2401671 (Refugee)
[2024] AATA 1950
•21 March 2024
2401671 (Refugee) [2024] AATA 1950 (21 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2401671
COUNTRY OF REFERENCE: Solomon Islands
MEMBER:Clyde Cosentino
DATE:21 March 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 21 March 2024 at 12:06pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – tribal land disputes – applicant’s family’s land claimed by another family/tribe – harm, threats and black magic – inaction by police – successful legal action – no appearance at hearing – insufficient details of claims – applicant’s responsibility to specify particulars and provide evidence – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 426A(1)(a)
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant is a [Age]-year-old national from the Solomon Islands.
[In] January 2023, the applicant arrived in Australia.
On 9 October 2023, the applicant lodged an application for a Protection visa with the Department.
On 5 January 2024, a delegate of the Minister for Immigration and Border Protection refused the applicant’s Protection visa application under s 65 of the Migration Act 1958 (Cth) (the Act).
On 30 January 2024, a valid application for review, of the decision to not grant the applicant a Protection visa, was lodged with the Tribunal.
In the application for review, the applicant listed his email address and his mobile number as points of contact. The applicant also provided a copy of the delegate’s decision.
CLAIMS AND EVIDENCE
According to his Protection visa application, the applicant was born in [Island], [Province], Solomon Islands. He last resided at [Location], Solomon Islands before his departure from the Solomon Islands. He completed his primary schooling in [Island] but did not complete his Secondary schooling in [Location]. He undertook [studies] at [Institution] in [Location] but did not complete his studies. He claims that he has never married and that he has family members living in the Solomon Islands. He claims that he can speak, read and write both Solomon Island Pidgin and English languages respectively.
The applicant made claims in his protection visa application as follows.
He claims that he left his home country because he found out about [an Australian visa]. He saw it as an opportunity to escape consistent threats and harm from opposing party over tribal land disputes. He then applied for a visa to come to Australia. He was granted a visa to enter Australia legally [in] November 2021.
He claims he experienced harm in his home country. He claims that he and his family have been facing consistent threats from opposing party claiming the land is theirs notwithstanding that the applicant and his family have lived on this land for years (decades. These threats include “brutal physical harm to the applicant and his father and some other close family members” who also lived on the land. The threats also included verbal threats and even going so far as using black magic or evil forces to try and get rid of the applicant and his family members. The opposing party happens to be other tribes who claim the land as theirs, which the applicant and his family own.
He claims that he has reported the matter and the abuses to the relevant authorities and police but that no action was followed up on.
He claims that he tried to move to other parts of the country. He moved to [Location], but he still received consistent verbal threats and psychological threats from the opposing party/tribe. Many of the family members of the disputing party also live in [Location].
He claims that he does not believe that it is safe to return to his home country due to the previous threats, which might lead him to being killed.
He claims that he has been harmed and mistreated by the opposing party/tribe over the past few years. He will likely face it again if he returns. The opposing party/tribe still hold grudges against the applicant and his family after the applicant and his family won the legal battle in court over the disputed land.
He claims that the authorities cannot protect him because he has reported the matter to them in the past, but they did not take any action. He claims that the authorities are also corrupt.
He claims that he is in fear of returning and relocating elsewhere in the country. He has in the past reported the incidents to police, but they have done nothing in the past. The country is also small, and he will not be able to escape verbal threats and psychological threats from the opposing party.
As already noted, the delegate refused the application and the applicant applied for a review of that decision.
On 23 February 2024, a Tribunal officer contacted the applicant, at the Member’s request, seeking a response to whether the applicant would withdraw a second and subsequent application for review lodged at the Tribunal on 1 February 2024. A message was left on the applicant’s mobile to contact the Tribunal back to discuss the second application. The applicant did not make contact with the Tribunal.
On 27 February 2024, the Tribunal wrote to the applicant, in relation to the valid application for review lodged on 30 January 2024, an “Invitation to Attend a Hearing” letter advising that it 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 21 March 2024 at 9:30 am (QLD time). A specific time, date and place was provided in the Invitation letter.
The Invitation letter was sent to the applicant by email to his last notified email address. Also attached to the “Invitation to Attend a Hearing” letter was the following covering email from the Tribunal Registry officer, sent to his last notified address:
Dear [Mr 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.
On 14 March 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 21/03/24. 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 20 March 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 21/03/24. 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 21 March 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 detail before the Tribunal in relation to why he believed coming to Australia was an opportunity to escape consistent threats and harm from an opposing party over land disputes. There is insufficient detail of the threats and harm made, who made those threats and caused the harm, when those threats and harm occurred and where the threats and harm occurred.
There is insufficient detail of what lands were under dispute, where the lands that were under dispute were situated, how many of his family members owned these lands, and how long these disputes had gone on for.
There is insufficient detail of who was the opposing party, whether he knew the people who were part of this opposing party, whether these people lived in the same area as him and what exactly were they disputing when it came to land ownership.
There is insufficient detail of what harm specifically were suffered by his father and some of his close family members, and when and where this harm occurred to them. There is insufficient detail of the verbal threats made. There is insufficient detail of what he meant when claiming that the other party used black magic or evil forces to rid the applicant and his family off the land. There is insufficient detail of who exactly the other tribes were who were claiming the land as their own.
There is insufficient detail as to when he reported the incidents to the police and relevant authorities and how he was not assisted by them at all.
There is insufficient detail as to when he continued to receive verbal and psychological threats from the other party after having moved to [Location]. There is insufficient information as to how the other party came to know that he had moved to [Location]. There is insufficient detail of who the family members of the other party are who are living in [Location] and how he came to know they live there and how they knew the applicant lived there.
There is insufficient detail of why he does not believe that it is safe for him to return and why he believes that he might be killed.
There is insufficient detail as to how he has been harmed and mistreated over the last few years, where this harm and mistreatment occurred and by whom.
There is insufficient detail as to how he knows that the other party still holds a grudge against him and his family after his family won a legal battle in court over the disputed land. There is insufficient detail about the legal battle itself and what court orders are in place giving the applicant and his family security over the land.
There is insufficient information as to why he claims the authorities are corrupt and what makes him believe they will not assist him against the other party.
There is insufficient detail of the times and places he has reported the incidents to police and what was their response to the enquiries. There is insufficient detail of why he will continue to face verbal and psychological threats from the opposing party.
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
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Standing
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Natural Justice
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