her. Sometimes just got angry. He thought she was doing something behind her back and he is jealous and verbally abuses her. He physically abused her in 2019 and she went to the police and asked them to get a restraining order but it was useless. The police did not do their job. They did not follow up. That was the last time he physically abused her. He does not have an access order but he comes to see the child. She did not stop him seeing the child and because of their culture the child is owned by the male side. Since she has been in Australia he is allowed to come and pick her child up for the weekend.
He has been in another family situation for 2 years only. He has 2 children now. I put to her that there is an Ombudsman in the Solomon Islands, if she wishes to complain about the police inaction.
Asked what she fears about returning to the Solomon Islands, she said she still remembers what he said that he really did not want her to move on. She regrets going to [Mr A] and she spent the money for nothing. All she ever wanted was not to be illegal in Australia.
INDEPENDENT EVIDENCE
Solomon Islands is an archipelagic state situated in the south-west Pacific Ocean, approximately 2,000 kms to the northeast of Australia. Its land mass of 28,400 km extends over nearly 1000 islands comprising nine main island groups. The capital, Honiara, is located on Guadalcanal, the largest island.
The population of Solomon Islands, estimated to be about 724,462, is predominantly Melanesian (about 95 per cent) although there are also small Polynesian, Micronesian, Chinese and European communities. There are 63 distinct languages in the country, with numerous local dialects. English is the official language but Solomons’ Pijin is the lingua franca for the majority of people.
The Pacific Australia Labour Mobility (PALM) scheme commenced in 2021. Under the Programme, seasonal horticultural workers from Pacific countries are recruited by horticultural enterprises in Australia to meet their seasonal harvest needs. This enables citizens of select Pacific island countries including Solomon Islands to take up low and semi-skilled work in rural and regional Australia for up to three years.
A 2013 report by the World Bank[1] on the justice system in the Solomon Islands indicates that open conflict, including violence, is generally the result of local-level disputes, such as theft, property damage, political conflict, or accusations of sorcery. Serious offences, such as murder, rape, incest, and severe physical assault are considered to be rare. To resolve local disputes, victims can seek justice through the Kastom system, state institutions, or the church. The Kastom system is ‘the most frequently utilized and relevant justice system’, which is reliant on local ‘chiefs’ to mediate conflict.
[1] justice-delivered-locally-systems-challenges-innovations-in-solomon-islands.pdf (dfat.gov.au)
According to Freedom House’s report ‘Freedom in the World 2023’ Solomon Islands, the judiciary has a reputation for independence, though a severe lack of resources has contributed to case backlogs. Judges are appointed by the Governor-General on the advice of an impartial Judicial and Legal Service Commission. The Court of Appeal is mainly reliant on foreign judges.
There are few major threats to physical security, though crime remains a problem in some areas. While the country has a history of internal conflict, the threat has subsided over the past two decades, thanks in large part to security aid from international partners. The police force, which was disarmed in 2003, has been entirely rebuilt with the help of the Australian-led Regional Assistance Mission to the Solomon Islands (RAMSI), which launched that year. Mostyn Mangau became the first locally appointed police commissioner in 19 years when he took the post in 2020. In the wake of the November 2021 riots, Chinese police were deployed in March 2022 to train the Solomon Islands police officers in combat skills and emergency crowd management. The unpublished security agreement reached with China in April 2022 reportedly allows for the deployment of Chinese armed police to help control disturbances in the country and protect foreign-owned capital assets.
The 2021 United Nations Office of the High Commissioner for Human Rights, Pacific Community, Situational Analysis 2020 report[2] states the following regarding access to justice within the Solomon Islands: Legal aid is available in criminal, family and civil matters, and is administered by the Public Solicitor’s Office. Historically, the Public Solicitor’s Office is overburdened and under resourced, with recommendations made for the government to recruit more lawyers for the Family Protection Unit within the office. Various UN recommendations have reiterated the need to expand services beyond the capital of Honiara and to reactivate the circuit courts in order to facilitate access to judicial services for victims of violence living outside the capital. The [Universal Periodic Review] UPR Working Group (2016) recommended increased budgetary allocation to the training of police officers and the judiciary to ensure that women have equal and substantive access to justice under the Family Protection Act.
[2] Human Rights in the Pacific. A Situational Analysis 2020, Human Rights & Social Development (HRSD) Division, Pacific Community (SPC) and Regional Office for the Pacific, United Nations Office of the High Commissioner for Human Rights, Pacific Community, 2 August 2021
According to the US State Department Report Human Rights Practices, Solomon Islands 2022, the constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality. The law provides for the right to a fair and public trial, and an independent judiciary generally enforced this right.
While the law provides criminal penalties for corruption by officials, the government implemented the law inconsistently; officials sometimes engaged in corrupt practices with impunity; and corruption was widely held to be pervasive in the government, especially with respect to the forestry, mining, and fisheries sectors.
The Solomon Islands Independent Commission against Corruption is tasked with preventing official corruption and has investigative and prosecutorial powers. The Office of the Ombudsman is responsible for investigating public complaints of government maladministration.
REASONS AND FINDINGS
On the basis of her Solomon Islands passport, I accept that the applicant is a national of the Solomon Islands and a not national or citizen of any other country or has a right to enter and reside in any country other than the Solomon Islands. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that the Solomon Islands is the applicant’s “receiving country” for the purposes of s.36(2) (aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
At the hearing the applicant advised the Tribunal that the claims made in her application to the Department were created by [Mr A] and were not made with her instructions. I accept her explanation and I accept that the only claims regarding her situation are as advised by her to the Tribunal.
I find that the applicant did not leave the Solomon Islands to save herself from the big group of community and the local government, she was not forced to withdraw her support to the government, the local NGO group did not question and harass her, the police did not torture her and the authorities did not harass her and the people of her community. I also find that she did not work in a small scale business of finance and finance Management Company at [Employer 1], she did not deliver money, she was not involved in an fraudulent activity, she did not go to court and she was not targeted by people and beaten.
I accept that the father of her child is an abusive person, who still thinks he has ownership of her and he was always disturbing her at work or at home. I accept that she suffered verbal abuse and he physically abused her in 2019, that was the last time he did so. She went to the police and asked them to get a restraining order but the police did not follow up. The applicant did not lodge a complaint with the Ombudsman regarding police inaction.
I accept the applicant arrived in Australia under the PALM scheme to work in 2021 about 2 years after she separated from her former partner.
Whilst I accept she suffered verbal abuse from her former partner, I am not satisfied that verbal abuse amounts to serious harm. As for physical abuse, the applicant did not claim that she suffered any injuries or required hospitalisation or that it continued after the couple separated. I do not accept that any physical abuse the applicant suffered was significant physical harassment or significant physical ill treatment that amounted to serious harm.
I have considered the applicant’s evidence singularly and cumulatively. I am satisfied the applicant did not suffer serious harm, in the Solomon Islands, for a refugee reason ie. for reasons of her race, religion, nationality, membership of a particular social group or political opinion.
I am required to consider if the applicant will suffer serious harm, for reasons of her race, religion, nationality, membership of a particular social group or political opinion, on her return to the Solomon Islands, within a reasonably foreseeable future.
The applicant claims and I accept that she does not wish to return to the Solomon Islands as she wants to work in Australia. I accept that she only applied for a PV not to be illegal in Australia, and be able to continue working.
The applicant did not agree that she could obtain the protection of the police in the Solomon Islands, she said that she attempted to take out a restraining order and the police took no action. There is an Ombudsman in the Solomon Islands and the applicant did not complain about police inaction.
Reliable sources such as US State Department Reports, DFAT and UK Home Office do not suggest that effective protection is not available to the residents and citizens of the Solomon Islands. The independent evidence, cited above, indicates that while domestic violence is prevalent it is now punished by law and there is an Ombudsman to whom complaints can be made about the police, if the police do not act in accordance with the law. The sources confirm that the judiciary have a reputation for independence, though a severe lack of resources has contributed to case backlogs.
I accept that the applicant is the only one supporting her daughter. The father has access on weekends but does not have an access order. I accept that the father of the child is an abusive person, who still thinks he has ownership of her. She does not claim any abuse after 2019 and she left the Solomon Islands in 2021 to work in Australia. I find remote the chance that the applicant’s husband will abuse her, verbally or physically, on her return to the Solomon Islands within a reasonably foreseeable future.
I have considered the applicants’ claims and evidence singularly and cumulatively. I am not satisfied that there is a real chance the applicant will suffer persecution for reasons of her race, religion, nationality, membership of a particular social group or political opinion, if the applicant returns to the Solomon Islands, within a reasonably foreseeable future.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
I am required to assess if the applicant will suffer significant harm on her return to the Solomon Islands within a reasonably foreseeable future. The applicant has not made specific claims for complementary protection separate from those put forward in relation to the refugee criteria.
The applicant is a single mother who is separated from her former partner who now has another wife and family. She does not claim to have been harmed by him since 2019. Therefore I do not accept that there is real risk the applicant will suffer significant harm by her child’s father on her return within a reasonably foreseeable future.
I accept that the applicant does not wish to return to the Solomon Islands as she will earn less money there than in Australia. The applicant has been working in Australia and has attained skills in Australia. I find that any difficulties in obtaining employment or lower wages in Solomon Islands would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing her to suffer significant harm.
Having considered all of the applicant’s claims, individually and cumulatively, I do not accept that if the applicant returns to the Solomon Islands now or in the reasonably foreseeable future she will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to torture or to cruel or inhuman treatment or punishment, nor will she be subjected to degrading treatment or punishment.

For the reasons given above, I am not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s.36(2A) of the Act, if she is removed from Australia to the Solomon Islands.
I therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

ANNEXURE A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4850

18 December 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction