2404134 (Refugee)

[2024] AATA 3305

2404134 (Refugee) [2024] AATA 3305 (7 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2404134

COUNTRY OF REFERENCE:                   Solomon Islands

MEMBER:Don Smyth

DATE:7 June 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 07 June 2024 at 3:10pm

CATCHWORDS

REFUGEE – Protection Visa – Solomon Islands – domestic violence victim – gender-based violence – complementary protection – lack of employment experience – family support – ability to relocate – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 56, 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

BACKGROUND

1. The applicant claims to be a national of Solomon Islands and has provided a copy of the bio data page of her Solomon Islands passport. I accept that she is a national of Solomon Islands.

2. The applicant applied for a protection visa on 22 October 2023.

3. On 4 March 2024, a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.

   SUMMARY OF CLAIMS AND EVIDENCE

4. According to information provided in her protection visa application, the applicant was born in [Town 1] in [year]. She gave an address [in] [Town 1] for the period from [birth] to May 2023. She indicated that she had married on [date] December 2002.

5. The applicant indicated that she was in contact with relatives outside Australia. She stated that she sometimes made a phone call to her family member who still resided in [Town 1].

6. The applicant claimed to have been unemployed from [birth] to May 2023. With regard to how she financially supported herself, she referred to planting casava. With regard to activities undertaken, she referred to farming.

7. The applicant gave her ethnic group as Melanesian and her religion as Christian.

8. The applicant indicated that she had arrived in Australia on [date] May 2023 and identified the type of entry as ‘International Relations’.

9. The applicant made written claims in her protection visa application. With regard to her reasons for leaving Solomon Islands, she referred to there being no women’s rights to speak or to ‘stand with their own believe’. She stated that she had been beaten and threatened by her husband, and described him as very abusive. She referred to there being violence in their relationship and to her husband never caring about her situation. She stated that for him women were ‘a maid’. The applicant stated that she had asked for help from her family but there was nothing they could do because they were the ones who had arranged her marriage. She said that it was like selling a daughter ‘for their own priority’. The applicant made claims to the effect that she had tried to move to another part of the country but they kept searching for her.

10. The applicant made claims to the effect that they would punish her because of her decision to leave her husband. Her husband would never stop hitting and punching her. She said that he was a very toxic person. She did not want to continue the relationship because of the violence. With regard to whether the authorities could and would protect her if she went back, she stated that the authorities never stood against men because they believed men were the leaders of the household. She indicated that she did not think she would be able to relocate to an area where she would not be harmed. She stated that she believed this country had women’s rights that could help educate women to stand against violence.

11. The applicant also provided a copy of her Solomon Islands Driving Licence.

12. On 20 December 2023, the Department wrote to the applicant inviting her to provide further information. This included her marriage certificate, details of her husband, details of her relationship, information on where she moved to in Solomon Islands, information on whether she needed to seek medical treatment and/or assistance from a local authority, information as to why she felt her partner would continue to harm her if she returned and information concerning whether she was in a new relationship.

13. The applicant provided a response on 2 January 2024. She stated that the main purpose for the protection claim was that she had been abused by her ex-husband. She stated that they married in a small village. They did not have a marriage certificate because it was a traditional wedding arranged by the village leader and the authorities. She named her former spouse as [Mr A] and gave his date of birth.

14. The applicant stated that she had tried to move ‘in [Town 1]’ but appeared to indicate that this was only for 2 to 3 months since 8 January 2020 because her former spouse and his family found out where she was staying. She did not make any police report or report to the government authorities. She appeared to indicate that this was because she was scared of something happening to her family. She stated that she decided to move to Australia with help from her parents and relatives because they did not want to see her suffer. She indicated that she had not been in a relationship since coming to Australia.

15. On 4 March 2024, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate was not satisfied that the applicant’s claims relating to domestic violence were genuine and found that the applicant’s claim that she would experience violence from her former husband was not credible. The delegate was not satisfied that the applicant was a refugee as defined in s 5H(1). Nor was the delegate satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Solomon Islands, there was a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act.

16. The applicant attached a copy of the delegate’s decision to her review application.

17. The applicant appeared before the Tribunal on 14 May 2024 to give evidence and present arguments.

18. By letter of 26 April 2024, the Tribunal invited the applicant to appear before the Tribunal to present evidence and give arguments at a hearing on 14 May 2024. The applicant telephoned the Tribunal on 8 May 2024. She indicated that she was in Cairns and that she would have difficulty coming to the Brisbane Registry for the hearing. The applicant had sent the Tribunal an email on 7 May 2024 in which she appeared to request that the hearing be scheduled in Cairns due to financial problems. The Tribunal wrote to the applicant on 8 May 2024, providing her with a guide to video hearings and asking her to confirm that she would have the equipment to take part in the hearing if it were to be conducted by video using Microsoft Teams. On 8 May 2024, the applicant sent the Tribunal an email in which she appeared to indicate that she would endeavour to attend the hearing in person. On 9 May 2024, the applicant called the Tribunal and stated that she would attend the hearing in person as she did not have capacity to attend by MS Teams.

19. The applicant did in fact attend the hearing of 14 May 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages. I have had regard to all of the applicant’s evidence at hearing, although it is not necessary to set this out in full. Aspects of the applicant’s evidence are summarised in my consideration, below.

    CRITERIA FOR A PROTECTION VISA

20. 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.

21. 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.

22. 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).

23. 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.

24. 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

25. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. I have carefully considered all of the applicant’s claims and evidence, including her evidence at the hearing. Aspects of her oral evidence are summarised below.

27. At the hearing, the applicant provided a credible and generally consistent account of her relationship with her former husband. In summary, she indicated that she had lived in [Province 1] before coming to Australia. She indicated that she had been living with her husband’s family in a village in [Province 1] (which she named) after getting married. The applicant indicated that she had grown up in [Province 1]. She gave evidence to the effect that her parents were from [Province 1] and that her mother was continuing to live in [Province 1]. She indicated that she had attended school in her village but had not finished her schooling. The applicant said that she did not work in Solomon Islands. When asked how she had supported herself, she referred to planting crops and selling them at the market. The applicant indicated that she had three older sisters and a brother. One sister lived in [Town 1], while the others lived in the family’s village in [Province 1]. She indicated that her sisters in the village did not work, while her sister in [Town 1] did the market. While she said that her brother did not work, she indicated that he grew crops and sold them for money. The applicant indicated that she had 4 children, ranging in age from [age] to [age]. She gave the name and age of each of her children. She indicated that the children were living with her mother and that her mother had been looking after the children since they were young.

28. The applicant gave evidence that she had come to Australia on the seasonal worker program on [date] May 2023. She said she had been working on a farm. She indicated that she had previously come to Australia on [date] March 2021. During COVID, she extended her stay for another 9 months. She returned to Solomon Islands on [date] October 2022. The applicant confirmed that she was in Australia from [date] March 2021 to [date] October 2022, and that she then returned to Solomon Islands.

29. At the hearing, the applicant claimed to fear her former husband. She gave details such as the name and date of birth of her former husband in a manner consistent with information she had provided to the Department. She indicated that her relationship with her former husband, [Mr A], ended in 2020. When asked how she had first met her husband, she described meeting him at a market [in] October 1998. When asked about whether they had married, she said that she met him at the market. Their people saw the two of them together and they got married. She described the marriage as a traditional marriage. She referred to a ceremony in December 1998. When it was raised with her that the protection visa application gave the date of marriage as [date] December 2002, she said that they had a small ceremony in 1998. Then there was a big one with everybody all together in 2002. With regard to the ceremony in December 1998, she referred to people seeing them in the market and said in the customary way they should not have met in public. They had a ceremony in 1998 to say sorry that people saw them in public. [Date] December 2002 was when it was official for everybody to come together. When asked whether it was an arranged marriage, she said that the second one on [date] December was an arranged marriage. She said that what she meant was that her family and his family came together to set a date when they would all go together and meet in public. She gave evidence to the effect that, when friends ended up getting married, they used shell money to give to the woman’s family. She said that was what an arranged marriage was, not selling a daughter. She confirmed that there was a bride price paid to her family. She indicated that the marriage ceremony in December 2022 was in her village in [Province 1]. She said a traditional marriage was not a signed document. It was where the family came together and ate together and exchanged bride price. She indicated that her husband took her to his village after December 2002 and that she was living in his village after that. She said that, when they separated in 2020, she went back to her village and stayed.

30. With regard to her relationship with her former husband, the applicant stated that he used to drink alcohol. She described him as being very abusive, very violent. She referred to physical abuse. She described injuries such as having a swollen face, black eyes and blood clots. She also referred to sexual abuse. She gave evidence that she did not go to the hospital or clinic because it was a long way. She said she never reported it to the police. Firstly, where she lived was very far from town. Secondly, she lived in fear because he was torturing her and might do bad things to the family. When asked about whether she had ever sought assistance from her family, she said that her family were afraid of him as well because he was very aggressive and used to use knives and heavy objects.

31. The applicant described the circumstances in which she left her husband in 2020. She said that when he was abusing her he usually locked her up in the room and bashed her. That day he was in the kitchen. He hit her and kicked her, and she fell down. She said he held a knife to cut her. That was the day she wanted to escape from him for her life. She described running into the bushes and running to her village. She gave evidence to the effect that she left her former husband on 1 January 2020. The applicant indicated that she lived in her mother’s house in [Province 1] from January 2020 to March 2021. She said that during that one year her former husband came to the village and saw her and attacked her in public even though she was not living with him. She referred to this happening 10 times. She referred to him threatening to kill her because she had left him. The applicant indicated that, when she returned to Solomon Islands in October 2022, she went back to her village in [Province 1]. Within one month of her getting there her former husband came around and hit her again. He said he would kill her. The applicant said that from that time she was afraid of him and did not move about much.

32. When asked about whether she had spent much time with her sister in [Town 1], the applicant said that she only went to stay with her sister when she had things to do in [Town 1]. She just stayed a couple of days and went back. She said that she used to go and stay there. When she used to live with [Mr A], she used to go to her sister and go back. She said her former husband was aware of that address. If she stayed in [Town 1] with her sister, he would look for her. She gave evidence that, at the beginning of May 2023, before she came to Australia he followed her to [Town 1]. She saw him on the street and ran when she saw him. The applicant described the Solomon Islands as a small place. She said that [Town 1] and [Province 1] were not far from each other. The applicant expressed a fear that her former husband would locate her wherever she moved. She said if she relocated elsewhere the people who knew her or knew him would let him know that she had moved to that place. She expressed a fear that he might catch her and hurt her. She said in Solomon Islands she was afraid of getting caught by him. She said if women did report domestic violence to the police they did not take action. She said that it affected a lot of women. She said she did not think the police would help her because women in Solomon Islands had no power.

    Refugee Criterion

33. In considering the applicant’s claims, I have had regard to the Tribunal’s Guidelines on Gender. I note, for instance, paragraphs 14 and 15 of those Guidelines which refer to difficulties applicants may face in presenting and pursuing gender-related claims. These include difficulties establishing the credibility of an applicant’s claims, as well as difficulty an applicant may have in discussing his or her experiences of persecution because of shame or trauma.

34. I have also had regard to independent information concerning gender-based violence and consider the applicant’s description of her experience to be consistent with information regarding the prevalence of gender-based violence and attitudes towards women in Solomon Islands. The independent information paints a concerning picture with regard to gender-based violence and the nature of the official response to such violence. The information indicates that gender-based violence is highly prevalent in Solomon Islands. It has been reported that Solomon Islands has one of the highest rates of family and sexual violence in the world. Two thirds of women aged 15 to 49 report having experienced physical or sexual abuse by a partner. It is reported that three-quarters of both men and women believe this violence is acceptable, especially if a woman is ‘disobedient’.[1]  According to the US Department of State, gender-based violence, including rape and domestic abuse, remained a serious problem but was underreported. Among the reasons cited for failure to report abuse were pressure from male relatives, fear of reprisals, feelings of shame, and cultural taboos on discussing such matters. Sexual harassment is also reported to be widespread. The State Department observed that fear of pervasive gender-based violence prevents women from taking more active roles in economic and political life.[2]

    [1] ‘Solomon Islands is no paradise for women. These people are leading the charge for change’, ABC News (6 April 2020)

    [2] 'Country Reports on Human Rights Practices for 2023 - Solomon Islands', US Department of State (22 April 2024) at p.11-12

1. Domestic violence is a criminal offence punishable by up to three years in prison and a substantial fine.[3] However, the available information indicates that victims often drop charges before a court appearance or settle cases out of court. It is reported that, in cases in which charges are filed, the time between the charging of an individual and the subsequent court hearing could be as long as two years. Prosecutions are rare due to low judicial and police capacity and gender discrimination.[4]  A 2019 joint study by Australian Aid and the Government of Solomon Islands examined how police respond when women report family violence incidents. The report indicated that the most common response by officers in instances where women visited the police to request help for family violence matters was ‘no information or action’. It was reported that in such cases women may be told to ‘come back later’, discouraged or given other responses.[5]

   [3] Ibid.

   [4] Ibid.

   [5] ‘Women’s experiences of family violence in Solomon Islands’, Australian Aid & Government of the Solomon Islands, 26 November 2019, p.26 & p.6

2. In all the circumstances, I consider that the applicant provided a credible and generally consistent account of her experience of violence at the hands of her former husband. Her description of her experience is consistent with independent information on gender-based violence and attitudes towards women in Solomon Islands.

3. In considering the evidence, I am conscious that the applicant has been unable to provide corroborative documentary evidence in relation to her marriage such as a marriage certificate or birth certificates. However, the applicant claims that her marriage is a customary marriage and I consider that her evidence in this regard is consistent with independent information on marriage practices in Solomon Islands. Independent information indicates that a customary marriage is a valid marriage under the Islanders’ Marriage Act and is one of three forms of marriage recognised under the Act. Customary law is recognised in the Constitution. The independent information indicates that registration of a customary marriage is voluntary under s 18(1) of the Islanders’ Marriage Act and that this does not take away from the marriage’s legitimacy. Other legislation recognises the validity of customary marriages whether registered or not.[6]

   [6] Kafa, Z. , ‘Marriage in Accordance with Custom: Issues with Marriage under Customary Law in Solomon Islands’, Comparative Law Journal of the Pacific, Volume 29 (2023), p.126

4. I consider that the applicant’s evidence about her customary marriage is consistent with the available independent information on customary marriage in Solomon Islands. It is also consistent with that information that the marriage had validity as a marriage under Solomon Islands law in spite of the fact that it was not registered. With regard to being able to provide birth certificates, independent information indicates that birth registration in Solomon Islands is incomplete. I note, for instance, that independent information points to low rates of official birth registration in 2013 and the years immediately prior to that. I note also that it was reported that, of the children aged under five years included in a 2015 Demographic and Health Survey, only 26.2% were reported to possess a birth certificate.[7] In all the circumstances, I do not consider the absence of documentary evidence, particularly in relation to a claimed customary marriage, to be decisive in circumstances where the applicant has otherwise provided a credible account of a past relationship.

   [7] Pacific Community, Brisbane Accord Group & Unicef, Civil Registration and Vital Statistics in Solomon Islands (2021)

5. As discussed above, I found the applicant’s evidence about her past relationship and about the abuse suffered at the hands of her former husband to be convincing, generally consistent and in accord with independent country information about gender-based violence in Solomon Islands. While there were some aspects of the evidence that initially caused me some concern, I ultimately considered these to be of limited significance. I note, for instance, that, while the protection visa application gave the date of the marriage as [date] December 2002, the applicant referred at hearing to a ceremony in 1998. When this was raised with her, the applicant described having a small ceremony in 1998 after she and her partner had been seen together in the market and having the main ceremony in 2002. Again, independent information lends weight to the suggestion that a customary marriage may involve multiple ceremonies conducted some time apart. For instance, in the article ‘Marriage in Accordance with Custom: Issues with Marriage under Customary Law in Solomon Islands’ published in the Comparative Law Journal of the Pacific, the author (an officer of the Solomon Islands Law Reform Commission) describes her own customary marriage as having occurred in three stages over a relatively extended time period.[8] I accept as plausible the applicant’s description of multiple ceremonies conducted some time apart.

   [8] Kafa, Z. , ‘Marriage in Accordance with Custom: Issues with Marriage under Customary Law in Solomon Islands’, Comparative Law Journal of the Pacific, Volume 29 (2023), pp.121-122

6. I note also that, while the application referred to the applicant’s parents as having arranged the marriage, the applicant’s evidence at the hearing indicated that she had met her former husband at a market and that she had voluntarily entered into a relationship with him. However, it is consistent with independent information that, as part of a customary union, an arrangement may have been made involving the payment of shell money to the applicant’s family,[9] and that it was in this sense that the applicant’s family were involved in arranging the marriage. I am willing to accept also the applicant’s explanation that the address in [Town 1] given in the protection visa application is her sister’s address and that she came and went from this address. Although there were some aspects of the evidence that initially caused me some concern, any inconsistencies are minor in nature and the applicant has been able to provide explanations for these matters that I consider to be generally plausible.

   [9] Ibid. at p.121

7. I have also considered the applicant’s prior travel to Australia, a matter that may on the face of it give rise to some concern. The applicant was open at the hearing in giving evidence that she had previously come to Australia on [date] March 2021 and that she had returned to Solomon Islands on [date]  October 2022. She returned to Australia on[date] May 2023 and applied for protection on 22 October 2023. The applicant’s delay in applying for protection, particularly in circumstances where she returned to Solomon Islands for a period, did cause me some concern. I note that the Tribunal’s Guidelines on the Assessment of Credibility (at paragraph [37]) indicate that a delay in applying for protection should not be the sole reason for doubting an applicant’s claims. In considering the evidence, I have also had regard to the Tribunal’s Guidelines on Gender, and in particular paragraphs 14 and 15 of those Guidelines which refer to difficulties applicants may face in presenting and pursuing gender-related claims. I note also that the National Domestic and Family Violence Bench Book refers to a range of factors that may impact on disclosure, including violence not being seen as sufficiently serious to warrant disclosure, feelings of shame and humiliation, and lack of awareness of relevant laws and legal rights.[10] The applicant claims that she returned to Solomon Islands in circumstances where her contract had ended, her visa was coming to an end and she was unaware that she was able to apply for protection.

   [10] National Domestic and Family Violence Bench Book, section 5.1, ‘Impact on consent and disclosure’ (June 2023), available at < >

   I note that, in SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims’.[11] A similar approach is endorsed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection.[12]

   [11] SZLVZ v MIAC [2008] FCA 1816 at [25]

   [12] UNHCR, re-issued February 2019 at [203]–[204]

8. The applicant’s delay in applying for protection and return to Solomon Islands did cause me some concern, although it is not entirely implausible that the applicant may not have been aware of the ability to seek protection in relation to her experience of domestic violence. In circumstances where the applicant has otherwise provided a credible and largely consistent account of her past experience, in a manner consistent with the independent information, I do not consider the delay to be decisive in itself. In all the circumstances, I consider it appropriate to give the applicant the benefit of the doubt and accept her account of past abuse.

9. In these circumstances, I accept that the applicant was in a relationship with [Mr A] from 1998 to 2020 as claimed, that she lived with her husband’s family in a village in [Province 1] and that she was married to [Mr A] in a customary marriage that was not registered. I accept that the applicant’s former husband was abusive to her over the course of the relationship, and that the abuse included significant physical harm as well as sexual abuse. I accept that she did not seek assistance from the authorities due to fear of her former partner and concern for her family. I accept that the applicant left her former husband in 2020 after he threatened her with a knife. I accept that the applicant went to her mother’s house in [Province 1] and that her former husband came there and harmed her on a number of occasions. I accept as plausible also that the applicant’s former husband is aware of where the applicant’s sister lives in [Town 1], that he previously came to [Town 1] to look for the applicant and that the applicant saw him in [Town 1]. As observed in the National Domestic and Family Violence Bench Book, where violence has occurred in a relationship, it is common for perpetrators to continue or escalate the violence after separation in an attempt to gain or reassert control over the victim, or to punish the victim for leaving the relationship.[13] In all the circumstances, I accept that the applicant has continued to attract attention from her former husband in the wake of her separating from him and that he has remained motivated to harm her.

   [13] National Domestic and Family Violence Bench Book, section 4.2, ‘Factors affecting risk’ (June 2023), available at < >

   I have considered whether, if the applicant were to return, she would face a real chance of persecution. The nature of the violence described by the applicant paints a concerning picture of sustained and significant abuse directed at her by her former husband. I accept that this included being threatened with a knife and note research cited in the National Domestic Violence Bench Book to the effect that the severity of abuse-related harm is significantly heightened when weapons are involved.[14] I accept that the applicant’s former husband continued to target the applicant after she left the relationship and that he remains motivated to harm her. In all the circumstances, I am satisfied that there is a real chance that the applicant would suffer serious harm from her former husband in the reasonably foreseeable future if she were to return to the village in [Province 1] where she lived with her mother previously. I have accepted that the applicant’s former husband is aware of where the applicant’s sister lives in [Town 1] and that he came looking for her in [Town 1] previously. I accept that she would face a real chance of serious harm from her former husband if she were to return to live with her sister in [Town 1].

   [14] Ibid.

10. However, s 5J(1)(c) requires that the real chance relate to all areas of the receiving country. In this case, the real chance emanates from the applicant’s former husband who lives in [Province 1]. While I accept that he may also present a threat to the applicant in [Town 1] where she has spent time previously, I consider that the real chance of serious harm is localised to the areas of [Province 1] and [Town 1] where the applicant’s former husband has an ability to locate and harm her. On the evidence before me, I find that the real chance of serious harm from the applicant’s former husband does not relate to all areas of Solomon Islands. In these circumstances, s 5J(1)(c) is not satisfied and the applicant does not have a well-founded fear of persecution. It follows that the applicant is not a refugee as defined in section 5H(1) of the Act.

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

    Complementary Protection Criterion

12. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).

13. In this regard, I note that the threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a).[15]

    [15] See MIAC v SZQRB (2013) 210 FCR 505

14. I note that ‘significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). 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. I have had regard to these definitions.

15. I note also that, in EVW20 v MICMSMA, Mercuri DCJ observed as follows: ‘In circumstances where section 36(2)(aa) of the Act requires the Tribunal to assess whether the applicant faced a risk of significant harm if she were to return, it was incumbent upon the Tribunal to determine where she would be returning to.’[16]

    [16] EVW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 259 at [99]

16. In the present case, I accept that the applicant went to live with her mother in the village in [Province 1] after leaving her husband, that her children are there and that she returned there after visiting Australia in the past. I find that this is the place she is likely to return to. While the evidence indicates that she spent some time with her sister in [Town 1], I accept that she would come and go from [Town 1], and that she had not established a residence there.

17. As outlined above, I have found that the nature of the violence described by the applicant paints a concerning picture of sustained and significant abuse directed at the applicant by her former husband. I accept that this included being threatened with a knife.  I accept that the applicant’s former husband continued to target the applicant after she left the relationship and that he remains motivated to harm her. I accept that the applicant’s husband lives in [Province 1]. In all the circumstances, I am satisfied that, if the applicant were to return to [Province 1], there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Solomon Islands, there is a real risk that she will suffer significant harm. In particular, there are substantial grounds for believing that there is a real risk that she will suffer harm amounting to cruel or inhuman treatment or punishment, or degrading treatment or punishment. In making this finding, I have had regard to the definitions of these forms of significant harm in s 5(1) of the Act.

18. Having regard to the exception in s 36(2B)(b), I have considered whether the applicant could obtain protection from an authority of Solomon Islands such that there would not be a real risk that she will suffer significant harm. I accept that the applicant did not complain to the authorities in the past due to fear and concern for the welfare of her family. Independent information, referred to above, indicates that prosecutions are rare due to low judicial and police capacity and cultural bias against women, and that ‘no information or action’ is the most common response in instances where women visit the police to request help for family violence matters. I find that the applicant could not obtain protection from Solomon Islands authorities such that there would not be a real risk that she will suffer significant harm.

19. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country.[17]

    [17] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

20. In this regard, I consider it relevant that the applicant has been a victim of domestic violence. I accept that she was in a controlling relationship in the past and that she is lacking in paid work experience in Solomon Islands. I consider this relevant to the reasonableness of relocation. I note that the evidence indicates that the applicant has a sister in [Town 1] and that the applicant has spent time with this sister in the past. However, I have accepted that the applicant’s former husband is aware of where this sister lives and has sought to locate the applicant there in the past. If the applicant were to seek to relocate to the place where her sister lives in [Town 1], I find that there is a real risk that the applicant will suffer significant harm there. Having regard to the applicant’s history and matters such as her lack of employment experience, I do not consider it reasonable for the applicant to relocate to a part of [Town 1] away from her sister and away from immediate family support.

21. While I consider that there would not be a real risk of significant harm if the applicant were to relocate away from the places in [Province 1] where her former husband and her mother live and away from the place in [Town 1] where her sister lives, I do not accept that it would be reasonable for the applicant to do so. I accept that the applicant would not have family support in other places. She is lacking in employment experience to assist her in establishing herself in other places. The applicant would face the prospect of establishing herself in another area with very limited support. The applicant is a survivor of domestic violence. The independent information indicates that gender-based violence and cultural bias are problems throughout Solomon Islands. In all the circumstances, I find that it would not be reasonable for the applicant to relocate to an area of Solomon Islands away from the places in [Province 1] where her former husband and her mother live and away from the place in [Town 1] where her sister lives. While there are areas of the country where there would not be a real risk of significant harm to the applicant, I find in all the circumstances that it would not be reasonable for the applicant to relocate to such areas.

1. The real risk is one faced by the applicant personally rather than by the population generally. In these circumstances, s 36(2B)(c) does not apply.

2. I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Solomon Islands, there is a real risk that she will suffer significant harm from her former husband.

3. I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

4. On the available evidence, there is no suggestion that the applicant would have a right to enter and reside in any third country such that s 36(3) of the Act would apply.

   DECISION

5. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

   Don Smyth
   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.

   …