2316637 (Refugee)

[2024] AATA 628

2316637 (Refugee) [2024] AATA 628 (11 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2316637

COUNTRY OF REFERENCE:                   Solomon Islands

MEMBER:David James

DATE:11 January 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 January 2024 at 12:17pm

CATCHWORDS

REFUGEE – protection visa – Solomon Islands – particular social group – threats from money lenders – economic conditions – fear of physical assault – fear of starvation – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 426, 441, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816      

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Solomon Islands, applied for the visa on 4 September 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.

3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 17 October 2023. In response to a request forwarded to the applicant’s email address (as recorded on both his application for the visa, and his application for the review) on 17 November 2023, the applicant provided a copy of the delegate’s decision to the Tribunal on 17 November 2023.

4. 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.

5. The applicant was not represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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.

11. 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.

12. 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

13. 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

14. 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

15. 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 14 September 2023 and the annexed copies of the applicant’s bio data page of his Solomon Islands passport, and a payslip;

    ·The applicant’s application for review submitted 17 October 2023;

    ·The Department’s decision record of 16 October 2023, provided by the applicant on 17 November 2023; and

    ·The administrative and movement records of the Department relating to the applicant.

    Claims for protection

16. In his visa application, the applicant 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 [in] November 2023, which was to expire on 16 August 2023, the applicant made an application for a protection visa on 15 August 2023. In this protection visa application, the applicant claims (as summarised) that:

    ·He came to Australia to make a living and provide money to his family in the Solomon Islands to repay a debt;

    ·If he returns to the Solomon Islands he and his family will starve and if they do not pay of the debt, they will be harassed by the debtor until they do pay off the debt;

    ·He cannot relocate as other parts of the Solomon Islands are the same and there is no organisation or authority that can help as poverty is widespread.

    Department interview 

17. The applicant was not offered an interview by the Department.

    Delegate’s decision

18. The delegate’s decision of 16 October 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims that poverty is widespread and that he and his family will starve if he was to return to the Solomon Islands did not relate to any of the reasons in s 5J(1)(a) of the Act and there was no further information to suggest that he would be subject to harm if he was to return to the Solomon Islands for one or more of those reasons. 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 also found that as to the applicant’s claims that he will be harassed or possibly harmed by a debtor if he returns to the Solomon Islands, that he would be avail himself of effective state protection on his return to the Solomon Islands. Therefore, 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 that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

    Invitation to attend hearing

19. On 20 November 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 11 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.

    Review hearing - 11 January 2024

20. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Noting that the applicant did not provide any contact telephone numbers with his application for the review, the Tribunal telephoned the applicant’s mobile number that he had recorded in his application for the visa.

21. In this regard, the Tribunal on 11 January 2024 at 9:29 am and again at 10:13 am, attempted to contact the applicant by calling the mobile number he had recorded on his visa application, [number specified]. On both occasions the telephone call made by the Tribunal was not answered, and a recorded message was played stating that the number was incorrect or incomplete

22. 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 to the email address that the applicant had recorded on his visa application and his application for the review. Additionally, the Tribunal notes that 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 21. 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

23. As to the Royal Solomon Islands Police Force, the United States Department of State’s ‘Country Reports on Human Rights Practices for 2020 – Solomon Islands’ 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.[1]

    [1] ‘Country Reports on Human Rights Practices for 2020 – Solomon Islands’, United States Department of State, 29 March 2021.

24. 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.[2]

    [2] ‘Freedom in the World 2023 – Solomon Islands’, Freedom House, 2023 Part F1

25. 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.[3]

    [3] Women’s experiences of family violence services in Solomon Islands', Australian Aid, 26 November 2019, p. 29

26. 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.[4]

    [4] 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

27. 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

28. According to the protection visa application, the applicant claims to be a citizen of the Solomon Islands and provided a copy of the bio data page of his Solomon Islands passport. 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

29. 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.

30. 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.[5] 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.[6] This is consistent with the established proposition that it is for the applicant to make his or her own case.[7]

    [5] Section 5AAA of the Act.

    [6] Ibid (with effect from 14 April 2015).

    [7] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

31. 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.

32. The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[8] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[9]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.

    [8] Fox v Percy (2003) 214 CLR 118

    [9] 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.

1. 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.[10] A similar approach is taken in the Department’s Refugee Law Guidelines[11] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[12] which both provide useful guidance for this Tribunal.

   [10] SZLVZ v MIAC [2008] FCA 1816 at [25].

   [11] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

   [12] UNHCR, re-issued February 2019 at [203]–[204].

2. The Tribunal has reviewed and carefully considered both the Department’s and Tribunal’s file in relation to the applicant’s application for a protection visa and considered his claims both individually and cumulatively.

3. In that regard, the Tribunal notes that the applicant has not engaged with the Department and/or the Tribunal by providing any additional information and/or evidence in support of his claims as had been outlined in his application for the visa. Additionally, as outlined above, the applicant has chosen not to accept the Tribunal’s invitation to attend a hearing and give oral evidence and present arguments.

4. Therefore, for the reasons outlined above and below, the Tribunal has found the applicant’s claims to be vague and lacking a level of detail to satisfy the Tribunal of the facts relied upon by the applicant in support of his claims for protection.

5. The Tribunal further notes that if the applicant had 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.

   Economic claims

6. The applicant claims that he came to Australia to make a living and provide money to his family in the Solomon Islands to repay a debt, and, that if he was to return to the Solomon Islands he and his family would starve. He further claims in this regard, that he cannot relocate within the Solomon Islands and there are no organisations or authority that can help him and his family as poverty is widespread.

7. Firstly, as to these claims the applicant has provided no details as to his former economic situation and that of his family’s in the Solomon Islands. He has further provided no information as to his family, their individual circumstances, and how he and his family had been supporting themselves financially prior to his arrival in Australia. Equally, the applicant has not detailed how and to what extent he has been and intends to continue to provide money to his family in the Solomon Islands, and how he has been making these payments to his family.

8. Secondly, and more importantly, the Tribunal finds that the applicant’s claims of fear arising from his ability to make a living in Australia and his fears that he and his family will starve as poverty is widespread within the Solomon Islands, do not relate to any of the reasons outlined in s 5J(1)(a) of the Act. Additionally, the Tribunal notes that these fears of the applicant relating to the widespread poverty within the Solomon Islands, and the general economic situation within the Solomon Islands are a risk which is faced by the population at large and are not matters faced by the applicant personally. In that regard, there is no evidence before the Tribunal to suggest that economic and employment opportunities have been withheld from the applicant and that he has been targeted in this regard.

9. Therefore, for the reasons outlined above, and on the evidence before it, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm on account of the economic situation in the Solomon Islands, if he was to return to the Solomon Islands in the reasonably foreseeable future.

10. The Tribunal finds that the applicant’s fears in this regard, are not well-founded.

    Harassment as to the repayment of a debt

11. The applicant claims that he came to Australia to make a living and provide money to his family in the Solomon Islands to repay a debt. In this regard, he further claims that if he was to return to the Solomon Islands and his and/or his family’s debt is not repaid they will be harassed by the debtor until they pay off the debt.

12. The Tribunal notes as to these claims, that the applicant has not provided any details as to this purported debt. He has not identified the amount and when the debt was incurred; who is the debtor; for what purposes were the funds advanced; whether there is any supporting documentation; what payments have been made, if any; to whom they have been made; and, when such, if any, payments were made (including any made whilst he was living in the Solomon Islands). 

13. Equally, the applicant has not provided any details of his current situation in Australia as to his past and any current employment and the terms of his employment, together with his ability to send money to his family in the Solomon Islands.

14. Further, the applicant has not explained what form of harassment he fears from the debtor, whether he and his family have been so harassed to date in relation to this debt, and from whom this harassment would likely come from. He has also not provided any information as to what if any complaints and/or enquiries he and his family have made with the Royal Solomon Islands Police, if any, and why he believes they cannot assist him and his family in relation to any past and/or future purported harassment.

15. The applicant, additionally claims, that he cannot relocate within the Solomon Islands to avoid this risk of harm from the debtor, and that there is no organisation or authority that can help him and his family.

16. However, the relevant and available country information which has been outlined above at paragraphs 23 to 26 indicate that the Solomon Islands Penal Code creates a variety of offences which would most likely encompass any form of harassment that the applicant purportedly fears. Further the Royal Solomon Islands Police who are responsible for internal security are in their duties supported by Australian and New Zealand authorities. Additionally, the Tribunal notes that Freedom House (as at paragraph 24 above) reports that the Solomon Islands Judiciary has a reputation for independence.

17. The Tribunal finds on the evidence before it, and for the reasons outlined above, that if the applicant has incurred a debt, that he can obtain effective state protection against any persecution or serious harm from any party as to his and his family’s purported debt.

18. For the reasons outlined above, and on the evidence before it, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to the Solomon Islands in the reasonably foreseeable future on account of a debt owed by himself and/or his family in the Solomon Islands.

19. The Tribunal finds that the applicant’s fears in this regard, are not well-founded.

    Refugee criterion

20. 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.

21. 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

22. 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.

23. 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.

24. 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

25. 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.

26. 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

27. 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.

    …