2403078 (Refugee)

2403078 (Refugee) [2024] AATA 2756 (16 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul O'Connor (MARN: 0854511)
CASE NUMBER:  2403078
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Clyde Cosentino
DATE:16 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 May 2024 at 10:40am
CATCHWORDS
REFUGEE – Protection Visa – Solomon Islands – afraid of the Chinese influence – had not suffered any harm – supporting his children is his main reason for not wanting to return to the Solomon Islands – witchcraft – economic disadvantage, might not amount to persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2024 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 7 December 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.
CRITERIA FOR A PROTECTION VISA
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act.
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.[1] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
Receiving country
The delegate found in its decision that the applicant provided sufficient evidence of his identity which was consistent with his narrative and biometrics. As a result of the delegate’s investigation into the applicant’s identity, the delegate accepted that the applicant is a citizen of the Solomon Islands and there is no information before the Tribunal to the contrary. The Tribunal finds, therefore, that the applicant is a citizen of Solomon Islands, and that the Solomon Islands is his receiving country for the purposes of assessing his claims for protection.
Protection visa application
The applicant is a[age]-year-old widowed male from the Solomon Islands. He is the sole applicant.
He claims to be in contact with relatives outside of Australia on a weekly basis. He claims not to have any personal contacts in Australia.
From February 2021 to September 2021, he lived in [Province 1]. From November 1978 to September 2021 he lived at [a place in Province 1] [Village 1].
He states that he departed the Solomon Islands on [date] October 2021 and arrived in Australia on the same day. He states that he arrived on an International Relations Visa.
He is presently working as a farm labourer in [Town 1]. He claims that he was unemployed from November 1978 to January 2017. From February 2017 to September 2021, he worked as a [occupation] in [Province 1].
He completed primary schooling in [Province 1].
In response to why he left his country, he claims he is afraid for his safety in the Solomon Islands. He claims that the Chinese have control, and they are harmful. It is not safe to object to what they are doing. The government will not protect him. He has nowhere to hide. He objects to the Chinese involvement and is now at risk. He could be taken, killed or tortured if he was to return. He is very scared.
He claims that threats were made to kill him. He claims that he cannot trust anyone in the Solomon Islands.
He claims that he cannot move to another part of the country because all places are unsafe.
He claims that he will be tortured and killed if he returns.
He claims that the authorities cannot protect him because they can be bribed.
He claims that he cannot relocate within the country because everywhere is unsafe.
Tribunal Hearing
The applicant appeared before the Tribunal on 9 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tok Pidgin (Solomon Islands) and English languages.
The applicant stated to the Tribunal that his authorised representative would not be present at the hearing but that he was happy for the hearing to continue.
At the start of the hearing, the Tribunal explained to the applicant the meaning of a refugee and complimentary protection as it was understood under Australian law.
The applicant was asked whether he recalled the original application for a protection visa lodged with the Department of Home Affairs (the department). He stated that he did. He stated that his authorised representative assisted him in putting the application together. His authorised representative lodged the application on his behalf with the department. He stated that the claims that he made were true and correct. He stated that these were the claims that he wished to raise with the Tribunal. He stated that he also had new claims which he wished to raise. The Tribunal indicated to the applicant that he would be given the opportunity to raise these new claims later in the hearing.
The applicant stated, prior to coming to Australia on the first occasion, that he lived at [Village 1], [Province 2], Solomon Islands for four years continuously. He lived at that address with his wife and [children]. His wife lived there until she passed away in 2023. None of his family have been living at this address since his wife passed away. His younger children are now living with their grandmother in [Province 1]. Nobody lives at his house currently.
The applicant went to [Province 2] when he was working. He moved there because of work. His relatives live in [Village 1] village in [Province 2]. His brother and brother’s family live there. His younger (single) brother lives there. They are living there because they have work there. His two brothers were working, and are still working, for the same company that the applicant was working with before he came to Australia. The company’s name is [Company 1]. The applicant and his two brothers all worked for the same company. The applicant worked for four years with [Company 1]. This is why he came to [Province 2] to live.
The applicant is currently working on a farm in [Town 1].
The applicant completed primary school in the Solomon Islands.
The applicant stated that he came to Australia on [date] October 2021. He first came to Australia on a subclass 403 visa. The visa was for two years.
He stayed in Australia and worked under that visa until he departed Australia on [date] June 2023. He went back to the Solomon Islands because his wife had passed away. He stayed there for two months before returning to Australia again.
He departed the Solomon Islands and arrived in Australia on[date] August 2023. He arrived back in Australia on the same subclass 403 visa which had not yet expired. The subclass 403 visa expired on or about 26 October 2023. The company, for which the applicant was working for, applied for an extension of his visa for another two years. They applied when the applicant was in the Solomon Islands. The visa extension application was rejected by the department. The applicant subsequently applied for a protection visa in December 2023.
The Tribunal asked the applicant why he applied for a protection visa at that time. The applicant stated that he applied for a protection visa to remain in Australia to work. He reiterated that his reason for applying for a protection visa in Australia was because, if he was to go back to the Solomon Islands, his children will not be able to attend school. They will be forced to stay at home and not do anything. He stated that because of the opportunity he has, to work in Australia, the protection visa was the best visa he could apply for so that he could continue to support his children at home so that they can continue with their education. He stated that Australia was the only place he could support his children for their future. If he was to return, his children will have to stay at home.
The Tribunal asked him again whether the only reason he applied for a protection visa in Australia was so he could support his children in the Solomon Islands. The applicant stated that it was the only reason. After a very short time, he also noted that there was another reason as well.
The Tribunal asked him about the other reason for him not wanting to return to the Solomon Islands. He then stated that, in the Solomon Islands, China is controlling the Solomon Islands government. He stated that they are giving people money by way of bribes. He stated that China is a big risk to the Solomon Islands. He stated that they are putting their military bases in the Solomon Islands. He stated that this was the other reason why he cannot go back to the Solomon Islands. It is because he is afraid of the Chinese influence there. He then stated that he had no other claims.
The applicant confirmed again that his main reason for not wanting to go back to the Solomon Islands was so that he can support his children while working in Australia.
The Tribunal asked the applicant whether he had suffered any harm in the past. The applicant stated that he had not. He stated that, up to this point, he had not suffered any harm. But, in the long term, he fears that he will suffer harm if he returns to the Solomon Islands. He stated that the Chinese will take over his property and lands. He confirmed again that he had not suffered any harm in the past. Again, no harm in the past but harm in the future.
The Tribunal then asked why he believed that the authorities or police will not help him. He stated because the Chinese bribe the authorities and officials. He stated that one cannot trust them for help.
The Tribunal asked why he believed that he will be personally targeted. He stated that they will not target him personally. However, he was worried in the future for his children. They will be the one’s effected by the Chinese influence. He is worried for his children in the future.
The applicant reiterated that he was presently supporting his children in the Solomon Islands. Currently, their school fees are very high. His eldest daughter is presently at university. His second eldest daughter is in [a grade] and his youngest is in [primary school].
The Tribunal put to the applicant that it appears that he will not be targeted personally and that this was an issue experienced by all the population generally there. The applicant agreed that he would not be targeted personally. However, if he returns, he will not be able to support his children while living there. He will not be able to find work to support their education. The worry for him is that he will not be able to support his children. He stated that supporting his children is his main reason for not wanting to return to the Solomon Islands.
The Tribunal asked whether there was anything else he wanted to say in support of his claims. The applicant stated that if he goes back to the Solomon Islands, people in his village will see that he had money because he came from Australia. He stated that they would be jealous. He also stated that witchcraft was very strong in the Solomon Islands. He again stated that his greatest fear was not for him but for his children.
The Tribunal indicated to the applicant that his claim that his village will be “jealous” of him if he were to return might not amount to serious harm or significant harm. The applicant then stated that the Tribunal should exclude this claim after he had just made it. He stated that if he was to return to live in the Solomon Islands, then jealousy from local villagers would not be a concern as he would not be seen to be working anymore in Australia and would be seen not to have any money. It is only when they see him working in Australia and sending money back to the Solomon Islands that they see that he is prosperous. He stated that he has not been harmed by jealousy at this time. If he returns to live in the Solomon Islands, he will have no work there and therefore will not suffer any harm. He stated that when he returned home for two months for his wife’s funeral, he experienced no problems at all. He stated that he has paid compensation for all his wife’s debts. There are no more debts.
The Tribunal then referred the applicant to his new claim made at the hearing relating to witchcraft. The applicant stated that it was said by locals in his village that his wife passed away because of witchcraft. He is worried for his children. The Tribunal indicated that it had no evidence at all from the applicant that there was any association between his wife’s death and witchcraft and that his wife could have simply died from natural causes, as sad as it was. The Tribunal indicated that it might not believe that witchcraft had anything to do with his wife’s death. The applicant agreed. He stated that he did not believe in witchcraft. He was a religious man. He stated that these were things told to him by locals. The Tribunal asked how he believed his wife died. He stated that he believed she died because God had called her.
The Tribunal then put independent country information to the applicant for his comments. The Tribunal referred to the newly released US State Department Reports: Solomon Islands 2023 Human Rights Report, which was published on 22 April 2024. It referred to parts of the report which stated that there were no reports that the government or its agents committed arbitrary or unlawful killings. There were no reports of disappearances by or on behalf of government authorities. The law prohibited torture, inhuman or degrading treatment or punishment and other related abuses and there were no credible reports that government officials employed them. It reported that impunity was not a significant problem in the security forces. There were no significant reports regarding prison or detention centre conditions that raised human rights concerns. The constitution prohibited arbitrary arrest and detention and provided for the right of any person to challenge the lawfulness of their arrest or detention and the government generally observed these requirements. The constitution provided for an independent judiciary and the government generally respected judicial independence and impartiality. The law provided for the right to a fair and public trial and an independent judiciary generally enforced this right. There were no reports of political prisoners or detainees. The constitution provided for freedom of expression, including for members of the press and other media; and the government generally respected this right. An independent media, an effective judiciary and a functioning democratic political system combined to promote freedom of expression, including for media members. The constitution provided for the freedom of peaceful assembly and association, and the government generally respected these rights. The constitution provided citizens the ability to choose their government in free and fair periodic elections.
The Tribunal indicated that this independent country information might indicate that is no real chance of suffering serious harm or real risk of suffering significant harm because of influence or control of the Chinese on the Solomon Islands government or authorities or officials in any way. There is no reporting of Chinese influence or control at all. The applicant stated that he was relying on what he had put in his application. He reiterated that he had not suffered harm up to this point. He stated that what his lawyer had put in the application is what he presents to the Tribunal.
The Tribunal indicated that general economic conditions in Solomon Islands which may result in economic disadvantage, might not amount to persecution. While persecution may take a variety of forms of social, political and economic discrimination, persecution must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal indicated that the need to support his children while working in Australia or insufficient income to support his family, all might not appear to be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment. The applicant stated he does not have the ability to write. He works in Australia to earn money. In the Solomon Islands he will not have any work to support his children. He is not educated. He can speak but he cannot write. He is worried that he will not be able to find work because of lack of education if he returns. His children help him. They read to him. He sees the opportunity in working in Australia as very important for him. Working on the farm is very important for him so that he can earn money. If he loses this ability to earn money it will be harmful if he returns.

The Tribunal indicated that complementary protection obligations are concerned with intentional acts or omissions by third persons. The risk to the applicant, because of the state of the Solomon Island economy, economic insecurity or insufficient income to support his family might appear to be one faced by the population of the country generally and not faced by him personally. These conditions faced by him would apply to all citizens in Solomon Islands. These conditions might not amount to significant harm as he had heard defined at the start of the hearing.
The applicant stated that he did not have any other option but to follow the law of Australia. If he stays in Australia, it will be very good for the applicant. If he cannot stay in Australia, then it will be harmful to himself and his family. While he agrees that it is conditions suffered by everyone in the Solomon Islands, his family will suffer if he has to return. It will be harmful to him and his children if he is sent back.
The Tribunal asked if there was anything else he wanted to say in support of his claims. He stated that there was not.
Findings and Assessment
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility[2] and accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
Applying for a protection visa in Australia to support his children in their education back in the Solomon Islands
[2] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal finds the applicant’s claims that he will not be able to financially support his children’s education if he returns to the Solomon Islands to be generally credible. The Tribunal is willing to accept the applicant’s evidence that, were he to stop earning an income in Australia, he will not have an ability to pay for his children at university and at school in the Solomon Islands. It accepts the applicant’s evidence that his main reason for lodging a protection visa was to give him more time to remain in Australia to work so he can support his children. On the applicant’s own oral evidence, he applied for a protection visa when the company he was working for was unable to secure an extension of his specific work visa, leaving him with no option but to apply for a protection visa so that he could remain lawful in Australia and continue to work to support his children.
The Tribunal found the applicant to be generally credible in his concern to support his children in the Solomon Islands. It accepts his concerns that he might struggle to find work in the Solomon Islands which will bring an adequate income that will help him support his children and their education in the Solomon Islands. However, as discussed with the applicant at the hearing, general economic conditions in the Solomon Islands which may result in economic disadvantage, including earning an income that financially supports his children’s’ education, do not amount to persecution. The courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[5] The economic conditions faced by the applicant would apply to all citizens in the Solomon Islands.
[5] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429
The Tribunal finds that the harm feared by the applicant, namely that he will not be able to earn a similar income or access similar work opportunities in the Solomon Islands compared to Australia in order to support his children, to not be for any of the reasons in s 5J(1)(a) of the Act. It follows that the requirements in s 5J(4)(a) and s 5J(4)(c) - that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct - are not satisfied.
For the above reasons, the Tribunal finds that the applicant does not have a well-founded fear of persecution in the Solomon Islands and is therefore not a refugee.
As the Tribunal has found the applicant to not be a refugee in this instance, it has considered whether he satisfies the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the Solomon Islands, he will suffer significant harm. The Tribunal notes that ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

59. The Tribunal finds that the harm feared by the applicant, namely that he will be unable to earn a similar income or have access to similar work opportunities in the Solomon Islands compared to Australia resulting in him not being able to financially support his children, to not amount to any of the types of significant harm defined in s 36(2A). In addition, the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[6] Any economic disadvantage that the applicant may experience due to general economic conditions in the Solomon Islands, would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions. As such, the Tribunal finds that the claimed harm does not amount to significant harm.
China’s influence on the Solomon Island government and officials
[6] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).

The Tribunal has considered the applicant’s claims that China is influencing or controlling the Solomon Islands government, as well as the Solomon Island authorities and officials. The Tribunal notes the applicant’s claims that he will not be targeted personally and that he is not worried for himself but for his children in the future who will be affected by Chinese control or influence on government and society.
The Tribunal finds that this fear is not well-founded at all. The applicant has given evidence that he has not been harmed at all in the past because of any Chinese control or influence over government or authorities or officials. The applicant did not provide any documentary evidence at all that there is Chinese control or influence of the government or authorities or officials in the Solomon Islands.
The Tribunal acknowledges Freedom in the World 2023 - Solomon Islands, Freedom House, 2023 (Part F3) report which states:
In the wake of the November 2021 riots, Chinese police were deployed in March 2022 to train the Solomon Islands police officers in combat skills and emergency crowd management. The unpublished security agreement reached with China in April 2022 reportedly allows for the deployment of Chinese armed police to help control disturbances in the country and protect foreign-owned capital assets.
However, as discussed with the applicant, the same Freedom in the World 2023 - Solomon Islands report indicates a government, its authorities and officials functioning independently and without any foreign influence:
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.
Moreover, the most recent US State Department Reports: Solomon Islands 2023 Human Rights Report (published 22 April 2024) does not report on human rights abuses being committed by the government, authorities or officials of the Solomon Islands. There is no mention at all in this latest US State Department Report that there has been any Chinese influence on the Solomon Islands government, its authorities or officials.
Finally, as discussed with the applicant, the Department of Foreign Affairs and Trade Brief on the Solomon Islands[7] states that:
The conclusion of the Regional Assistance Mission to Solomon Islands (RAMSI) in June 2017 was a recognition of the Royal Solomon Islands Police Force’s capability to independently provide law, order and security for Solomon Islands. Australia continues to support security and stability in Solomon Islands including through a strong Australian Federal Police partnership, a 40-year Defence Cooperation Program and growing ties between our border agencies.
On 14 August 2017, our governments signed a new security treaty which allowed Australian police, defence and associated civilian personnel to deploy rapidly to Solomon Islands in the event of an emergency. This agreement entered into force on 13 June 2018. The treaty was activated for the first time in November 2021 following civil unrest in Honiara, resulting in deployment of Australian, New Zealand, Fijian and Papua New Guinean officers to the Solomons’ International Assistance Force (SIAF). At Solomon Islands’ request, Australia agreed to extend SIAF to provide security support for the 2023 Pacific Games and the 2024 National General Elections.
[7] Solomon Islands country brief | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
The Tribunal has considered the applicant’s responses that he does not know what is happening at the “high levels of government” and that, living in rural areas, he does not concern himself with media very much. However, having considered the applicant has not provided any documentary evidence to support his claims, and given that he has given oral evidence that he has not been harmed in the past in any way, and given the country information above which does not indicate any Chinese influence or control of the Solomon Islands government or authorities or officials, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to the Solomon Islands, he would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political option. The Tribunal finds, therefore, that the applicant does not meet the requirements of s 5J(1)(a) or s5J(1)(b) of the Act.
Having considered the applicant has not provided any documentary evidence to support his claims, and given that he has given oral evidence that he has not been harmed in the past in any way, and given the country information above which does not indicate any Chinese influence or control of the Solomon Islands government or authorities or officials, the Tribunal is not satisfied that there is real risk that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the Solomon Islands, he will suffer significant harm. The Tribunal finds, therefore, that the applicant, in this instance, does not meet the requirements of s 36(2)(aa).
Jealousy of the applicant village towards the applicant
The applicant briefly raised a new claim at the hearing that there will be jealousy towards him by local villagers because he would be seen as prosperous having worked in Australia. However, when pressing the applicant on what he meant by this, the applicant resiled this claim giving his reason that the villagers would be jealous of him only while he was working in Australia. He stated that, if he was to return to live in the Solomon Islands, there would be no jealousy towards him because he would not be seen to be working anymore in Australia. The applicant stated to the Tribunal that it should disregard this claim after having initially made it. Given that the applicant raised this as a brief new claim at the hearing, only to resile the claim on the basis that it would not be relevant if he was to return to the Solomon Islands, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to the Solomon Islands, he would be persecuted for one or more of the refugees reasons in s 5J(1)(a) of the Act, nor is it satisfied that there is real risk that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the Solomon Islands, he will suffer significant harm.
Witchcraft
The applicant briefly raised a new claim at the hearing that local villagers had told him that his wife had died of witchcraft. The applicant initially stated that he was worried for his children. When queried further on this, the applicant agreed that there was no evidence provided that there was any association between his wife’s death and witchcraft and that his wife most likely died from natural causes. The applicant stated that there was no evidence that witchcraft was involved.
The Tribunal accepts the applicant’s evidence that he is a religious man and does not believe in witchcraft. Given that the applicant has given evidence that he does not believe in witchcraft, and given there has been no evidence provided at all that the applicant or his children will be harmed as a result of witchcraft, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to the Solomon Islands, he would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political option. The Tribunal finds, therefore, that the applicant, in this instance, does not meet the requirements of s 5J(1)(a) or s5J(1)(b) of the Act.
Given that the applicant has given evidence that he does not believe in witchcraft, and given there has been no evidence provided at all that the applicant or his children will be harmed as a result of witchcraft, the Tribunal is not satisfied that there is real risk that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the Solomon Islands, he will suffer significant harm. The Tribunal finds, therefore, that the applicant, in this instance, does not meet the requirements of s 36(2)(aa).
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to the Solomon Islands, there is a real risk that he will suffer significant harm.
OVERALL CONCLUSION
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 section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Clyde Cosentino
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.
…

[2024] AATA 2756

16 May 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction