2321351 (Refugee)
[2024] AATA 2089
•11 April 2024
2321351 (Refugee) [2024] AATA 2089 (11 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2321351
COUNTRY OF REFERENCE: Solomon Islands
MEMBER:Clyde Cosentino
DATE:11 April 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 April 2024 at 9:06am
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – substantial compliance with the application for review – non-appearance before the Tribunal – affair with a married woman – husband demanded money for compensation – insufficient information before the Tribunal – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155Any 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 7 December 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 23 October 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
A chronology of events relating to the applicant’s protection visa application is as follows.
On 23 October 2023, the applicant lodged an application for a protection visa with the Department of Home Affairs (the department).
On 7 December 2023, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa.
On 21 December 2023, the Tribunal received an application for review which was not in the approved form but was lodged within the required time. After careful consideration, the Tribunal decided that the applicant had provided his name, date of birth, address and email address as well as his department file number and receipt number for his protection visa application enabling the Tribunal to identify the applicant as a protection visa applicant. The applicant’s email and mobile number in his protection visa application was the same email and mobile number listed in his application to the Tribunal. The Tribunal was satisfied therefore that the applicant had substantially complied with the application for review and that the Tribunal had jurisdiction in this matter.
CLAIMS AND EVIDENCE
According to his protection visa application, the applicant, male, was born in [Village 1], Malaita Province, Solomon Islands. He was [age] years old and unmarried at the time of lodgement of his protection visa application. He claims he has lived at [Town 1], Malaita, Solomon Islands from [birth] until November 2020. He arrived in Australia [in] November 2020 on a visitor visa. He has never been employed. His family and friends supported him financially while unemployed. He provided no details about his education.
The applicant made the following claims in his protection visa application.
He claims he left the Solomon Islands because he had an affair with a married woman in his home village. This woman’s husband found out and sought compensation from the applicant. He claims that he paid the compensation amount that was demanded of him to the woman’s husband. He claims that a few weeks after payment, the husband came back to see him and demanded more money for compensation. The applicant refused to give him any more money. He claims that the husband was angry and subsequently the applicant was assaulted by eight men as well as the husband. He claims that the husband put a knife to his throat and threatened that he would come back in one week if the applicant did not pay the compensation. He claims that the husband told him that he would kill the applicant and hurt his family if he did not pay the amount. He claims that he was afraid for his life, so he escaped. He claims that he was seriously harmed when assaulted by the husband the men who with him.
He claims that he sought assistance but nobody “reached out” to him. He claims that he tried to move to another part of the country, but nobody wanted to provide him accommodation as they were in fear of this group of men who might locate him and do harm to them as well.
He claims that if he returned, he will be killed. He claims that the authorities of the Solomon Islands will not protect him. He claims that he cannot relocate elsewhere as the Solomon Islands is a small place and the people who have threatened him will locate him and kill him. He claims that he is too afraid to return.
As already noted, the delegate refused the application and the applicant applied for a review of that decision.
On 13 March 2024, the Tribunal Registry sent to the applicant (at his last notified email address) the following email:
Dear [applicant],
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
Please read the attached correspondence carefully, noting that we require a response from you before a certain date.
If you have any questions or are experiencing problems opening the document/s attached to this email message, please contact us immediately at [email protected], or call 1800 228 333.
Attached to that same email was an “Invitation to Attend a Hearing” letter advising the applicant that the Tribunal had considered all the material relating to his application, but 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 on 10 April 2024 at 9:30 am (QLD time) at the Administrative Appeals Tribunal Level 6, 295 Ann Street, BRISBANE QLD 4000. The Invitation letter was sent to the applicant by email to his last notified email address.
On 3 April 2024, an SMS hearing reminder was sent to the applicant’s last provided mobile number. The message sent was as follows:
Reminder - Your AAT hearing is on 10/04/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
On 9 April 2024, a second SMS hearing reminder was sent to the applicant’s last provided mobile number. The message sent was as follows:
Reminder - Your AAT hearing is on 10/04/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
On 10 April 2024, the applicant failed to appear at the time, date and place of the scheduled hearing.
Under s 426A(1A)(a), the Tribunal proceeds to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
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.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 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. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal has significant problems with the applicant’s claims. The evidence presented by him to the department is not sufficiently detailed to enable the Tribunal to be satisfied that he faces a real chance of persecution in the Solomon Islands or 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 he will suffer significant harm.
There is insufficient evidence before the Tribunal as to the name of both the woman he had the affair with and her husband. There is insufficient evidence as to whether the woman he had the affair with as well as her husband were known to the applicant and his family prior to the commencement of the affair. There is insufficient evidence as to when the affair occurred and for how long the affair continued for, and whether he has remained in contact with this woman. There is insufficient evidence as to whether the woman he had an affair with lived near the applicant with her husband or whether they lived further away from the village. There is insufficient evidence as to whether the applicant was living with his family at the time of the affair or whether he was living alone, and if so, where he was living exactly.
There is insufficient evidence as to how the husband came to find out about the affair, when the husband found out about the affair and who else, beside the husband, knew about the affair.
There is insufficient evidence of how much was demanded by the husband for first payment of compensation and whether the applicant paid for this compensation in full or in part. There is insufficient evidence as to whether the applicant was assisted in the compensation process by others in his family or village or whether he paid this compensation on his own. There is insufficient evidence as to how he paid this compensation and whether the payment was by way of formal or informal agreement between the applicant and the husband.
There is insufficient evidence as to the exact time the husband came back demanding more compensation and how much more the husband was demanding.
There is insufficient evidence when the applicant was assaulted, whether the applicant recognised any of the assailants who assaulted him and whether they were from his village or outside of his village. There is insufficient detail of the assault itself.
There is insufficient evidence of who in his family were threatened by the husband and whether his family members have remained in the village after the threats and, if they have remained, whether they have been harmed in any way.
There is insufficient detail of what the applicant means when he stated that he sought assistance but nobody “reached out” to him.
There is insufficient evidence as to which parts of the country he moved to seeking accommodation and how people knew that the applicant was being targeted by the husband and others who assaulted him.
There is insufficient evidence as to how he knows that if he returns he will be killed.
There is insufficient evidence about his attempts to seek assistance from the police and whether they were able to help him in any way and, if not, what evidence is there that shows they will not protect him.
Given the lack of information identified above, without more detail, it is difficult to know what significance can be attached to the applicant’s assertions. He has not provided any further information to enable the Tribunal to determine if he has suffered persecution in the past; whether there is a real chance that he would be persecuted for one or more of the reasons listed under s 5J(1)(a) of the Act or if his fear is well-founded under s 5J of the Act.
In view of the insufficient information and lack of detail contained in the applicant's claims, the Tribunal is not satisfied that he has been persecuted in the past, or that there is a real chance that he will be persecuted in the reasonably foreseeable future. It is not satisfied that the applicant has a well-founded fear of persecution in the Solomon Islands. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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). It is not satisfied 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 he will suffer significant harm. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Clyde Cosentino
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Remedies
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Standing
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