2403426 (Refugee)

[2024] AATA 4187

2403426 (Refugee) [2024] AATA 4187 (5 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2403426

COUNTRY OF REFERENCE:                   Solomon Islands

MEMBER:Clyde Cosentino

DATE:5 August 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 05 August 2024 at 4:28pm

CATCHWORDS

REFUGEE – protection visa – Solomon Islands – race – tribal conflict – forced relocation – physical assault – fear of killing – employment – state protection – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, 10 March 1998
Applicant A v MIEA (1997) 190 CLR 225 at 258
Chan v MIEA (1989) CLR 379
Makouei v MIMA, unreported, Federal Court of Australia, 6 February 1998
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Solomon Islands, applied for the visa on 26 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.

3. The applicant appeared before the Tribunal on 8 May 2024 to give evidence and present arguments in support of his claims.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

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

    Receiving country

11. 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. As there is no information before it to the contrary, the Tribunal finds that the applicant is a citizen of the Solomon Islands, and that the Solomon Islands is his receiving country for the purposes of assessing his claims for protection. 

    Protection visa application

12. The applicant is [an age]-year-old male from the Solomon Islands. He is the sole applicant.

13. He claims to have lived at an address in [Suburb 1], [in] Honiara, Guadalcanal.

14. He states that his last arrival into Australia was in August 2021. 

15. From [specified year] to August 2021, he was unemployed in the Solomon Islands. He states that he was a youth leader in his community at that time and was being supported financially by his family. He claims from August 2021 to December 2022, he was a farm hand in [Town 1], Queensland.  From December 2022 to October 2023, he was unemployed.  During this time, he was being supported by a Church and charity group.   

16. In response to why he left his country, he claims he left his village because of tribal conflict between his tribe and the [Tribe 1] over the [Development 1].  He claims that suitable [resource 1] deposits were found in [a named] village. The [Tribe 1] tried to make their own claims over the land and make the land their own by any means possible. They burnt down his village.  They all had to leave the village and relocate. He was threatened and told that if he ever tried to go after the land documents he would be killed. This is when he decided to leave. 

17. He claims that there has been conflict between the two tribes. He claims that two people from his tribe were killed by the [Tribe 1].  The applicant claims that he went to hospital in a serious but stable condition.  He feared for his life and ran away. 

18. He claims that all their tribal land and ownership documents are with the [Authority 1]. He claims that the [Court 1] has ruled that they are the rightful owner of the land.  He claims that his lawyer has told them that their case is still being processed. The applicant was told to leave the country for now and to stay away from the threats that he received from the [Tribe 1].

19. He claims that he had not moved to another part of the country because there are cultural differences there.  He also claimed that there is no ability to work or live elsewhere in the country.

20. He claims that, if he returns, he will be murdered.  The [Tribe 1] will hunt him down and kill him.  He claims that he is the son of [a former leader]. The [Tribe 1] are looking for him to sign documents that are not true. 

21. He claims that he will experience harm if he returns.  He claims that the [Tribe 1] will follow him anywhere he goes within the country. They want him to sign this document, but he does not want to sign it.  He claims that they murdered his late [Relative A].

22. He claims that the authorities and police cannot and will not protect him because they are corrupt. He claims that there is a lot of money that changes hands when companies come from overseas and want to use the land.

23. He claims that, because of cultural differences, he cannot relocate to another part of the country.

    Application for review

24. The applicant lodged an application for review to the Tribunal on 7 February 2024. The applicant also attached a copy of the delegate’s decision as part of that review.

    Tribunal hearing – 8 May 2024

25. At the commencement of the hearing, the Tribunal asked the applicant whether he required the assistance of an interpreter. The applicant replied that he did not and was comfortable in presenting arguments in English without the assistance of an interpreter. 

26. The Tribunal explained to the applicant, at the start of the hearing, the refugee criterion and the complimentary protection criterion separately and how they applied under Australian law respectively. 

27. The applicant recalled lodging his application for a protection visa in October 2023. He was assisted by a person who helped him complete the application. He stated that he told this person his particulars and claims and he wrote these in the application.  The applicant stated that he gave this person all the information needed. 

28. The applicant then stated that everything in the application was true and correct and that these were the claims he wanted to raise at the hearing and that there were no new claims being made.

29. He stated that his previous address in the Solomon Islands was in [Suburb 1], [in] Honiara.  He moved to [Suburb 1] in January 2021. He moved there because his sister lived there.  She lives there with her husband.

30. Prior to that, he had lived most of his life at his village called [Village 1] in Guadalcanal Province.  He had lived there with his [Relative A] from 2010 after his father passed away. [Details deleted.] The applicant lived with his [Relative A] and his [family]. 

31. The applicant stated that his father died in 2010 and his mother died in 2015. His mother moved away after his father died.  He did not have any contact with her then. He has [specified family members] whom live in Honiara.  [Details deleted.] The applicant stays with his married sister when he goes to Honiara.  [One sibling] is working.

32. [Details deleted.]

33. He stated that, prior to living in Honiara, he lived in [Village 1], Guadalcanal province.  He lived in [Village 1] since he was young. He left there in 2020.  He was living there with [the family of] his [Relative A].

34. He did not work in the Solomon Islands. He undertook Church activities and village activities there. He supported himself by growing vegetables and being financially supported, in part, by his sister who he was staying with.

35. When asked who paid for his visa and airfare to Australia, he stated his sister paid for his medicals and visa.  The sponsor from Australia, [named], deducted his airfare from his salary in Australia. He came to Australia on a government scheme which he applied for in the Solomon Islands. He came to Australia on a subclass 408 visa.  He arrived in Australia in August 2021. The visa was for 9 months. His sponsor then renewed the visa after this time for another 6 or 9 months. After this time, the applicant applied for a protection visa. The applicant was working on a farm, picking [fruit], under this government scheme.  He has been a farm hand since arriving in Australia. He stated that his purpose for coming to Australia was to work. He heard about the scheme in the Solomon Islands in 2021 from others in the country who came on the same government scheme previously.

36. He stated he applied for the scheme because he had some problems inside his village.  Some of his [relatives] died.  They were killed by the [Tribe 1] members.  His [relatives] were killed in January 2021.

37. His sister lived in Honiara because she was married. He was not staying with her.  He lived in [Village 1].  He stayed with his [Relative A] there.   He was living with his [Relative A] and his family. He also lived with his [specified relatives].  He had lived in his village since his childhood.

38. He stayed with his sister in [Suburb 1] for several months before coming to Australia.  Since 2010, he lived at [Village 1] with his [Relative A]. He lived with his [Relative A] since his father passed away.  His [Relative A] took responsibility for him.  His mother did not live with him.  The last time he saw his mother was when his father died.  She moved away in 2010. 

39. His [Relative A] died in 2021. He does not know where his [relatives] have gone now.  He has not spoken to them since he moved to his sister’s house.  His sister lives in Honiara.  [Details deleted.]  [One] sister is married. He gets on well with [this] sister.  He has lived on and off in Honiara with her at her house.  He was not working in Honiara.

40. When asked why he applied for protection in Australia, he stated because of the dispute between his tribe and [Tribe 1]. This was his main reason.  He is fearful that some people in his tribe will be killed because of the dispute, and he will be caught up in this.  The other reason is that he cannot find work in the Solomon Islands but can earn more money by working in Australia.

41. He stated that the dispute between the tribes has been going on for a long time.  He was unsure how long.  He thinks before he was born. When he left, he stayed with his sister in Honiara because there was a dispute between his village and the [Tribe 1] and some of the houses were burnt.  His [Relative A] died as a result of the attacks.  He was worried. He also had a fight with some of the youth of [Village 2]. He had to go to Honiara to be away from the fight. This is when he was told that he could apply for a seasonal worker program. He did not feel safe there, but it was better than his village.  His village is about [distance] from Honiara.

42. He stated that the police were involved in the tribal dispute and tried to stop the dispute. When the police came, they stopped the dispute but when the police left, they started again.

43. The dispute is about [resource 1] that exists inside his village land.  The applicant thinks his village has a right to that [resource 1]. His village has gone to court.  The court has decided that his [village] is the rightful owner.  The court has not made the final decision yet. He was unsure as to why the court had not made the final decision yet.  The village is still there but some of the houses were destroyed, and some people have moved away.

44. The applicant stated he has been threatened when he has argued with the other tribe.  He was threatened in January 2021 by the youth of [Tribe 1]. When asked why he was threatened, he stated that maybe it was because his father used to be [a leader] of the village during his time and maybe they thought the applicant might know the story behind the [resource 1]. The Tribunal put to him that he has lived there all his life in the village and the dispute has been going on for a long time and even in 2010 when he was there on his own after his father’s death, nothing happened to him.  The Tribunal queried why the dispute would suddenly occur in 2021.  The applicant was unsure as to why this was the case.  He responded that while he lived there, sometimes there were arguments and sometimes there were not. The arguments continue when they meet up with each other. For example, when the youth of [Tribe 1] were drunk they would swear at the applicant.  The Tribunal again queried the applicant as to why nothing happened to the applicant for ten years after 2010 but that all of a sudden, in 2021 they threatened him. The applicant stated that he did not know why this was the case.

45. The Tribunal put to the applicant that in his application he stated that all his tribe had to leave the village.  He responded that he thought that not everyone had moved but a majority of them moved away.  Some moved to other villages but since then he has not been in contact with them.  He stated that there were people still living in his village.

46. The Tribunal raised its concerns with the applicant that he lived all his life in his village and that, before leaving the village, he claimed that this incident occurred in his village, and then the incident to his [Relative A] and [relatives] occurred. 

47. The Tribunal then asked what has happened to the applicant that has made him leave this village.  He stated that he was fighting the youth of the other tribe in January 2021.  There was an argument, and a fight broke out about the land. He was hit (by fists) and he came to the hospital.  A friend subsequently took the applicant to his mother’s home. The following day after the fight, he decided to go to Honiara to stay with his sister. He stayed with his sister there and lived there from the following day. After this incident, he stayed in Honiara until coming to Australia.  He stayed in Honiara from January 2021 until August 2021. He never went back to his village.  He stayed mostly at his sister’s home.  He stayed with his friends for a few days from time to time. He was welcomed at his sister’s home.

48. The applicant confirmed that he had a fight with youth of the [Tribe 1] in his village which made him leave and not go back after January 2021. The applicant then raised new claims that these youth from [Village 1] caught up with him at Honiara at the markets. The Tribunal indicated that this was new information not mentioned before. The applicant agreed with this. The Tribunal indicated that by raising this as a new claim at such a late stage that this might go to the credibility of whether it happened or not.  He was invited to comment on this. The applicant responded that it did occur.

49. The Tribunal indicated that it might have concerns about claims that he made in his application.  It indicated that he made claims in his application that he was sent to hospital with serious injuries as a result of a dispute. The applicant stated that this was not quite true.  He stated that he was fighting during that time and then he went to the hospital where he met up with his friend who asked him want happened.  The applicant told him that he had a fist fight.  His friend stated that he would call his mother and they could go to his friend’s house to be treated.  The applicant subsequently went to his friend’s home where his friend’s mother lived. The applicant went to the hospital but met up with his friend there and he took him to his mother’s house.  She was a nurse.  He was treated and then he left.  The applicant’s friend’s mother attended to the wounds which were” fingernail” wounds. He then went back to his sister’s house.

50. The applicant stated that his sister had been living in Honiara since she married. She had been living there for about four years.  She is still living in Honiara.  It is just his sister and husband living there.  They have no children.  They are living on their own at the house in Honiara.

1. The applicant stated that he went to stay with his sister in Honiara, prior to January 2021, on a number of occasions.  When he needed money, he would go to visit his sister.  The Tribunal asked the applicant whether, in the four years the sister was living in Honiara, he would go and visit his sister often.  The applicant responded that he did. He stated that he would stay with her when he visited Honiara.  His sister would welcome him there.  The applicant stated that he got on well with his brother-in-law depending on whether his brother-in-law had been drinking or not.

2. The Tribunal asked whether there were royalties that the family was receiving from the [resource 1] mining.  He did not know how much royalties there were. He stated that the tribe received the money. He thought there was a lot of money that came in.  The money was distributed among the families through the elders. The applicant did not know whether he was the head of the family or whether his sister was the head of the family.  The applicant stated that his [Relative A] was receiving the money as the head of the family.  The applicant stated that he did not receive the benefits of the money.  He did not think that his sister was receiving any of this money.

3. The Tribunal indicated that in his application he stated that the [Tribe 1] will follow him anywhere in the country to sign the document.  The Tribunal queried why they would come after him after he had just said that he had no say in the documents.  He stated that he is the son of [a former leader] and they will think that he will be able sign the documents. He stated that they were confused because they did not know that he could not sign the documents. He stated that he did not have the authority to sign the documents even though he is the [former leader’s] son.

4. The Tribunal indicated that it might have concerns that the [Tribe 1] could have forced him to do this at any time between 2010 to 2021. The Tribunal queried why suddenly, in January 2021, they wanted him to sign the documents. He stated that he did not know. He stated that maybe it was a threat for him to do this, but he did not know. When asked who told him about this threat, he stated the youth from [Tribe 1] told him this when they argued.  They told him he should sign the documents.  He said that some of them were older than him.

5. The Tribunal indicated that he lived for seven months in Honiara without anything happening to him.  In his written claim he stated that they would hunt him down and kill him wherever he went.  The Tribunal indicated it might appear that it was safe for him to live in Honiara, being [distance] away from his village and living there for seven months safely. He stated that he might be safe a second time.  If they do not come for him, he could live in Honiara. But if they come for him in Honiara, he fears they might harm him. His real fear is when he is back in his village. If they meet in Honiara, he does not know what they will do to him. He fears they might kill him. But he was unsure.

6. The Tribunal indicated that he provided very little information and supporting evidence in his protection visa application; that he was asked by the Department to provide more details and he did not do so; and that he lodged his review application and did not provide any supporting documents.  He did not provide any supporting documents and evidence except what he has written and told the Tribunal at the hearing. The Tribunal indicated that it would consider everything that was before it.  However, there seems to be very little provided by him by way of supporting evidence.  The Tribunal invited him to respond.   The applicant stated that the only evidence he has is what he can say.  Any other evidence is hard for him to obtain. 

7. The Tribunal asked whether he had received any help from the police. The applicant stated he did not as he did not know how to approach the police in the right way. He did not know how to explain to them.  They might not think he was serious about what he was explaining to them.  They might not want to help him. The Tribunal indicated they might help if he asked.  The applicant agreed with the Tribunal on this.

8. The Tribunal asked whether he could give the police any evidence that he was the son of a [former leader]. He stated that he cannot.

9. The Tribunal asked whether he could relocate to another part of the Solomon Islands if he returned. He stated that he could. But the Solomon Islands provinces do not have a good economy.  He cannot find work there.  It is really hard.  He can live there but it is difficult to go there in the future.  It is difficult if he had children to take them there.  There is little education in the provinces.  It is not good for the future of his children. The Tribunal put to him that he still might find safety there.  The applicant agreed that he could find safety elsewhere.  However, he cannot earn money in the other provinces.  It depends on the other villages.  If they invite him in he will be okay.  But if they do not invite him in, he will be in trouble. The Tribunal asked why he could not relocate to Honiara. He stated that he was finding it hard to live there.  He could not find work there.  It was hard finding work.

10. The Tribunal asked whether there was anything else he wanted to add in support of his claims. He stated that if the Tribunal needed anything for him to do or to give the right information then the Tribunal can ask him.  If he has evidence, he will give it to the Tribunal.

11. The Tribunal asked if there was anything else he wanted to add.  He stated that he did not.

12. The Tribunal put country information to the applicant for his response and comments.

13. It indicated that recent country information in a 2023 report stated that the judiciary has a reputation for independence, though a severe lack of resources has contributed to case backlogs. Judges are appointed by the Governor-General. 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 rebuilt with the help of the Australian-led Regional Assistance Mission to the Solomon Islands (RAMSI).  This information might suggest that there is a strong independent judiciary, and a strong police force that can assist in any conflict in the Solomon Islands.

14. The applicant responded that the police force is not like the police force in Australia.  When one requests their assistance in the Solomon Islands, if they cannot do anything or if they see that their friends or relatives are involved, they will not do anything.  They do not work properly.  If there is a request for them to come, sometimes they come and sometimes they do not. In the Solomon Islands there is a” wantok” system at work – a relative to relative structure.  They work more closely and better if there are relatives involved.  If there are no relatives involved, they will not come to help.  The Tribunal indicated that because [Village 1] was far away, it would appear unlikely that this village had relatives in the police force.  He stated that they might have relatives or friends.  He was not sure.

15. The Tribunal put further information to the applicant. It stated that the US Department of State Report 2023 stated that the country’s Constitution has an independent judiciary. The law provides for a fair and public trial. It talks about the court system dealing with conflict situations and dealing with it fairly. The applicant responded that when one takes cases to court everybody comes and sits around and listens. The two parties come to the court with their people and can cause trouble outside the court. They do not fear anything and they do not follow the rules.

16. The Tribunal indicated again, this time referring to the Freedom in the World 2023 report, that there were 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 decreased 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. The applicant responded that there is nothing else to add except they can still do crime even when the police force is there.  If their relatives are inside the police force, they know they can get away with things.  They are scared of the police.

17. The applicant stated that his fear is because he is the [son] of a [former leader].  His fear is that they might kill him somewhere if they meet him. He does not know what they want to do with him.  The Tribunal put to him again that he was [in the same position] even back in 2010 and had been living in the same village since 2010 and nothing happened to him. It indicated that his fear might not be well-founded. He had no comment to this.

18. The Tribunal indicated that there was a Penal Code in the Solomon Islands which states that any unlawful acts, including assault, and more serious offences such as murder and grievous bodily harm carry significant terms of imprisonment, including life imprisonment. The Tribunal indicated that the Solomon Islands has strong criminal laws. The applicant agreed with this and if he was killed they might go to prison. However, it would be too late because they would have killed him already.

19. The Tribunal indicated that country information might suggest that there is effective and adequate protection by the Solomon Island police and authorities and that this is available to him. Country information might suggest that state protection is available to him upon his return to the Solomon Islands. The applicant responded that if he went back, the police do not know when the other village is coming after him. They can only act on what they know. The applicant does not know when his enemies will come against him.  This is why he decided to apply for a protection visa to help his kids in the future.  He did this to help their schooling and education in the future, if he did have children in the future.

20. The Tribunal indicated that the applicant raised a claim about economic harm.  The Tribunal indicated that general economic conditions in Solomon Islands which may result in economic disadvantage, may 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 cost-of-living pressures, insufficient income economic insecurity, insufficient income to support his family in the future, 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 responded that he is being targeted because he is the son of a [former leader].  They are targeting him as a family member. The Tribunal indicated that work related problems does not amount to him being specifically targeted. This might not amount to him being persecuted for race, religion, nationality, political opinion or membership of a particular social group. The applicant responded that if he wants to work, he has to have qualifications inside the city.  If he does not have qualifications, then this makes it harder for him.

21. The Tribunal indicated that complementary protection obligations are concerned with intentional acts or omissions by third persons. The risk to him, as a result of the state of the Solomon Island economy, the cost-of-living pressures, economic insecurity, insufficient income to support a family in the future, would 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 the Solomon Islands. The applicant responded that back in the Solomon Islands there is plenty of unemployment. There are people with good backgrounds who are getting good jobs. If one does not have a good education background, then one cannot find work.  The applicant stated that he only completed [Grade]. This would be a problem for him when finding work.

22. The Tribunal indicated that significant harm had a specific definition, such as being subjected to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman or degrading treatment or punishment.  Not finding work in the Solomon Islands or earning a good living might not amount to significant harm. The applicant responded that if one lives in town, one can find work.  But if one lives in the village, it is better for that person to find work.

23. The Tribunal indicated that he applied for a visa a long time after he arrived in Australia.  He applied for a protection more than two years after arriving in Australia.   The Tribunal put to the applicant that this might be relevant to credibility in that he arrived here but did not apply for protection at the first available opportunity but instead reapplied for a further stay before applying for protection. This might show that he was wanting to stay here to work in Australia and not because of any fear of returning. The applicant responded that one of the reasons was because of his fear in returning and the other reason was because of the opportunity he has in Australia to earn money and to support some of his family and relatives and friends. The applicant was asked whether earning money was a strong motivation in wanting to stay in Australia. The applicant responded that it was a strong motivation.

24. The Tribunal indicated that he has raised significant claims about his tribe and the danger there and what has happened, but the Tribunal does not have any information that has been presented to it to indicate that the incidents have occurred.  The applicant stated that there was nothing else he wanted to add from what he said before about this.

25. The Tribunal asked if there was anything else the applicant wanted to add in support of his claims.  He stated he did not.

26. The Tribunal asked whether he had been heard at the hearing and had said everything he wanted to say.  He confirmed that he had.

    Analysis, assessment and findings

27. 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]

    [1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510

28. The Tribunal has considered the applicant’s application for a protection visa and his oral evidence provided to the Tribunal.  Having considered the applicant’s evidence before it, and halving considered the applicant’s oral evidence at the hearing, the Tribunal finds that the applicant has provided very little detail and evidence in support of his claims. The Tribunal found the applicant to be vague and uncertain in his oral evidence in answering questions about his claims.  The Tribunal found the applicant not to be credible in answering various questions about his claims at the hearing.

29. The applicant provided very little detail in his protection visa application about his claims.  The applicant was invited by the Department on 18 December 2023 under s 56 of the Act to provide further details about his claims. The applicant did not respond at all to this invitation and provided no further details or information about his claims.  On 1 March 2024, the Tribunal sent a letter to the applicant acknowledging that he had lodged his application for review.  In that letter it stated that, if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.  The applicant did not provide any material or written arguments in support of his claims. On 9 April 2024, a Hearing Invitation was sent to the applicant inviting him to attend the hearing and to provide all documents he intended to rely on in support of his case by 1 May 2024.  At the time of the hearing, the applicant did not provide any documents he intended to rely on in support of his case.

30. When it was put to the applicant that he provided very little detail about his claims in his protection visa application, when the Department invited him to provide further details, or at any time during the review stage, the applicant’s response was that the only evidence that he had was what he could say to the Tribunal and that any other evidence is hard for him to obtain. The Tribunal has considered this response.  However, it does not accept that the applicant has not had ample opportunity to provide further details or information in support of his claims after applying for his protection visa. 

31. Given that the applicant has had ample opportunity along the way since lodging his application to provide further information, details and evidence in support of his claims but has not; given his vagueness and uncertainty as to facts and circumstances of his claims at the hearing, given the lengthy delay in lodging his protection visa application in Australia (2 years and 2 months after last arriving in Australia); given the fact that he renewed his subclass 408 visa in Australia before lodging a protection visa; given that he gave evidence that part of his motivation in applying for a protection visa was because he could earn money in Australia to support his family back in the Solomon Islands; given credibility concerns about various aspects of his claims (which will be analysed below), the Tribunal finds the applicant’s claims of having suffered serious harm from members of the [Tribe 1] in the past because he was the son of a former [leader] or for any reasons as not credible.  The Tribunal also finds that his claims of having a fear that he will suffer serious harm from members of the [Tribe 1] in the reasonably foreseeable future were he to return because he is the son of a former [leader] or for any reasons, to also not be credible.

32. The applicant stated that he was the eldest son alive after his father died in 2010.  He stated that he was the son of a former [leader] of the village. However, when the Tribunal asked him questions about various matters that it would have expected [a son] of a [former leader] to be privy to, he was unable to provide a response.   He claimed that his village was receiving royalties from [Development 1] and that there has been a dispute about these royalties since before he was born.  Yet, he was unable to tell the Tribunal how much royalties his family were receiving.  He was unable to tell the Tribunal whether he was the head of the family or whether his sister was the head of the family. He said his [Relative A] was receiving the royalties as the head of the family. He stated that his village had gone to court but that a final decision had not been made yet. He was unable to tell the Tribunal why the court had not made a final decision on the land dispute. He gave evidence that he did not have any authority to sign any documents.  The Tribunal found the applicant was vague and unable to answer in specific details about matters that it would have expected the applicant to know as the [son] of a former [leader] as claimed. The Tribunal finds that this vagueness of answer and inability to provide any specifics about the royalties and dispute, after claiming that he is the son of a former [leader], to go to the credibility of his claims that he is the son of a former [leader] and that he is being targeted accordingly.

1. The Tribunal also raised its significant concerns that he had ample opportunity to provide information, further details and documents about the land dispute and claims arising from that dispute but did not provide anything to support his claims. The Tribunal does not accept the applicant’s response that all he had to give the Tribunal was his oral evidence and that, if he has the evidence, he would give it to the Tribunal.  The applicant’s own protection visa application states that all their ownership documents are with the [Authority 1], that the [Court 1] had ruled in their family’s favour, and that they had a lawyer who was acting on their behalf in this land matter. The applicant has not made any effort to seek copies of these documents from overseas that he says are in existence.  He has not made any effort to seek copies of documents from his lawyer overseas. The applicant has not provided anything to support these claims when, in his own written application, he claims that there are documents there to show that this land dispute and land ownership is in existence.   This lack of detail, information and documents, when he had every available opportunity to obtain them, goes to the credibility of his claims that there has been an ongoing land dispute between his tribe and the [Tribe 1] over [resource 1] reserves and royalties paid and that he is being targeted for being the son of a [former leader] to sign documents. 

2. This credibility finding is strengthened in that there are no news articles or media reports available which indicate that such attacks occurred in January 2021.  Again, the applicant has not provided any information, or evidence to indicate that such a major escalation occurred.  He was not able to provide a response when queried about this other than his previous responses stand.  The Tribunal finds that, if there was a major conflict between these two tribes that has resulted in many people being displaced and many houses burnt down, that there would be news reports or articles reporting on this.  The applicant did not provide any reports or evidence to suggest that this has occurred. There has not been anything presented before the Tribunal for it to find otherwise.

3. This finding is further strengthened by the inconsistency of the claims made by the applicant in that, in his written application, he stated that his entire village was burnt down and they all had to leave and be relocated.  However, at the hearing he stated that not everyone had moved but a majority of them moved away and that there were people still living in the village.  The Tribunal finds that the applicant has exaggerated his evidence to enhance his claims and finds that the claim that the village was attacked, and houses were burnt by the [Tribe 1], to be not credible.

4. The applicant was further inconsistent with his claims when he stated in his application that, as a result of a conflict between the two tribes, he suffered serious injuries and was sent to the hospital but was in a stable condition while, at the hearing, he stated that he had a fist fight with a few youths of the opposing village and that he suffered scratch marks, which were attended to by his friend’s mother who was a nurse, at their home.  He also gave evidence at the hearing that he took himself to the hospital but then was met by his friend who suggested that he go to his place to have his mother attend to the scratches.  The Tribunal finds that the applicant greatly exaggerated his claims in his protection visa application to enhance his claims overall and finds this exaggeration goes to the credibility of his claims.

5. The Tribunal also finds the applicant’s claims that the [Tribe 1] youth located the applicant in Honiara as not credible.  The applicant at no time provided this evidence in his protection visas application or at any time leading up to the hearing.  However, he raised these as a new claim at the hearing whereby he stated that the [Tribe 1] youth found him in Honiara and threatened him there and physically assaulted him.   The Tribunal put to the applicant that that these were new claims and he agreed that it was.  His only response was that this incident did occur. Given that this evidence was raised at a later stage, and the Tribunal has considered the applicant’s response, it does not accept his response at all that it did occur, when he had every available opportunity to provide details about this claim in his protection visa application leading up to the hearing itself.  Accordingly, the Tribunal does not find the applicant’s claims that he was targeted by [Tribe 1] youth or any members of [Tribe 1], as credible.  

6. The Tribunal has significant concerns about the delay of the applicant in applying for a protection visa in Australia.  The applicant stated at the hearing that he arrived in Australia in August 2021 and that he arrived on a subclass 408 visa.  The applicant then gave evidence that he renewed his visa (through his sponsor) for a further 6 to 9 months.  It was after this grant of a second visa that he subsequently applied for a protection visa on 26 October 2023, which was 2 years and 2 months from when he first arrived in Australia.

7. The Tribunal has considered the applicant’s response to the Tribunal’s concerns that the delay for applying for a protection visa might go to the credibility of his claims.  It has considered his response that one reason for his delay was because of his fear of returning and the other reason for his delay was because of the opportunity that he had to earn money in Australia and to support his family, relatives and friends back at home.

8. The Tribunal notes the following Migration and Refugee Division Guidelines on the Assessment of Credibility relating to delay in making an application for protection:

   36. The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear of persecution¹⁴ or significant harm.

   [14. Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346 per Heerey J at 349.]

   37. A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible.¹⁵ The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay. [15. Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346; Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998; Makouei v MIMA, unreported, Federal Court of Australia, Wilcox J, 6 February 1998, at 6.]

9. Given the evidence before it, and the applicant’s evidence that one major motivation for him remaining in Australia was to earn money to support his family, relatives and friends in the Solomon Islands, the Tribunal finds that 2 years and 2 months is a significant time to have waited to apply for protection given the applicant’s claims that he feared for his life back in the Solomon Islands.  Moreover, he applied for an extension of his visa (through his sponsor) to remain longer in Australia. Finally, he gave evidence that a major motivation to delaying in applying for a protection visa was to earn money in Australia to support his family, relatives and friends back at home.  Given all these together, the Tribunal finds that this delay, and his application to renew his work visa before applying for protection, goes to the genuineness of the applicant’s subjective fear of persecution or significant harm.  The Tribunal finds therefore, that this goes to the credibility of the applicant’s claims that he fears for his life or that he will suffer serious harm from members of the [Tribe 1] were he to return to the Solomon Islands in the reasonably foreseeable future.  The Tribunal finds on the evidence that the applicant’s sole motivation in applying for protection in Australia was because of his desire to earn an income and work in Australia and to support his family, relatives and friends in the Solomon Islands.

10. As a result of the credibility findings above, and the lack of evidence before it, the Tribunal does not accept that there has been any dispute between the [applicant’s] tribe and the [Tribe 1] over [resource 1] reserves and royalties paid by a company called [Development 1] related to these [resource 1] reserves.  It does not accept that there are [resource 1] reserves in [Village 1] and that royalties are paid to the tribe.  It does not accept that any dispute has occurred which resulted in the applicant’s village being partially or totally destroyed by fire. It does not accept that the applicant is a son of a [former leader] of the village. It does not accept that there have been any court proceedings relating to the applicant’s village’s disputed land ownership of it as it relates to [resource 1] reserves.  It does not accept that there has been any fight that has occurred between the applicant in his village and members of the [Tribe 1] that made the applicant run to Honiara to live there in safety. It does not accept that he was attacked in his village or in Honiara by members of the [Tribe 1]. It does not accept that the applicant is being targeted so that he can sign documents relating to land ownership. Given the findings above, it follows that the applicant’s claims that his [Relative A] and [relatives] were killed by members of the [Tribe 1] as not being credible.

11. The applicant raised the claim that he wished to remain in Australia to work, to earn an income and to support his family financially.

12. As discussed with the applicant at the hearing, general economic conditions in the Solomon Islands which may result in economic disadvantage, including cost of living pressures, economic insecurity, insufficient income to support one’s family, the need to support one’s family financially do not amount to persecution. The Tribunal has considered the applicant’s response that he is being targeted as a family member and that if he wants to work, he has to have qualifications inside the city. If he does not have qualifications, then this will make it harder for him. The Tribunal has already made findings that it does not accept that he is being targeted as a family member of a [former leader].  It also finds that 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.[2] The economic conditions faced by the applicant and the lack of qualifications would apply to all citizens in the Solomon Islands.

    [2] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429

13. The Tribunal finds that the harm feared by the applicant, namely that he will not be able to earn a similar income or any income in the Solomon Islands or access work opportunities in the Solomon Islands compared to Australia, 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.

14. After considering all the applicant’s claims above, both individually and cumulatively, for the reasons set out above, the Tribunal finds that there is no real chance that, if the applicant were to return to the Solomon Islands, he will suffer serious harm for reasons of race, religion, nationality, political opinion or membership of a particular social group (therefore  s 5J(1)(b) of the Act criteria has not been met). Looking into the reasonably foreseeable future, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined under s 5(J) of the Act.  Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

15. As the Tribunal has found the applicant to not be a refugee, 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, there is a real risk he will suffer significant harm. The Tribunal provided an explanation of the complimentary protection criteria to the applicant at the start of the hearing as well as the meaning of significant harm. 

16. The Tribunal finds that the economic harm feared by the applicant, namely lack of work to earn an income, economic insecurity, insufficient income to support oneself or one’s family, lack of education 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’.[3] 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 regardless that the applicant has concerns that his [Grade] education will make it harder for him to find work.  As such, the Tribunal finds that the claimed harm does not amount to significant harm.

    [3] 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]).

    CONCLUSION

17. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

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

19. 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

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

Clyde Cosentino
Member
-  Extract from Migration Act 1958

ATTACHMENT 

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.

…