2403748 (Refugee)

[2024] AATA 3371

2403748 (Refugee) [2024] AATA 3371 (11 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2403748

COUNTRY OF REFERENCE:                   Solomon Islands

MEMBER:Clyde Cosentino

DATE:11 July 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 11 July 2024 at 2:58pm

CATCHWORDS

REFUGEE – Protection Visa – Solomon Islands – land dispute issues – a victim of a land dispute – father is influential in the community – family and his village are safe – wishes to remain longer in Australia to support his family financially – there is effective state protection available to the applicant – delay in applying for protection in Australia – applicant does not have a well-founded fear of 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 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 12 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. On [date November] 2021, the applicant arrived in Australia from the Solomon Islands on a Seasonal Worker (Pacific Labour Scheme) visa, as indicated in the applicant’s protection visa application.

4. On 12 October 2023, the applicant lodged an application for a protection visa with the Department of Home Affairs (the department).

5. On 9 February 2024, a delegate of the Minister for Home Affairs refused the applicant’s Protection visa application under s 65 of the Migration Act 1958 (Cth) (the Act).

6. On 29 February 2024, the applicant lodged an application for review at the Tribunal seeking review of the delegate’s decision to refuse the applicant a protection visa. 

7. The applicant appeared before the Tribunal on 23 April 2024 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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.

    Receiving country

14. The applicant provided copies of the biodata page of his Solomon Island passport as part of his protection visa application. 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 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. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. 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

    Protection visa application

16. The applicant provides details in his protection visa application as follows.

17. The applicant, male, was born in [the Solomon] Islands in [year]. He states he has never married.

18. He states that he is in contact with relatives outside of Australia.  He is in frequent contact with his family and relatives back at home in the Solomon Islands almost every day.  They chat through [social media].

19. He states that he resided at [Village 1], [City 1] from [birth] until [date November] 2021.

20. He states that he was unemployed in the Solomon Islands from [birth] to [date November] 2021.

21. He states that he completed high school at [a] School in [City 1].  His parents were financially supporting him. He states he undertook a [course] at [a] University from February 2016 until December 2018 but then withdrew.

22. He claims he left his country because of ongoing land issues that have not been solved for generations. His family are heavily involved with it.  His father is an educated person. He states that, out of all his siblings, he is mostly involved with the land issue because he is the oldest sibling. He states that there has been many times that fights have broken out between his family and the “opposing party”.

23. He states that the Pacific Labour Scheme was a perfect opportunity to get away from all the disputes.  Therefore, he applied for the visa and was granted it. 

24. He states that, seeing his parents getting old and struggling to make ends meet – let alone build a house for themselves – has led to his decision to apply for a protection visa in Australia.

25. He states that he has received both verbal and physical harm in the Solomon Islands. The verbal threats were indirect or direct threats to him. The dispute is an ongoing issue which leads to arguments which, in turn, leads to fights and destruction of property.

26. He states that they have tried to solve the land dispute issues with the opposing party but the matter would not resolve itself. The two parties have never reached common ground.  There was never a decision as to who the real owners are of the land in dispute.

27. He states that he has not tried to move to another part of the country as he is a student who has not completed his studies.  He does not have the qualifications and work experience needed to survive out there. Job opportunities are also very few in his country.

28. He states that if he returns now there will be nothing that has changed.  The fights will continue. Both sides are still fighting each other and destroying properties and threatening the lives of their children and peace in the community.

29. The applicant claims that being in Australia now makes him a target back at home because of the land dispute issue and because the opposing side is jealous.  He believes that he will not just be physically harmed but that “people” will turn to black magic to hurt their enemies and his village is known for that.

30. The applicant claims that he believes the authorities of his country can and will protect him if he returned. He states that the authorities of his country can and will protect him “definitely” but “not for long”. He states that the “police are more than capable to protect [him]” but he does not know for how long. He states that “crazy people take the law into their own hands” and do “unimaginable stuff”.

31. The applicant states that he can relocate to another part of the country but he does not know how long he could survive there, let alone protect himself. He states that he could relocate to another province but he is unsure how he would survive without a job and without family.

32. On 14 December 2023, the department wrote to the applicant seeking further information to help the department to assess the application for a protection visa. In that letter, the department asked the applicant to respond to a number of questions.

33. On 23 December 2023, the department received the applicant’s response to its letter. A summary of the applicant’s response is as follows:

    a.The applicant has many family members involved in the dispute as the land dispute involves land owned by the whole tribe and not individuals. The operation of [Company 1] as been the main cause of the dispute. There are many family members involved but there are three main individuals who are heavily involved on behalf of the family – [Mr A], [Mr B] and [Mr C]. Mr [B] and [Mr C] are presently living in the applicant’s village of [Village 1]. Mr [A] lives at [another] Village which is close to the mine site.  The applicant emphasises again that the whole tribe is part of the dispute and not just these three people.

    b.The opposing party is made up of an entire tribe of people. The opposing party is made up of people coming from two tribes in neighbouring villages.  They all go to the same Church and the children all go to the same schools but the fighting continues.

    c.Part of the land in dispute is occupied by the mining operations. The applicant’s tribe is in possession of the land at the moment. The other tribe is disputing this. The dispute comes down to royalty payments. The other tribe were also in receipt of royalty payments but were not the main tribe.

    d.The applicant’s tribe experience threats from drunken men from the other tribe. Normally they would get drunk and drive past their village and swear and throw stones at their houses. They also threaten the women, children and young men of the applicant’s village. They pick on certain children whose parents “are influential”. The applicant was one of those children who were “picked on”. The applicant remembers growing up and receiving threats in school and in the community. The area where the applicant lived is called [Area 1] and is known for violence, killings and other “bad things”.

    e.The whole tribe is affected by the dispute. There are certain families and individuals who are main targets. The applicant remembers growing up receiving these threats. The applicant’s father became an influential figure within the tribe.  As a result, this has placed the applicant in a bad situation by way of association to his father.  He remembers one occasion where the opposing party threw stones at his home.  Most of his family had to run for their lives.  These men were also holding bush knives and other weapons. The applicant’s house was a main target.

    f.The applicant was studying [a course] for two years in the Solomon Islands but decided to come to Australia before finishing his course so he had to withdraw from it.

    g.The applicant remembers a time back in 2015 when his family tried to resolve the land issue with the other side. Chiefs and elders from nearby villages were called to come and listen while the tribes talked.  The result of these discussions was that some of the men of the opposing tribe became angry and a fight ensued.  The applicant stated that it was clear from the talks that his tribe were the rightful owner of the land but the opposing side did not agree nor did they accept the decision.

    h.The opposing party continue to terrorise and threaten his tribe. The applicant and his tribe have tried on multiple occasions to resolve the issue in their cultural way but it never works out. He stated that most of the time the people from the other tribe do not turn up to the gatherings or they show hostility to new meeting times being set down.

    i.The applicant’s family have tried to involve the police but they do not turn up. The applicant stated that he is a victim of a land dispute between his family tribe and another tribe over ownership of the land. This issue started when [Company 1] started mining operations.  The issue is about royalty payments and which tribe is the main tribe to receive these payments. As the only male in his family, he has experienced a lot.

    j.He states that, before coming to Australia, a group of men from the other tribe came to his village and started throwing stones at the houses in the applicant’s village. He states that his house was one of the main targets. He states that if it was not for the police, the whole village could have burnt down. The applicant stated that he could have been killed if it was not for the police who turned up quickly. He states that this was one of the scariest moments of his life.

34. The applicant also provided copies of four photographs, described clearly by the delegate in the delegate’s decision as:

    a.Photographic image of a broken window

    b.Photographic image of broken glass and surrounds from the broken window

    c.Photographic image of broken glass and surrounds from the broken window

    d.Photographic image of the surrounds area to the broken window

35. On 9 February 2024, the department refused the applicant’s Protection visa application. The department also added in its decision that the applicant did not address specific questions that were asked of the applicant in the letter dated 23 December 2023.

36. On 29 February 2024, the applicant lodged an application for review with the Tribunal.  The applicant also attached a copy of the delegate’s decision to the review application.

37. The applicant also provided a statement to his application for review lodged on 29 February 2024.  The statement can be summaries as follows.

    a.The applicant stated that he believes he was not given enough time to provide substantial details and evidence to support his claims.

    b.He states that he was still in contact with his relatives back at home to provide him with the necessary supporting documents when the department refusal came in. He states that it he was in the process of obtaining documents. He simply needed a little more time. He contacted his “cousin brother” who is a police officer and they are working in getting the necessary documents.

    c.He asked the Tribunal for further time to obtain the necessary documents. He states that it is not easy to do as most of the dispute is not recorded in writing. His “cousin brother’ is working on documenting the evidence now.  It has taken time because he has had to interview relatives and village elders and compile his findings in a document before sending it over.

    d.He states that he does not want to return to the Solomon Islands as there is nothing for him there.  He loves it in Australia and wants to live here.

    Tribunal hearing

38. The applicant appeared before the Tribunal on 22 April 2024 to give oral evidence and present arguments. The applicant was unrepresented in relation to the review. The applicant did not provide further documents to the Tribunal at the hearing.  The applicant did not request an interpreter for the hearing.  The applicant was asked at the hearing if he required an interpreter and he stated unequivocally that he did not. The Tribunal was satisfied throughout the entire hearing that the applicant understood fully the process of the hearing and the questions that were asked by the Tribunal.  The Tribunal found the applicant to be very capable and attentive in responding to the questions and providing comments and responses to those questions which showed that he was engaging with the questions. 

39. 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. 

40. The applicant provided oral evidence at the hearing as follows.

41. He recalled the protection visa application lodged 12 October 2023 and the claims that he made in that application.  He confirmed that he signed the application and that everything in that application was true and correct. He confirmed that the claims in his protection visa application were the claims he wanted to raise at the hearing.  He confirmed that he did not have any new claims to raise at the hearing. He completed the protection visa on his own without any assistance.

42. When asked if he had any further documents that he wanted to provide to the Tribunal he said he did not.  He stated that he thought that there was too short a time to provide further documents.  The Tribunal indicated to him that it would discuss this with him later in the hearing.  He was okay with that.

43. He stated that he was living at an address in the farming area of [a town].

44. He stated that, prior to coming to Australia, he lived at [a] Campus, [a] University, [City 1], for three years while studying there. Prior to living at this address, he lived at [Village 1]. He had lived there all his life except for the three years he was at university. [Village 1] is the village where his family has lived for generations. He stated that approximately [number] people live in the village. His family are very well known in this village. His grandfather was one of the chiefs in the village. There were [number] chiefs at the time. His grandfather is now deceased. 

1. The applicant stated that his father organises the communities together. His father is a well-known person in that village. His family are scattered around in other villages as well. He provided examples of where other family members were living - [different villages]. These are some of the other villages that his extended family live at.  The applicant has not visited these villages. However, his family members living at these other villages know the applicant and the applicant sees them as family.

2. The applicant stated that his mother, father and all his siblings still live together at [Village 1]. He has uncles, aunts and cousins who also live in [Village 1].

3. The Tribunal asked whether the applicant’s immediate family were working. He stated that his father is [working]. He is respected in his profession there. He stated that six (6) people live in his parent’s home. It is a two-bedroom home and is owned by his father. The house has been in his father’s family for a long time. The applicant lived most of his life at this home in [Village 1].

4. The Tribunal asked whether he remained in contact with his family. The applicant stated that he did.  They spoke to each other at least two to three times per week.  The frequency of the calls depended on how much data his parent’s mobile had at the time.

5. The Tribunal asked what level of education he achieved in the Solomon Islands. He stated that he completed two years of a three-year course in a [course]. He hoped to finish the course in the future. His father paid for the course at the University.  His father was also paying for his accommodation at the university as well. He stated that the university would allow him to come back to finish his course if he chose to do so. The university would also allow him to live on campus.  All this, however, depended on funding and whether he could afford to pay for it or not.  

6. The applicant confirmed that he was unemployed in Solomon Islands. 

7. He recalled coming to Australia on his visa in November 2021. He stated that he arrived on a Seasonal Worker visa. He stated that this visa was for two years and that it expired on [date] October 2023. He stated that this was one of the reasons why he applied for a protection visa, that is, because the Seasonal Worker visa was about to expire.  He also wanted to stay in Australia because he was happy here. He had work in Australia and he could earn an income. He stated that if he went back to the Solomon Islands it will not be safe for him. He stated that there was nothing that was good for him there.

8. The Tribunal indicated to the applicant that he had provided oral evidence that he had applied for a protection visa at the end of his Seasonal Worker’s visa.  It indicated to the applicant that he had applied for a protection visa nearly two years after first arriving from the Solomon Islands. The applicant was asked why he did not apply at the earliest opportunity after first arriving in Australia. The applicant stated that he had the opportunity to do so but that he wanted to live in Australia longer. He had eventually applied for a protection visa to stay longer in Australia.

9. The Tribunal again asked why he did not apply for protection at the earliest possible opportunity after arriving in Australia when he had stated that he feared that he left the Solomon Islands in fear of being harmed.  The applicant stated that he had tried to get more information in how to apply for a protection visa.  He had tried to get ideas about this. This was the reason why he did not apply at the earliest possible opportunity.

10. The Tribunal then asked the applicant if it could refer to his claims made in his protection visa application. The applicant was happy to do this.

11. The Tribunal asked about the applicant’s communication with his family back in [Village 1] and what he talked to them about when he speaks to them.  He stated that he speaks to them about his work in Australia and how happy he is here. He states that he enjoys living here. He talks about general family things together. He speaks mostly with his mother and father and siblings.

12. The Tribunal asked what his family generally talk to him about.  He stated that his family talk to him about how they are living and about what is happening in the village. They talk to him about the tribal issues and other matters of interest. They would talk with the applicant for about 30 minutes at a time depending on what data they have on their mobile.

13. The Tribunal asked whether his family were safe at this time. The applicant stated that they were safe at this time. His father has lived in [Village 1] all his life.  His mother has lived in the same village all her life. All siblings have lived there all their lives.

14. The applicant confirmed that all his family have lived in the village all their lives and always throughout the dispute that has occurred between the disputing tribes.  He stated that his family tribe was a large tribe of about [number] people. His tribe live in the village of [Village 1].  His family tribe is called the [Tribe 1] tribe.  His family tribe was named after his grandfather.

15. The tribe disputing the [Tribe 1] tribe’s ownership of the land is called the [Tribe 2] tribe.  They live in another village called [Village 2] village. This village is about three kilometres from [Village 1]. [Village 2] village has about [number] people living in it. It is a smaller village than [Village 1]. The [Tribe 2] family tribe have about [number] people in it. It is a bigger tribe than the applicant’s tribe. The [Tribe 2] tribe has been disputing the [Tribe 1] tribes’ claims of ownership over a particular piece of land for generations.

16. The Tribunal asked how long the land dispute had been running for. The applicant stated that the land dispute had been going on between the two tribes for many years.  The dispute has continued for as long as he can remember. He stated that the two sides had always been able to talk about things between them.  The dispute intensified, however, when the gold mining company arrived in [year]. The antagonism between the two sides has continued to this day. 

17. The applicant states that the Pacific Labour Scheme was a perfect opportunity to get away from all the disputes in his village.  Therefore, he applied for the visa and was granted it.  The Tribunal asked if he wanted to say anything more to this.  The applicant stated he did not.

18. The Tribunal indicated to the applicant that he had provided evidence that because his parents were getting old and struggling to make ends meet and were struggling to build a house for themselves that this had led to his decision to apply for a protection visa in Australia. The applicant stated that his father was retired. He wanted to help his family financially from Australia.  

19. The Tribunal indicated that this might be inconsistent with what he previously claimed, namely that his father had a 2-bedroom house, supported his family and supported the applicant at university.  The applicant responded that his father is now retired.  Therefore, this will make it harder for him now. His father does not receive any government pension.

20. The applicant confirmed again that the [Tribe 2] tribe was the other tribe who was claiming rights over the disputed land. He confirmed that these arguments between the two tribes have intensified and been ongoing since the time when the gold mining company came and took mining rights over the land in the [year].

21. The Tribunal asked whether there had been a court case that had decided who owns the land.  The applicant stated there had been.  He stated that his tribe has been to court about five years before he came to Australia. He recalls that it was a court hearing concerning customary land disputes. His family tribe had brought this matter to the court. The matter did not go ahead, however, because the other tribe did not attend. The court postponed the hearing indefinitely so it could wait for the other side to attend. There has never been a court decision about the land dispute previously or since.

22. The Tribunal asked if there had been any agreement made that evidenced that the land was owned by his family tribe. The applicant stated that there had been.  It was made a long time ago. The leading chiefs had signed off on it.  But it has never gone to court for enforcement.  He stated that the ownership agreement over the land needed to be stamped by the authorities in [City 1] so that it can be enforced.  But this will not happen until the [Tribe 2] tribe comes to the table and accepts this. The [Tribe 2] tribe has not wanted to accept this, so the dispute remains ongoing and the agreement unenforceable.

23. The Tribunal indicated that he had said that he did not want to move to another part of the country because he was a student who did not have qualifications or work experience to survive.  However, he undertook a [course] at [a] University from February 2016 until December 2018 but then withdrew because opportunity came up to come to Australia.  The Tribunal indicated that he has shown that he has shown an ability to study to be a professional.  The applicant stated that the financial part of this was difficult.  It is not like a casual job.  He needs the money to help him with his studies. He does not think his father can fund the rest of the applicant’s studies as his father is getting old now.

24. The Tribunal indicated that the applicant had claimed in writing that if he returns now nothing will have changed, the fights will continue, and that both sides are still fighting each other and destroying properties and threatening the lives of their children and peace in the community. The applicant responded that, when he lived in his village, their was bullying and throwing of stones and similar things.  He stated that this occurred close to his family members.  It was not safe for him there.

25. The Tribunal put to the applicant that he had said that it appears that his village is safe, that his family had been living there for a generation and that he had lived there all his life.  He had stated that he contacts his family regularly and they have not mentioned how bad it is nor that they had been harmed at all and that they continue to live there. The applicant was asked for his response to this.  The applicant responded that the Solomon Island police patrol regularly there.  This helps the situation a lot.  They constantly patrol the two disputing villages.  This is because they know about the dispute. The police have been doing this for a long time.  It seems to have worked – to keep the tension at bay. The [Tribe 2] tribe are being prevented from doing harm to the [Tribe 1] tribe because of the police.

26. The Tribunal asked the applicant why he claimed that he would be targeted if he returned and why he raised black magic as a claim. The applicant responded that the other side uses things like witchcraft to kill people in his village. The Tribunal asked how they have used witchcraft to kill people in his village.  The applicant stated that there has been sickness everywhere in the village.   He stated that people are dying because of witchcraft. The Tribunal indicated that he has made a connection between the sickness in the village and the [Tribe 2] tribe using witchcraft to kill people in his village. The Tribunal indicated that the applicant had not provided any evidence to support this claim.  The Tribunal indicated that it might find it hard to believe that people have died because of sickness due to the other side using witchcraft, given that sickness occurs as a matter of course.   The Tribunal indicated that it might find it hard to believe that witchcraft was the reason for people getting ill in his village unless the applicant had something to present to the Tribunal that showed that there was a connection to witchcraft.  The applicant did not provide any response to this.

27. The Tribunal indicated that the applicant had stated in his written claims that the authorities of his country can and will protect him. It indicated that the applicant claimed that he believes the authorities of his country can and will protect him if he returned. He states that the authorities of his country can and will protect him “definitely” but “not for long”. It indicated that he stated that the “police are more than capable to protect [him]” but he does not know for how long. It indicated that he stated that “crazy people take the law into their own hands” and do “unimaginable stuff”. The Tribunal indicated that he had stated that the authorities of his country will be able to protect him if he returned. The Tribunal asked the applicant why he thought the authorities cannot protect him long term.  The applicant responded that the police will not come to help in the long term.  He stated that the fighting is worsening, and they cannot stop it.

28. The Tribunal asked the applicant why he could not relocate to other parts of the country. He had shown that he can undertake studies to be a professional.  It asked why he could not finish the course he had almost completed in the Solomon Islands.  The applicant responded that it will be difficult for him now. He stated that in Australia he is free. He cannot move freely in the Solomon Islands.  

29. The Tribunal then referred to the statement he provided to the department on 23 December 2023.  The applicant’s response to these questions at the hearing were as follows:

    a.The land in dispute was about 2 hectares and there was gold being mined underneath it.

    b.The land is owned by his family tribe who have an agreement over the land but not stamped by the authorities.

    c.The disputing tribe is the [Tribe 2] tribe.

    d.There are four lead people in charge of dealing with the disputed land in question.  They are [Mr A], [Mr B], [Mr C] and the applicant’s father.  The continue to be the lead people in the land dispute.  They have been the lead people for at least 10 years.

    e.There is one opposing tribe involved, namely the [Tribe 2] tribe.

    f.Part of the land in dispute is mined by the mining company. The applicant’s family tribe are currently in possession of the land.  The dispute all comes down to royalty payments.  The [Tribe 2] tribe is also in receipt of royalty payments but the applicant’s family tribe is the main recipient of royalties, with between 70 to 80 pe cent of royalties going to his family tribe members.  The [Tribe 2] tribe receives between 20 to 30 per cent of the royalties. This arrangement has been in place for a long time and ever since the gold mine company started operations on the land.   [Company 1] is the company at the centre of the dispute. The applicant’s family tribe received about $700,000 (Solomon Island) per year. The money is given to the tribal family heads and then is subsequently distributed to the other tribal family members accordingly. The applicant’s father, as one of the lead persons in the family tribe, receives more royalties than others.  He receives about $6000 to $7000 (Solomon Islands) a year in royalties.  As a [occupation], he was also earning about $20,000 (Solomon Islands) per year.

    g.The applicant did not move outside his village too much as the verbal threats were directed at him and his family members.

    h.The police and the law are not strong in his particular area. The [Tribe 2] tribal members come past and do whatever they like. The police come late to the scene. If things happen, the police do not help much. 

    i.In response to the Tribunal’s question of why he believed that he fears that he will be harmed because of his association with his father, the applicant stated that, when the company would pay money, certain members of the disputing party would come and threaten certain families. They would come and throw stones and swear.  They were stopped each time due to the police protection. However, if the police did not arrive in time, they would do it again.

    j.In response to the Tribunal’s question as to why he did not think he and his family have not been harmed the applicant responded because the police regularly patrol the area. He stated that if they did not do this, things would be different.

    k.The applicant stated that he remembered a time back in 2015 when his family tried to resolve the land issue with the other side. Chiefs and elders from nearby villages were called to come and listen while the tribes talked.  The end result of these discussions was that some of the men of the opposing tribe became angry and a fight ensued.  The applicant stated that it was clear from the talks that his tribe were the rightful owner of the land but the opposing side did not agree nor did they accept the decision. He recalls that there has been four times from the [year] to 2015 where the tribes have come together but were not able to go away with an agreement.  They have not come together again since 2015. 

30. The Tribunal indicated that the applicant stated in his written statement that he tried to involve them but they did not show up.  However, later in his statement he indicated that the police came and saved the village from being burnt down because they turned up in quick time.  The Tribunal put to the applicant that there appeared to be a significant contradiction here.  The applicant responded that the police do not turn up all the time when needed.   

31. The applicant stated that the situation is crazy all the time.  There is fighting that is involved. The disputing tribe want to fight.

32. The Tribunal indicated that he had provided evidence that his cousin was in the police force.  The Tribunal asked the applicant whether this helped the situation back in his village. The applicant stated that he can contact his cousin in the police force when there are problems. It is easy to call him and his team of police officers.  It can take one and a half hours for them to turn up once they are called.  He is always there to help them. His cousin is part of a police team. He works in [City 1]. He brings the team from [City 1].

33. The Tribunal asked why the four photographs he provided to the department were relevant.  The applicant responded that these photographs were taken when they received royalty payments and were taken about three years ago. They were photos of the house.

34. The Tribunal referred to the applicant’s statement to his review application lodged on 29 February 2024. Most notably, the Tribunal referred to the applicant’s statement that he did not have enough time to obtain the necessary supporting documents back in the Solomon Islands, and that he was seeking further time to obtain these documents.  The Tribunal indicated that he had just under two years from when he arrived in Australia to when he lodged a protection visa to obtain all the necessary evidence needed to support his claims but did not do this.  The Tribunal indicated that he had from 12 October 2023 (the date of lodgement of his protection visa application) until the 23 April 2024 (the day of the hearing) to provide further evidence, which was a further six (6) months to provide supporting evidence but has not provided anything further.  The Tribunal indicated that it appeared that he had enough time to provide supporting evidence to the Tribunal which has not come about. It indicated that the Tribunal might be of the view that he had more than enough time to obtain whatever supporting evidence he needed.  The applicant responded that he had to call his father and cousin to write up the documents.  The Tribunal again indicated that he had two and a half years from when he first arrived to provide supporting documents but that nothing had been forthcoming. It indicated that it might be the case that the Tribunal believed that the applicant had enough time to provide supporting documents and evidence.   The applicant did not provide a response to this.

1. The Tribunal indicated that his family was working and living in the village they have lived at for a long time and since he departed for Australia.  They are a large family tribe.  The police and surrounding communities have helped his family tribe whenever there has been problems with the disputing family tribe.  The applicant confirmed that communities and the police have been helping his tribal family for many years.

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

3. It put to him country information from the Asian Development Bank in 2015 which explained the land ownership process and customary ownership recognised under Solomon Island laws. It indicated that the applicant’s account of his family tribe’s land under dispute generally correlated with the country information at hand. 

4. The Tribunal indicated that there was an independent and capable judiciary in the Solomon Islands. It was reported 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 Tribunal pointed to further country information that the government generally respected judicial independence and impartiality. The applicant responded that the communities used to reach agreement through tribal discussions.  The culture was to undertake a process within the tribes themselves to reach an agreement.  If they then agree, they will then move to the court process who are capable. However, customarily, parties need to agree before moving to the courts for final stamping of the agreement.

5. The Tribunal indicated that country information indicated that there were few major threats to physical security though crime remains a problem in some areas.  The police force had been entirely rebuilt and there was reliable security aid from international partners. The applicant stated that the police were doing well. He stated that they did well in some areas but they do not spend a lot of time in certain areas. While the police go out to the villages, they will then return to headquarters in the main town.

6. The Tribunal indicated that, on country information, there was legal aid that could be obtained for civil matters, and other legal matters as well.  The applicant stated that the tribe would use the money from royalties to pay for court matters.  It was very expensive to go to court. The applicant’s family tribe will not go to court unless the disputing tribe agrees to go.

7. The Tribunal put to the applicant that the Solomon Islands had a Penal Code within the legal system which provides for a range of offences as classified as unlawful, including assault and violent crimes, and that serious offences could amount to imprisonment. The applicant stated that it was all about how the police catch those who are offending.  If they are close to the village, they can get the information quickly and then charge people.  If there are no contacts around, it is harder for the police to catch them.

8. The Tribunal indicated that country information might suggest that there is effective protection by the Solomon Island police and associated authorities and that this is available to the applicant if he returned. Country information might suggest that state protection is available to the applicant if he returned to the Solomon Islands. The applicant stated this was 50 - 50 situation. The police can provide security but not all the time.  They are not always there to protect.  This becomes harder in rural areas.

9. The Tribunal indicated that general economic conditions in the Solomon Islands which may result in economic disadvantage, may not amount to persecution. It indicated that 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. Cost of living pressures, economic insecurity, insufficient income to support one’s family, supporting one’s family financially, all would not appear to be directed at the applicant 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 there are now more people in the Solomon Islands but there are fewer jobs.  Agriculture is not good either.

10. The Tribunal indicated that complementary protection obligations are concerned with intentional acts or omissions by third persons. The risk to him 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 stated that there were less jobs available to more people. There are not a lot of companies and there is low business. Unemployment is high.  Finding jobs is hard.  

11. The Tribunal indicated that he had stated that this dispute has been ongoing for many generations.  He arrived in Australia in November 2021. He did not apply for a protection visa until October 2023 – nearly 2 years after arriving in Australia.  This significant delay in applying for a protection visa and not applying at the earliest possible opportunity might go towards the genuineness or credibility of his claims in part or as a whole or indicate that the land dispute may not be as serious as he claims.  The applicant stated that it is hard to find the evidence to support the application.  He has tried to contact home to obtain further evidence. That is why he keeps delaying in providing evidence. He has been trying to get evidence since first arriving in Australia.

12. The Tribunal indicated that he stated he applied for protection at the expiry of his seasonal worker visa.  This might suggest that he applied for a protection visa to simply stay in Australia and not because of any fear of harm if he returned. The applicant stated that, if he returns, he will not be safe. If the problem arises, he will be unable to protect his family.  He wants to live in Australia.  

13. The Tribunal indicated that he mentioned in his application to the department that he saw his parents getting old and struggling to make ends meet – let alone build a house for themselves – and that this has led to his decision to apply for a protection visa in Australia. The Tribunal indicated that it might take from this that his motivation for lodging a protection visa is so he can remain in Australia to work and financially support his family back home in the Solomon Islands.  The applicant responded that he wanted to support them so they have a better life.  He has a job here now.  He can financially support them and help them survive.  All of his siblings are growing up and they depend on him to support them.

14. The Tribunal asked if there was anything else he might want to add in support of his protection visa.  The applicant responded that he had been living in Australia and working here. He would love to live here.  He applied for his protection visa to live a bit longer here. He does not want to go back and talk about family problems with his uncles and father.  He does not want to be a part of this.

    Post-hearing submissions

15. The Tribunal indicated that it had considered his request at the hearing for more time to provide further evidence, given the facts before it.  The Tribunal granted a further 7 more days for him to provide any further evidence from the date of the hearing. The Tribunal indicated that, after that time, it would then consider all evidence provided before it.  The applicant acknowledged that he understood this. The Tribunal notes that, at the time of decision, no further submissions or evidence was provided by the applicant in support of his claims. The Tribunal will therefore consider all the material that it has before it in making is decision.

    Credibility, Assessment and Findings

16. The applicant has provided written and oral evidence of his claims to the department and to the Tribunal.  The applicant has provided clear evidence and particulars of aspects of the land dispute and the parties to the dispute. The Tribunal is satisfied with certain aspects of the applicant’s facts relating to the land dispute, based on the consistency of the evidence provided by the applicant relating to these particular aspects of his claim.  However, based on evidence provided by the applicant as well as independent country information before it, the Tribunal does not accept other aspects of the applicant’s claims nor does it accept that there is a real chance that the applicant will suffer serious harm for a refugee related reason, in the reasonably foreseeable future, were he to return to the Solomon Islands.    

17. On the written and oral evidence provided by the applicant, the Tribunal accepts the following:

    ·That there has been an ongoing customary land dispute between his tribal family tribe ([Tribe 1] family tribe) in [Village 1], [City 1] and the neighbouring [Tribe 2] tribe from [Village 2] or [Village 2] village (the Tribunal will refer to the village name as [Village 2] village).  The customary land dispute between the two tribes has been ongoing since [year], ever since [Company 1] started mining operations on the disputed piece of land and has paid mining royalties to the [Tribe 1] tribal family since that time. 

    ·That the disputed piece of land is about two hectares in size and that the [Tribe 1] family tribe have possession, and an unenforceable legal agreement, over the disputed land.  The legal agreement is still awaiting to be finally stamped and approved by the authorities in [City 1] but has not been done so until the [Tribe 2] tribe agree to sign a consent for an enforceable agreement.

    ·That the agreed distribution of royalty payments made between [Company 1] and the [Tribe 1] family tribe is between 70 to 80 per cent of the total royalty payments, with the remainder 20 to 30 per cent of the total royalty payments going to the [Tribe 2] tribe. It accepts on the evidence that this payment agreement has been in place since [year] and that both tribes have accepted the payments throughout this time.

    ·That on four different occasions between [year] and 2015, a customary conciliation has been arranged with chiefs and elders from nearby villages in an attempt to facilitate an agreement between the two disputing tribes, but no agreed resolution has been able to be achieved due to the lack of consent to an agreement from the [Tribe 2] tribe.  

    ·That the [Tribe 1] family tribe consists of approximately [number] family members and that all these family members receive benefits of [Company 1] royalties. 

    ·That the applicant’s father is one of a few main members of the [Tribe 1] tribe who facilitate the royalty payments to other family members and that his father receives a larger proportion of the royalty payments due to the responsibility of his position within the [Tribe 1] tribal family.

    ·That [Village 1] is where the [Tribe 1] family tribe have lived for generations and that the village’s population is approximately [number] people.

    ·That the applicant has lived all his life in [Village 1], except for the last three years before coming to Australia, where he resided at [a] Campus, [a] University, [City 1], while studying in a three-year [course] (of which he has completed two years).

    ·That his father, mother and siblings have lived at [Village 1] all their lives and always throughout the dispute that has occurred between the [Tribe 1] family tribe and the [Tribe 2] family tribe. The applicant’s uncles, aunts and cousins also live in [Village 1].

    ·The applicant’s father is a respected [person] in the village (now retired).

    ·That the applicant’s father owns his home in [Village 1] and that 6 members of the applicant’s family live in this house, and that this same house has been in his father’s family for a long time.

    ·That his family were safe in [Village 1] at the time of the hearing.

    ·That the applicant is in frequent contact with his family members in [Village 1] two to three times per week.

    ·That the applicant also has family members residing in [villages].

18. In relation to the claims that there has been ongoing and intensifying violence between the [Tribe 2] family tribe and the [Tribe 1] family tribe, the Tribunal has considered the applicant claims that there has been drunken violence perpetrated by [Tribe 2] tribe members, stones being thrown at houses and at villagers by [Tribe 2] family tribe members, that [Tribe 1] family members have been sworn at, that women, children and young men in [Village 1] have been threatened by [Tribe 2] family members, that the [Village 1] was close to being burnt down on one occasion, that the applicant was “picked on” when growing up because he was the son of parents who “are influential”, that he lived in an area called “[Area 1]” which is known for violence and killings and “other bad things”, that the whole tribe is effected by the dispute and that certain family members, like his father, are targets of this violence because they are influential figures in the family tribe. He claims that his family home has been a main target from [Tribe 2] family members. He also claims that he and his siblings have a “clear target on [their] backs” because of their father “being an influential figure in [their] tribe”. 

19. Given the evidence before it, the Tribunal is willing to accept that there have been occasions since [year] (when the Royalties agreement was put in place) that tense disputes have occurred between [Tribe 1] family tribal members and [Tribe 2] family tribal members and that this has resulted in violent flair ups from time to time such as stone throwing at villagers and homes, swearing, drunken violence and even the home of the applicant having windows smashed on one occasion in recent times (for the purposes of the decision the Tribunal is willing to accept that the photographs presented as evidence were taken of the family home where windows were smashed in about 2021).  However, it does not accept on the evidence that this violence has intensified and been ongoing (as claimed by the applicant) nor that the applicant’s family have been targeted because his father is influential in the community nor has the applicant or his siblings been targeted nor that their home has been targeted because of the applicant’s father’s influence in the community. It does not accept on the evidence before it that the applicant has been targeted since childhood and that he lives in an area which is known for violence and killings.   The Tribunal makes this assessment for the reasons given below.

20. Firstly, when asked whether his family were safe in [Village 1] the applicant responded that they were. He stated that his father (now retired) has lived all his life in [Village 1].  His mother has lived all of her life in [Village 1], and his siblings have lived all their lives in [Village 1]. The applicant confirmed that his mother, father and siblings have lived all their lives in [Village 1] throughout the dispute. His uncles, aunts and cousins have also remained living in [Village 1] throughout the dispute. The applicant has stated that the dispute has been generational and is between two large family tribes. The Tribunal finds on this evidence that the applicant’s own family have not moved away from the village for a generation, even though there has been ongoing tension with the [Tribe 2] tribe.  The Tribunal considers that if the dispute was at an intensity and ongoing as the applicant has claimed, that all or even some of his family members would have moved away from the village.  It is evident from his evidence that no family member have moved away from the village and continue to reside at [Village 1].  The applicant himself lived all his life at [Village 1] without moving away, even though he has claimed that the dispute has intensified and been ongoing since [year]. His reason for moving to [City 1] between February 2016 to December 2018 before coming to Australia was, not because he feared being harm in [Village 1] by [Tribe 2] tribal members but because he was studying for a three-year Degree [at] [a] University, [City 1].

21. Secondly, the Tribunal does not accept that his family home or family members have been specifically targeted over time because of the applicant’s father’s position in his tribe. The Tribunal has already accepted for the purpose of this decision that there has been one incident where windows of the family home were damaged in a 2021 incident.   However, on the applicant’s oral evidence, six family members (including his parents) are currently living in the same family home and have lived there for some time. There is no evidence before the Tribunal that the windows smashed in 2021 have not been replaced and that there has been any damage to the property since.  The applicant stated that the home has been in his father’s family for a long time. The applicant has provided evidence that his family were safe and that they are living safely in their family home together in [Village 1].  Given this evidence, the Tribunal does not accept that the applicant’s family home has been specifically targeted in the past or presently nor that his family members have been targeted due to his father’s influential position in the community.  On the evidence, the Tribunal finds that the applicant’s family home has been damaged once in the past but as a result of general occasional violence that has flared up between the two disputing sides.   Given this finding, the Tribunal does not accept that the applicant has been, or will be in the reasonably foreseeable future, a target for violence or discrimination or intimidation because of his father’s influential position in the community, if he was to return.

100.   Thirdly, a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2) of the Act. Section 5LA(1) of the Act provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

101.   The applicant has provided evidence more than once that the authorities can and will protect him but that he is not sure for how long they can keep providing this protection.  Thus, in his protection visa application, he states that the authorities of his country can and will protect him “definitely” but “not for long”. He states that the “police are more than capable to protect [him]” but he does not know for how long because “crazy people take the law into their own hands” and do “unimaginable stuff”.  At the hearing he provided evidence that the Solomon Island police patrol regularly and that this helps the disputes a lot. He stated that the police regularly patrol the two disputing villages because they know about this ongoing dispute. He stated that the police have been doing these patrols for a long time and that this seems to have worked and that the tension is kept to a minimum. He states that the [Tribe 2] tribe are prevented from doing harm because of the police. The applicant has claimed, however, that the police will not be able to protect him or his family in the long term because the fighting is worsening. The Tribunal has considered the applicant’s evidence but does not accept that the police will not be able to protect the applicant or his family, now or in the reasonably foreseeable future. The applicant’s evidence above acknowledging competent and effective police protection does not point to his fear of being harmed as being well-founded. The Tribunal has already found evidence of how the applicant’s close family members have lived a lifetime in the same village and continue to do so. They are living in the same family house that has been in his father’s family for more than a generation.

102.   The applicant has provided evidence that, added to his evidence that police have been providing protection to both tribes for many years now, his village has the additional protection of his cousin who is working in the police force and who can be called on, along with his cousin’s police team, to come to the village to assist in any disputes.  The applicant does not state that his cousin is the only protection that he and his village has, given that the applicant has on more than one occasion stated that the village is safe and has been safe because of police intervention and patrolling for many years.   However, the applicant makes it very clear in his written and oral evidence that his family and his village are safe because of police patrols and that this has been the case for many years.

103.   The applicant’s own evidence that the police have been providing adequate protection is consistent with independent country information that was put to the applicant. Thus, in assessing the applicant’s claims, the Tribunal has had regard and carefully assessed the significant credible and reliable country information available to the Tribunal concerning state protection. The Tribunal notes that elements of foreign police forces play an active and essential role in domestic policing which have come about through a series of bilateral agreements with foreign governments.[2]

[2] Country Reports on Human Rights Practices for 2022, Solomon Islands, US Department of State, 20 March 2023, p. 1. 

104.   In respect to the judiciary and the police force, contained within Freedom House’s Freedom in the World 2023 report (‘Freedom House report’) on the Solomon Island is the following relevant country information.

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.[3]

[3] Freedom in the World 2023 - Solomon Islands, Freedom House, 2023, Part F1. 

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.

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.[4]

105.   The Tribunal notes that the Penal and Criminal Procedure Codes were among the existing laws that had effect as part of the laws of Solomon Islands on independence in 1978. These two pieces of legislation contain, in general, the criminal law of Solomon Islands. In addition, other statutes have also enacted provisions creating offences thereby adding to the body of criminal law in the Solomon Islands.[5]

106.   The applicant’s response to this country information - which suggested that effective protection by the Solomon Island police is available to the applicant upon his return – was that this was a “50-50 situation” and that the police can provide security but not all the time, that they are not always there to protect him or his family tribe and that this becomes harder still in rural areas. The Tribunal has considered this response but does not accept this to be the reality, given the applicant’s evidence that the police patrol regularly have been keeping tension down for a generation now, have been proactive between the two disputing tribes and that they have kept the applicant, his family and family tribe safe up to this time. Independent country information continues to support the effectiveness of the police force, now and into the reasonably foreseeable future. The Tribunal finds, on the independent country information, that State protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system and that the applicant can access the protection, and that the protection is durable.

107.   Given the evidence before it and given also that the applicant has provided evidence that the police and surrounding communities have been helping his family tribe for many years, the Tribunal does not accept that the police and relevant authorities will not be able to continue to protect the applicant, his family members and his family tribe as they have been doing for a generation now if the dispute was to flare up between the two tribes.  The Tribunal finds that the applicant does not have a well-founded fear of persecution due to effective protection measures being available to the applicant in and around the surrounding areas of [Village 1].

108.   Fourthly, 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.]

[4] Freedom in the World 2023 - Solomon Islands, Freedom House, 2023, Part F3. 

[5] Sir John Muria, Chief Justice, High Court of Solomon Islands: Criminal Law in Solomon Islands - Chapter 1: Introduction to Criminal Law (paclii.org)

109.   The applicant first arrived in Australia on [date November] 2021, and it was not until 12 October 2023 that he lodged with the department his application for a protection visa. The Tribunal has considered the applicant’s response to this concern, namely that he has been finding it hard to obtain evidence to support his claim since arriving in Australia. The Tribunal does not accept this response given that he has been in Australia since 2021, that he has provided evidence that he continues to remain in regular contact with his family and so has had ample opportunity in obtaining any further evidence needed to support his claims (since [date November] 2021) and that he has been given ample time by the department and the Tribunal to provide any further evidence. 

110.   The applicant has provided evidence at the hearing that he wishes to remain longer in Australia to support his family financially to give them a better life. He has stated that his siblings are growing up and that they depend on him to support them.  The applicant gave evidence at the hearing that he arrived in Australia on a Seasonal Worker Visa in November 2019.  He stated that as a result of the visa about to expire [in] October 2023 he applied for a protection visa on 12 October 2023.  He stated that he also wanted to stay in Australia because he was happy here and he could work and earn an income here.  When the Tribunal raised with him its concerns that he applied for a protection visa at the end of his seasonal worker visa and did not apply at the earliest opportunity after arriving in Australia, he stated that he had the opportunity to do so but wanted to stay longer in Australia.  He stated that he eventually applied for a protection visa to stay longer in Australia. He then stated that he did not feel safe returning to the Solomon Islands and that he feared being harmed if he returned. 

111.   Having considered the applicant’s responses, the Tribunal does not accept his claims that he did not want to return to the Solomon Islands because he did not feel safe upon his return or that he feared he would be harmed upon his return, given all his evidence above that his motivation for applying for a protection visa to stay longer in Australia just 4 days before the expiry of his Seasonal Worker Visa, that he was wanting to stay here to earn an income, that he wanted to continue to support his siblings and family financially back at home and that he could work in Australia.

112.   The Tribunal finds that the period of delay of nearly two years before lodgement of his protection visa is a significant delay and that this goes to the genuineness of the applicant’s subjective fear of persecution. This finding is strengthened by the applicant’s motivation in remaining in Australia to support his siblings and family financially and to wanting to stay longer in Australia and earn money and work. 

113.   The Tribunal also finds that this evidence goes towards the credibility of his claims that he and his family have been targeted because of his father’s influence in the village given that the Tribunal finds that his motivation for applying for a protection visa in Australia was to support his siblings and family financially and to wanting to stay longer in Australia and earn money and work and not because he feared being harmed because of his association with his family. The Tribunal has also found that his family are safe in the village and at the family home that they have lived at for a lifetime and have not been specifically targeted because of his father’s influence in the village or the family tribe.

114.   On the evidence before it, the Tribunal does not accept that the applicant will be harmed or targeted in the reasonably foreseeable future from [Tribe 2] tribe members generally or because of his association to his father were he to return to the Solomon Islands and to [Village 1]. Given the evidence before it and considering the findings above individually and together, the Tribunal does not accept that the applicant has a well-founded fear of persecution for a refugee reason, were he to return to the Solomon Islands, now or in the reasonably foreseeable future.

115.   The applicant has claimed that the [Tribe 2] tribe uses witchcraft to kill people in the applicant’s village.  When pressed on what he meant by this, the applicant stated that there had been sickness everywhere in the village and that people in his village had died of witchcraft.  The Tribunal notes that the applicant has not provided any evidence whatsoever to support this claim and provided no response when invited to do so after the Tribunal indicated to him that it might not agree that there was a connection between the sickness occurring in his village and witchcraft from the [Tribe 2] tribe unless the applicant had evidence to the contrary.  The applicant did not provide any evidence to support this claim in any way.  Having considered the lack of evidence before it, the Tribunal does not accept that there is any connection at all between any sickness that might have occurred in the village and witchcraft from the [Tribe 2] tribe.  There is no evidence whatsoever before the Tribunal that the [Tribe 2] tribe is practicing witchcraft at all. The Tribunal, therefore, does not accept this claim in its entirety.

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

117.   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 there are now more people in the Solomon Islands with fewer jobs and that agriculture is not good either. However, 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.[6] The economic conditions faced by the applicant would apply to all citizens in the Solomon Islands.

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

118.   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.

119.   The Tribunal has considered the applicant’s written evidence that he cannot move to another part of the Solomon Islands because he was a student who did not have qualifications or work experience to survive. It has considered his evidence at hearing that he did not think that he could remain in [City 1] to study as his father cannot afford to keep him at the University anymore. Given that the Tribunal has already made its findings that there is not a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a s 5J(1)(a) refugee reason if he was to return to [Village 1] or its surrounding areas in the Solomon Islands, the Tribunal finds that there is no real chance the applicant will face serious harm in the reasonably foreseeable future for a s 5J(1)(a) refugee reason in any other area of the Solomon Islands including [City 1].

120.   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).

121.   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. 

122.   In considering whether the applicant faces a real risk of significant harm for the purposes of the complementary protection criteria, the Tribunal notes that ‘significant harm’ is exhaustively defined in s.36(2A): s.5(1).  Thus, a person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

123.   In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee definition.[7] For the reasons given above the Tribunal found that there is no real chance that the applicant will suffer serious harm for one or more of the reasons mentioned in s 5J(1)(a) of the Act.  Notwithstanding that the Tribunal has provided the applicant the opportunity in a variety of ways, the applicant has not put forward any claims other than those above. On the basis of the reasoning above as it relates to the real chance consideration as it relates to his claims, the Tribunal has also considered the applicant’s claims against the real risk consideration. Having regard to the Tribunal’s findings above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Solomon Islands, there is a real risk that the applicant will suffer significant harm from the [Tribe 2] tribal members, nor that significant harm will be suffered by him. 

124.   The Tribunal also finds that the economic harm feared by the applicant, namely cost of living pressures, economic insecurity, insufficient income to support one’s family, the need to support one’s family financially in the Solomon Islands, 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’.[8] 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.

[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013)per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

[8] 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

125.   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).

1. 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).

2. 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

128.   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.

…