2318056 (Refugee)

[2024] AATA 1255

2318056 (Refugee) [2024] AATA 1255 (6 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2318056

COUNTRY OF REFERENCE:                   Solomon Islands

MEMBER:Louise Nicholls

DATE:6 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 06 February 2024 at 1:21pm

CATCHWORDS
REFUGEE – protection visa – Solomon Islands – fear of harm from natural disasters – not refugee criterion – late claim of fear of harm by former partner for not sending money – vague claim and no supporting evidence – community preparation for potential disasters – country information – functioning and impartial police force – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1996 (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

1. The applicant claims to be a citizen of the Solomon Islands and is [age] years old. She was born in [Location 1], [Province 1], Solomon Islands. [In] August 2021 she arrived in Australia travelling on a Solomon Islands passport as the holder of an Australian Seasonal Worker Subclass 403 visa.

2. The applicant applied for a protection visa on 17 September 2023. She provided a copy of the biodata page of her Solomon Islands passport with her application.

3. On 30 October 2023 the delegate of the Minister for Home Affairs refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.

4. This is an application for review of that decision, and it was made on 8 November 2023. The applicant provided a copy of the delegate’s decision record and an extract from Wikipedia on “Cyclone Lola”.

5. The applicant appeared before the Tribunal on 5 February 2024 to give evidence and present arguments.

6. The applicant gave evidence about her background, her migration history and her claims for protection.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

8. The applicant gave evidence at the Tribunal hearing that she is [year] years. She was born in a village in [Location 1], [Province 1] the eastern side of the Solomon Islands. Her parents live in the village and she has one brother and [number] sisters all living in the Solomon Islands. [One] sister is [an Occupation 1] in the Solomon Islands.

9. The applicant completed primary and secondary school in the Solomon Islands. She claimed she finished secondary school when she was [age] years old because she was late starting secondary school. After she finished school, she claimed she worked as a volunteer in [a workplace] in the village.

10. The applicant’s former partner lives in the Solomon Islands and they have two children who are living with the applicant’s parents. Her daughter is [age] years old, and her son is [age] years old.

11. The applicant arrived on a seasonal worker visa and worked picking and packing [fruits] for nine months.

12. She and her current partner are working in factories in [City 1] now. 

    CONSIDERATION

13. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complimentary protection.

14. The relevant law is set out in the attachment.

    Country of reference

15. The applicant claims she was born in, and is a citizen of, the Solomon Islands. She provided a copy of her passport which was issued [in] 2021. She has consistently claimed that she is of Solomon Islander nationality and was familiar with the geography and culture of the east of Solomon Islands.

16. Taking into account the available evidence, and noting there is no issue as to identity and nationality, the Tribunal is satisfied that the applicant is a citizen of the Solomon Islands and that Solomon Islands is the receiving country for the purpose of s.36(2)(aa) of the Act.

    What are the applicant’s claims?

17. The applicant’s claims are set out in the application for protection.

18. The applicant gave oral evidence concerning her claims at the Tribunal hearing held on 5 February 2024.

19. Essentially the applicant claims if she returns to the Solomon Islands she faces serious harm as a result of an ongoing threat posed by natural disasters in the Solomon Islands, particularly the threat of cyclones.

20. At the Tribunal hearing the applicant also stated that her former partner in the Solomon Islands asked her to send him money and is angry with her because she did not send him any moment. She claims that she fears he will harm her if she returns to the Solomon Islands because she has not sent him any money.

21. In her application for protection the applicant stated that she feared harm in the Solomon Islands due to the ongoing threat posed by natural disasters including earthquakes, tsunamis, cyclones, volcanic eruptions, flooding, landslides, and droughts. She stated that relocation to another part of the islands would not remove the threat of harm.

22. She stated that communities in the Solomon Islands prepared for potential disasters to mitigate their impact. This included training in disaster risk reduction and simulations, the formation of disaster committees and preparedness plans, building capacity for health workers, disease prevention and water supply.

23. If she returns to the Solomon Islands, she fears the unpredictability of natural disasters.

24. At the Tribunal hearing the applicant stated that her family home is located in the eastern side of the Solomon Islands which is subject to cyclone activity. She would like to stay in Australia to work to earn enough money to help her parents and her family. Her parents are not in good health and she was also helping with school expenses for her extended family including her children.

25. She stated her objective was to earn enough money to build a permanent house in the islands which would not be subject to damage during cyclones. She stated if she returned to the Solomon Islands she could not relocate because her parents live in the eastern side of the islands.

26. She also stated that she has a [bank] loan which she needs to repay.

27. At the end of the hearing and after the Tribunal had outlined the requirements of s.5J(1) of the Act, she told the Tribunal that she and the father of her children are separated and she and her current partner live and work in [City 1]. Her former partner asked her to send him  money but she has refused because he would not agree to look after their children. She explained her parents are looking after the children. He is angry with her because she has refused to send him money. She is afraid if she returns, he will continue to be angry and may harm her.

28. She stated she had not included this as a claim in her application because at the time of her application in September 2023 he had not made that threat.

29. The Tribunal put it to her that if her former partner threatened her, she could approach police to protect her. She stated that she would do so if she returned to the Solomon Islands.

    Does the applicant meet the refugee criterion?

30. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to the Solomon Islands now or in the foreseeable future she faces a real chance of persecution for reasons as a result of natural disasters or from her former partner because she refused to send him money.

31. As discussed with the applicant the fear of natural disasters and cyclones does not appear to be, and the Tribunal does not accept that it is, a fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

32. The applicant also claimed that her former partner is angry with her because she has refused to send him money and she fears if she returns to the Solomon Islands he may harm her.

33. This claim was raised at the end of the hearing after the Tribunal had discussed the meaning of a refugee and questioned the applicant as to how the fear of natural disasters was a fear which arose for reasons of race, religion, nationality, membership of a social group or political opinion. The claim that she feared her former partner was vague and unparticularised in nature. Further there was no evidence provided which might support her claim that she would face serious harm from her former partner if she returned. The applicant did not provide evidence as to the nature or extent of any threats or whether there was any realistic possibility of threats being carried out. Further the applicant appeared to acknowledge that she could seek the assistance of the Solomon Islands police force in the event of any threats of harm. The Tribunal accepts the applicant may have had an angry telephone conversation with her former partner but does not accept there is evidence of a credible threat of her being exposed to actual harm at his hands.

34. The applicant claimed her former partner was angry with her because she refused to send money to him. In addition to not accepting that there is evidence of a credible threat of serious harm, the Tribunal also does not accept that the applicant’s claim that she fears harm at the hands of her former partner is a fear of serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion.

35. The country information[1], which the Tribunal accepts, indicates Solomon Islands has a functioning and impartial police force which could deal with such a threat and there is no evidence or country information which might suggest that police assistance would be withheld from the applicant for any of the reasons set out in s.5 J(1) of the Act. The applicant agreed she would seek the assistance of police if necessary.

    [1] 'Combating corruption and rebuilding a nation', Regional Assistance Mission to Solomon Islands (RAMSI), 27 March 2007;2022 Country Reports on Human Rights Practices: Solomon Islands US Dept of State

36. For reasons set out above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in section 5J(1)(a) of the Act.

    Does the applicant meet the complementary protection criterion?

37. Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to the Solomon Islands.

38. In forming a conclusion on whether the applicant is a person who in respect of whom Australia has protection obligations under s.36(2)(aa) the Tribunal has taken into account its findings on material questions of fact, its view of the applicant’s future conduct and country information.

39. The applicant’s claim that her removal to the Solomon Islands would necessarily subject her to a risk of harm from natural disasters is based on the past history of such disasters but there is no evidence which indicates that such harm would fall within the definition of significant harm or be intentionally inflicted upon her.

40. The applicant stated her objective was to work in Australia to build a family home permanent in structure and not easily damaged during cyclone activity. The Tribunal accepts that this is the applicant’s objective but does not accept the claim falls within the definition of significant harm as defined in the Act.

41. As set out earlier in this decision, the Tribunal also does not accept that the applicant faces a credible threat of significant harm at the hands of her former partner in the Solomon Islands.

42. Taking the above into account, the Tribunal considers that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on her, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also satisfied that there is no real risk that she will suffer arbitrary deprivation of her life, or the death penalty. In other words, the Tribunal finds no other grounds that suggest she will be subject to significant harm, for any reason, if she returns to the Solomon Islands.

43. Thus, having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to the Solomon Islands.

    Conclusion

44. 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).

45. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

46. 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

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

    Louise Nicholls
    Senior Member

    
    

    ATTACHMENT

    CRITERIA FOR A PROTECTION VISA

48. 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.

49. 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.

50. 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).

51. 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.

52. 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

53. 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.

    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.

    …