2405076 (Refugee)

2405076 (Refugee) [2024] AATA 4107 (30 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Catherine Coleman
CASE NUMBER: 2405076

COUNTRY OF REFERENCE: Solomon Islands
MEMBER:Clyde Cosentino
DATE:30 September 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 September 2024 at 9:37am
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – cross cultural relationship – pregnancy – physical assault – fear of killing – request for compensation – bride price – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 55
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Solomon Islands, applied for the visa on 11 November 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the department), 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
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
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Protection visa application
The applicant provided the following details in his protection visa application.
He was born in Honiara, Solomon Islands.
He has never married.
He holds Solomon Island citizenship.
He last arrived in Australia [in] October 2021.
He provides no information about his employment or education history in the Solomon Islands. He states that, at the time of lodgement of the application, he was not working.
He makes the following claims in his protection visa application.
When asked why he left the Solomon Islands he claims:
I have left my home country because I was brutally attacked by a group of men and was fighting for my life before I fled to Australia. I was living in Honiara, and I was going out with a girl from MALAITA PROVINCE. Her parents and family didn't accept me to see this girl. They came to my family home and demanded money for compensation because I was dating their daughter. My family meet their demands and they warned me not to see her again. I didn't listen and I kept on seeing this girl. Her brothers and uncles are not too happy with me when I heard that I still see her. They approach me one evening on the roadside on my way home and attacked me. I was badly injured from the attack. I ended up in the hospital for 2 weeks. They threatened that they will end my life when I come out of the hospital. I was afraid so when I came out from my recovery, I tried to hide from houses to houses but they still were looking for me. The only chance to survive is to leave and ran away to Australia.
When asked whether he experienced any harm in the Solomon Islands, he claims that he did. When asked to give details of this harm that he experienced he claims:
Gang assault, grievous bodily harm. Murder threats
When asked whether he sought help within the Solomon Islands after the harm, he claims that he did not. He claims:
I was too afraid to move around in public otherwise they would see me and kill me.
When asked whether he moved to another part of the Solomon Islands to seek safety he claims:
I have tried but they still find me.
When asked what he thinks will happen to him if he returns to the Solomon Islands, he claims:
They pass on a msg [message] to my parents that if I ever return, as soon as
I landed back in the Solomon Islands they will chop my head off.
When asked whether he thinks he will be mistreated or harmed if he returns, he claims that he will. When asked to give details of what type of harm or mistreatment he is likely to experience he claims:
Murdered [sic]; Grievous bodily harm.
When asked whether the authorities of the Solomon Islands can and will protect him if he goes back, he claims they will not. When asked to provide details of why he thinks the authorities could not, or would not protect him, he claims:
They will not help me.
When asked whether he thinks he can relocate to another part of Honiara where he would not be harmed, he claims that he cannot. When asked to give details about why he cannot relocate he claims:
Honiara is a small country and they (sic) will be easy to find me.
Tribunal file
Evidence submitted prior to 13 June 2024 Hearing
The applicant’s authorised representative provided the following evidence in support of the applicant’s claims:
a.    Letter from [Relative A] dated [in June] 2024. The letter has no contact details except a P.O.Box address in Honiara. There are no other identifying features in the letter. There is a signature at the bottom of the letter under the name “[Relative A]”. [Relative A] states the following in his letter:
·     The applicant is his “cousin brother”.
·     He wished to confirm what happened in 2021.
·     The applicant was “having a relationship with a girl at that time which ended in [arguments] between [them] and the female relatives…of Malaita ethnic group with the applicant”.
·     During the confrontation, the applicant sustained injuries to his [specified body parts] and had to be rushed to [Hospital 1] in Honiara for emergency.
·     He was later discharged from the emergency wards and attended each day for fourteen days to have his wounds dressed.
·     The applicant and his family have been threatened that they will continue to look for the applicant and “end his life” because of his relationship “with their girl”.
·     The matter has not been resolved.
·     Now that the applicant is in Australia, [Relative A] believes that the applicant “must stay in Australia” and “live a better life than
·     … in the Solomon Islands”.
·     If the applicant returns to the Solomon Islands “they will chop off his head”.
·     He believes the applicant to be of “hard work”, good character, discipline” who is supporting his family back in the Solomon Islands.
b.Police report from [Officer A] dated [in June] 2024. The police report reads as follows:
[Unit 1]
Police Headquarters
P.O.Box G3
Honiara, Solomon Islands
Fax…; Tel: …
Our Reference: [Number]
[June] 2024
To Whom it May Concern
Dear Sir/Madam,
Subject: Confirmation Letter for [the applicant]
I write to confirm to your esteem office that I knew [the applicant] during 2021 at the police station when he was attacked by some people from Malaita, whereby he sustain[ed] injuries [specified].
As a Solomon Islander (Police Officer), I know very well that this country has one of the high rates of violence ethnicity.
However, for [the applicant], was once a victim of Assaults, due to having an affair with a Malaita girl.
Currently he was employed by a Company in Australia under the Seasonal Employment Programme, returning to Solomon Islands means a lot to him since the matter was not yet solved and the perpetrators are residing here in the capital Honiara.
In light of this critical situation, I do recommend [the applicant] to remain in Australia until such time that is safe for him to come over to the Solomon Islands
… …
Signed:
(Signature)
[Officer A] ([number])
Email from the applicant’s authorised representative dated 8 May 2024 seeking a new future date for the hearing (reasons provided in the email) that was originally set down for 27 May 2024. The hearing was subsequently changed by the Tribunal to 13 June 2024. In that email, the authorised representative indicated that the applicant was working for an employer in regional Western Australia and that he would be finished in that work in mid-June 2024.
Tribunal Hearing – 13 June 2024
The applicant appeared before the Tribunal on 13 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant confirmed at the beginning of the hearing that he wanted to speak in English and would use the interpreter for partial interpretation when needed.
At the start of the hearing, the Tribunal explained to the applicant the refugee criterion and the complementary protection criterion separately and how they applied under Australian law respectively.
The applicant recalled his application lodged at the department. He also recalled all the details in that application. He stated that all the answers and claims made to the department were true and correct. He stated that these were the claims that he wished to raise at the Tribunal hearing. He stated that a friend helped him put together the protection visa application.
He also confirmed that he lodged the department decision record with his application for review at the Tribunal.
He last lived in the Solomon Islands at [Town 1], Honiara. He lived at this address from [specified year] until he departed for Australia.
He stated that his mother, [and specified family members] still live at this address. His [specified siblings] are all single. They live in the same house together. The applicant is the [family position among those] who are still living there. He stated that his male cousin, [Relative A], and his wife and family also live there. [Specified siblings] have lived there all their lives.
[One sister] works in Honiara. [Other siblings] are still studying at High school. His cousin is also working in Honiara.
He has [number] uncles who live in Honiara. He has [number] aunts who also live in Honiara. They do not live at the same address as his siblings.
Honiara has been the home of his family and his extended family for a long time.
He speaks to his family through his cousin who has a mobile. He speaks to his family members about once per week.
He stated that he completed his primary and secondary schooling in Honiara. He then went to [a specified] College. He completed his [course] in [subject].
He stated that before he came to Australia, he was [an occupation 1] for [number] years in the Solomon Islands. He is presently working in Australia.
The applicant provided the Tribunal with a copy of his passport at the hearing with several visa stamps. He confirmed that he departed the Solomon Islands [in] January 2019. This was confirmed by his passport. He went to NSW at the time and worked there doing seasonal fruit picking. He came to Australia on a Seasonal Worker Visa.
He then went back to the Solomon Islands in December 2019 just when COVID-19 began. He came back to Australia on [a day in] January 2020 after departing the Solomon Islands on [that day]. His departure from the Solomon Islands was confirmed in his passport. He again arrived on a Seasonal Worker visa.
He stayed in Australia until he departed for the Solomon Islands again. He remained in Australia at the time on a special “Covid visa”. He arrived in the Solomon Islands [in] December 2020. This was confirmed by his passport.
He departed the Solomon Islands again [in] October 2021. This was confirmed in his passport. This was the last time he departed the Solomon Islands and has remained in Australia ever since.
On each of the three occasions that he went back to the Solomon Islands he went to live at his former address with his family in Honiara.
He last came to Australia on a subclass 408 visa for 9 months to work and at the end of that visa he reapplied again for a further 9 months to work in Australia.
He lodged his protection visa application on 11 November 2023.
The Tribunal indicated that he lodged his protection visa two years and one month after he last arrived in Australia. It indicated that, while it has not made up its mind at all, this delay might go towards the genuineness of his claims. It asked him why he took this time period to lodge a protection visa. The applicant’s representative asked if the question could be rephrased. She asked if the question could be why he did not lodge a protection visa in 2021 instead of waiting two years after being in Australia. The question was repeated. The applicant responded that he wanted to wait until his ordinary visa expired before he lodged a protection visa.
The Tribunal indicated that he lodged his protection visa on 11 November 2023. He last arrived in Australia [in] October 2021. From when he last arrived in Australia in October 2021 to when he applied for a protection visa in November 2023, two years and one month went by without him applying for a protection visa. The Tribunal indicated that a delay in applying for a protection visa in Australia might go to the genuineness or credibility of his claims. The applicant stated that he came under the seasonal worker program, where the agent applied for them as a group to work for 9 months and then extended this visa for another 9 months. He came to pick fruit. When the group went back home, he stayed and applied for a protection visa. He stated that he applied for a protection visa because his temporary work visa was going to expire on 14 November 2023.
The Tribunal asked the applicant why he decided to leave the Solomon Islands in 2021 and remain in Australia. The applicant stated that it was an opportunity to come and work as a seasonal worker. He stated that, because he was threatened back home, he did not want to go back to the Solomon Islands.
The Tribunal asked the applicant to expand on how he was threatened back home. He stated that if “they” see him around, “they” will kill him. The Tribunal asked him to expand further as to what this threat is and who it is that wants to kill him. He stated that the family of his girlfriend are threatening him.
The Tribunal asked for him to expand further on his girlfriend’s family and what has happened in the past. He stated that they were threatening him because he had to pay compensation. This family live in the Malaita area. He confirmed that he was seeing a girl from Malaita called [Ms A] (he provided a surname when queried by the Tribunal). He first started speaking to her by telephone while he was in Australia in 2020. He first met [Ms A] in Honiara on [social media] about 6 months before 2020.
He met up with her for the first time personally in January 2020 (New Year’s Eve). The relationship grew after the New Year’s Eve party. She was living in Honiara. She was not married.
The Tribunal asked when he started having problems with [Ms A’s] family. He stated when he came to Australia, her brother did not like him and started talking to him on the telephone. He stated that he has a child with another woman.
The Tribunal asked if he started having problems with [Ms A’s] family not long after coming to Australia in January 2020. He conformed this was the case.
The Tribunal then asked why he was having problems with the family and why [Ms A’s] family did not want her seeing him at the time. He stated that they had a problem with him because they found out that he had a child with another woman from a previous relationship. This resulted in an argument with her family.
The Tribunal asked whether he left Honiara the second time to come to Australia in 2020 because of the family threats or problems with [Ms A’s] family. He stated no. He stated that he came to Australia because of the seasonal worker program. He came to work. But after he came to Australia, the phone calls became much worse while in Australia from her family. The calls came from [Ms A’s] brother. He told the applicant that he should stay away from his sister when he went back home.

The Tribunal asked whether [Ms A’s] brother threatened him in 2020. He stated that, when her brother was under the influence of liquor, he told the applicant that he must not see his sister. He said to the applicant by telephone that if he went back home, he would fight the applicant. The Tribunal asked how often [Ms A’s] brother would telephone the applicant in Australia. The applicant stated when he was under the influence of alcohol. This was not every week.
The Tribunal confirmed that the applicant went back to the Solomon Islands at the end of 2020. It asked him what happened after this. He stated that when he went back home, he saw [Ms A] again in Honiara. When he went back in 2020, he was still seeing [Ms A].
The Tribunal asked whether he stayed in this relationship until he came back to Australia in 2021. He stated that when he went back home, they did not stay together. She would just come over on weekends. She later became pregnant. This is when her brothers became involved. The Tribunal asked whether she became pregnant to the applicant. The applicant confirmed that she became pregnant to him. She told the applicant in May 2021 that she was pregnant. She was living in Honiara at the time. She was living with her uncle, brothers and cousins at the time.
The Tribunal asked what happened next after the applicant found out that she was pregnant. The applicant stated that he tried to help, but her brother did not like him. The applicant stated that she would usually come to his home and his family would support her at his home.
The applicant stated that [Ms A] had the baby, [Son A], when he was back in Australia. She is living in Honiara with [Son A]. She stays with her family. Her family have now asked the applicant for compensation. They are angry because there is a child involved. They asked for compensation when he was in Honiara. They first asked for $[amount] (Solomon Island dollars) and then asked for $[double that amount] (Solomon Islands dollars). They come from Malaita, so their bride price is high.
The Tribunal asked if between May 2021 to October 2021 his family welcomed her into their home. The applicant stated that her family stopped her from coming over to his home. The Tribunal asked whether he kept on seeing her before he came to Australia. He stated that they continued to see each other but not in public. They were hiding. They would find a place to rent for the night, away from everybody.
The Tribunal referred to his evidence where he said that he left for Australia in October 2021 because of the seasonal worker program and because he was threatened. He confirmed these were the two reasons for him leaving.
The Tribunal asked him again to explain how he was threatened on this last occasion.
[Ms A’s] family threatened to kill him or fight him and hurt him. He had to hide. The Tribunal queried whether he hid for several months. He stated that he hid for two months. He stated that he hid at his family’s home. The Tribunal put to the applicant that her family would have known where he lived. He stated that they knew where he lived. The Tribunal then asked how he would have hidden at his family’s home if her family knew where he lived and had threatened to kill him. He stated that he was not in danger so much in his home but more so outside the boundary of his home. The Tribunal queried whether he was actually hiding as they knew where he lived. He stated that they had to go to his province as they lived a long way from Honiara.
The Tribunal put to the applicant again that he was living at his family’s home, that [Ms A] lived in Honiara with some of her family in Honiara, and that they knew where he lived at his family home. The Tribunal indicated that if they knew where he lived at his family home, how could he be hiding from them if they knew where he lived. He stated that he was hiding in his house. This was his safety. If he went out of his home, he was threatened. The Tribunal asked whether he stayed in his home for two months without leaving. He stated that he hid in his car and did not have much freedom to move around. Only at night did he go out.
The Tribunal asked what the reason was for coming to Australia on the last occasion. He stated that he came to stay in Australia.
The Tribunal asked why he fears going back to the Solomon Islands. He stated that he does not have freedom in the Solomon Islands. [Ms A’s] relatives are dangerous people. If he goes back, he will die. The Tribunal asked why they are dangerous. He stated that they have bashed him [details specified].
The Tribunal indicated that it had taken him this long in the hearing and a number of questions asked of him a number of different ways before he stated that he was physically harmed. The Tribunal indicated that he made claims that he had significant harm done to him before he left. However, when the Tribunal put to him questions on several different occasions of why he feared leaving, he did not mention suffering physical harm from these people. The applicant stated that he was just thinking about it now at the hearing. They hurt him by bashing him [as specified].
When asked when this occurred, he stated that it occurred in August 2021, just before he came to Australia. It occurred in Honiara. The Tribunal asked him to explain how it happened. He stated that it occurred when he was in contact with [Ms A] and they found out that she was pregnant and they asked for compensation. Later on, he met them at [Location 1] in Honiara. A whole group of men from her family attacked him and hit him [as specified] and he ended up at the hospital. He confirmed that this occurred at [Location 1], Honiara. The Tribunal asked what time of day this happened. He stated that it occurred between 2pm and 3 pm. The Tribunal asked how many people attacked him. He stated about 9 people. When asked whether he recognised any people, he stated that he recognised [Ms A’s] uncle. After this, he could not recognise anyone else as he was unconscious. When asked how long he was in hospital for, he stated for 14 days at the [named] Hospital.
The Tribunal indicated that it might have concerns with his evidence at the hearing. It indicated that he had stated that the attack occurred in [Location 1], Honiara. However, in his written application, he stated that the attack occurred on the roadside on his way home. This might appear to be inconsistent with his evidence. The applicant stated that the roadside of the [Location 1] is on the way to his home. The [location is] not far from his home.
The Tribunal put to him that in his oral evidence he stated that the attacks occurred in the afternoon between 2pm or 3 pm. His written application stated that the attacks occurred in the evening. This evidence might appear to be inconsistent. He stated that he forgot but he thought it occurred either at 2pm, 3pm or 4pm or close to there.
The Tribunal put to him that in his application he stated that he was only attacked by [Ms A’] brothers and uncles. However, he stated at the hearing that he was set upon by 9 people and that he recognised the uncle but did not recognise anyone else. This evidence might appear to be inconsistent with his written claims. He stated that he recognised the uncle who punched him first. The others who were there were related to [Ms A].
The Tribunal put to him that in his written application which he stated was true and correct, he hid from house to house because of his fear of being killed. At the hearing he gave evidence that he stayed at his home and did not venture far from it. This might appear to be inconsistent with his initial claim. Further, it indicated to him that, in his application, he stated he was hiding from house to house but at the hearing he stated that he remained at home but only felt in danger if he left its boundary. The applicant responded that he did claim that he hid from house to house at the time. But he did not want to stay at his home all the time, because they might come to damage his home.
The Tribunal confirmed with the applicant that he stated that he was in hospital for 14 days. It put to the applicant that he claimed in his application that his only chance to survive was to leave for Australia. However, since arriving in Australia, since applying for a protection visa and since applying for a review at the Tribunal, there has been no medical evidence to support his medical injuries. He stated that he is still waiting for medical reports to come from the Solomon Islands and he will give it to his lawyer when they arrive. The Tribunal indicated that it might have concerns about this. It indicated that it might have expected that he had enough time to obtain medical reports since applying for protection. The Tribunal also indicated that it would need to weigh up any medical reports that might come to it at this late stage. The applicant stated that he came to Australia as a seasonal worker. Once applying for a protection visa, he has requested for a medical report and a police report, but he is waiting for these.
The Tribunal indicated that it might have concerns that he claimed that he came to Australia fearing for his life but delayed lodging his protection visa and not applying at the first available opportunity, as well as not providing evidence in support of his claims. The applicant stated that he did not know about protection visas. He only came to work as a seasonal worker. When he was threatened, he was waiting for his seasonal work visa to expire before applying. He was subsequently told by a friend that he could apply for a protection visa.
The applicant was asked when he was attacked before coming to Australia. He stated [two dates in] August 2021.
He confirmed that he hid from his attackers after the assault before coming to Australia. When asked what places he went to during that time, he stated that he would sit at the back of his house on his veranda. When asked whether he hardly moved from his home, he stated that during those two months he hid from his attackers. When asked whether he went to places outside his home while hiding, he stated that he did not go to the markets or shops during those two months that he was hiding from the attackers. When he moved around, he did so in a private car with tinted windows. He restricted his movements, for example going to his seasonal worker interview.
When asked whether he sought help after the attack, he stated that he saw his cousin who was a policeman. His attackers were very dangerous in Honiara. They were not afraid of the police. The Tribunal indicated that it had asked him in various ways about where he went to after the attack but that he has only just raised now that he went to see the police. It asked him whether there was a reason why he did not mention until now that he went to the police after his attack and not before. The applicant stated that he was confused between being threatened and the actual fight itself. These two differences have confused him.
The Tribunal indicated that in his application it asked whether he sought help within the Solomon Islands after he was harmed and he answered no to this. The application then asked him the details of why he did not seek help and he responded that he was too afraid to move around in public. Otherwise, his attackers would see him and kill him. The Tribunal indicated to the applicant that he made it clear that he did not seek any assistance or help in his application. However, at the hearing he has now mentioned that he did. The Tribunal asked for his comments to this inconsistency. He stated that he was a bit confused as to what was written. He stated that when he said no, he meant that the police did not assist him. They are very corrupt. To this day they have not helped him.
The Tribunal indicated that it would like to put some country information to him for his comment. Firstly, it referred to the US State Department Reports: Solomon Islands Human Rights Report which was published on 22 April 2024. The Tribunal indicated that it provided a somewhat favourable report on human rights in the Solomon Islands. It stated that there were no reports that the government or its agents committed arbitrary or unlawful killings. There were no reports of disappearances by or on behalf of government authorities. The law prohibited torture, inhuman or degrading treatment or punishment and other related abuses and there were no credible reports that government officials employed them. It reported that impunity was not a significant problem in the security forces. There were no significant reports regarding prison or detention centre conditions that raised human rights concerns. The constitution prohibited arbitrary arrest and detention and provided for the right of any person to challenge the lawfulness of their arrest or detention and the government generally observed these requirements. The constitution provided for an independent judiciary and the government generally respected judicial independence and impartiality. The law provided for the right to a fair and public trial and an independent judiciary generally enforced this right. There were no reports of political prisoners or detainees.[1]
[1] Country Reports on Human Rights Practices for 2023 United States Department of State • Bureau of Democracy, Human Rights, and Labor, Pages 1 – 4 (Published 22 April 2024)
It then referred to the Freedom of the World’s 2023 Report on the Solomon Islands which stated, among other things, that 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. [2]
[2] Solomon Islands: Freedom in the World 2023 Country Report | Freedom House
The Tribunal indicated that country information overall might suggest that there appears effective and efficient protection from the police and authorities which is available to him. Country information might suggest that state protection may be available to him if he returns to the Solomon Islands. The Tribunal invited his comments on this. The applicant denied this was the case. He stated that the report is from an observer who writes the report. He is from Honiara. He stated that Face book and even his family tell him now that there is drinking and fighting and that the corruption in the country has become worse.
The Tribunal indicated that country information might suggest that the police have the tools to charge and convict persons through the court system who are wanting to harm the applicant. The applicant stated that it was true that the police have the tools to do their duty. He stated, however, his attackers can cause problems in Honiara, and then simply run away back to Malaita so that they will not get caught.
The Tribunal then referred to the letter that he provided from the Solomon Islands police force. The applicant stated that he was aware of the letter and that it was from the “boss” of CID. When asked how he knew this person, he stated that, while his cousin reported it, the person who wrote the letter was from CID in the police force there. The Tribunal confirmed with the applicant that [Officer A name], the person who signed the letter, was the “boss” of CID police. When asked whether [Officer A] was the policeman he saw when he went into the police station, he stated that he was not. He stated that [Officer A] just signed the letter.
The Tribunal indicated that it will consider the letter carefully with all the other evidence before it. It indicated that it might have concerns with this letter for a number of reasons. For example, it indicated that the author of the letter does not give a specific date when the attack occurs, only that it occurred “during 2021”. The author does not identify himself as someone in charge of “CID”. He simply identifies himself as a “Police Officer”. The letter states that it originates from the “[Unit 1]” office and not from “CID” as stated by the applicant. The Tribunal also referred to the matters that had been raised already, such as possible concerns that he had not mentioned in his original application that he had sought help from the police, whereas in the letter it said that he did. The Tribunal indicated that all this might mean that it will need to consider what weight it should place on this letter, if at all. It indicated that it will need to consider all this together. It asked the applicant for his comments on this. The applicant stated that he was not really sure about the information in the police report because it had already been signed.
The Tribunal then referred to the letter from his “cousin brother” ([Relative A]). The Tribunal stated that it will need to consider this letter in light of the matters raised with the applicant at the hearing already. The Tribunal indicated that the letter only provides minimal contact details such as a “P.O. Box” number. The Tribunal indicated that it will have to weigh up how it considers the letter in context of the evidence that he has given to the Tribunal already. The Tribunal invited the applicant’s comments on this. The applicant simply stated “yes” when these matters were raised with him.
The Tribunal asked whether there was anything else he wanted to add in support of his claims. The applicant stated that he is worried about going back home and about the compensation to be paid. He stated that he wanted to stay in Australia and work.
The Tribunal indicated that it raised its concerns at the hearing and its concerns that might go to credibility of his claims. The Tribunal indicated that it wanted to also raise for his comments that he had time from when he applied for protection to the hearing itself to provide more information and evidence, even when requested. He had the opportunity to provide more evidence at the departmental stage, when he lodged the review application, and in subsequent letters to provide any supporting evidence. The Tribunal asked the applicant whether he had any comments as to why he has not provided further information or further evidence since the application was lodged. The applicant stated that he found it difficult to get further information or documents, that he was working 12-hour shifts, that he was working in Western Australia and that there was a time difference between the Solomon Islands and where he was living. When asked how long he was working in Western Australia for, he stated that he had been working there for 8 months.
The Tribunal then spoke with the authorised representative and indicated that it was happy to provide her with 14 days to provide further submissions. It then asked the authorised representative whether she had anything else she wanted to say in support of the applicant. She indicated that she would put some time in putting together a statutory declaration from the applicant. She stated that there was nothing else she wanted to say at this stage.
Post hearing submissions
The applicant’s authorised representative provided the following further documents in support of the applicant’s claims for protection which the Tribunal has carefully considered:
a.Medical report from the “[Hospital 1]” dated [a day in] June 2024 relating to the applicant (marked as a “true copy” of the original seen by a “Commissioner for Oaths – Solomon Islands”). The medical report reads as follows:
Re: Medical Report for [the applicant]
The above name patient was (sic) sustained head injury and admitted at [Hospital 1] Emergency department on the [specified date range in August] 2021 after a fought (sic) due to girl boy relationship.
He was later discharged with subsequent follow up visits until he was fully recovered.
Therefore, I was asked to write a report to your authority to assist him during his staying and working in Australia.
… … …
b.Same medical report dated [the same day in] June 2024 (as above) without certified stamp on it.
c.Letter from [Relative A] dated [in June] 2024, (marked as a “true copy” of the original seen by a “Commissioner for Oaths – Solomon Islands”). This was the same letter presented to the Tribunal prior to the 13 June 2024 hearing.
d.Police report from [Officer A] dated [in June] 2024, (marked as a “certified copy” in the Solomon Islands), which had previously been provided to the Tribunal at the time of hearing.
e.“Statutory Declaration” from “[Relative A] of [Community 1] community” declared at “Honiara” on 10 July 2024 stating that the applicant was known to him as his “casin (sic) brother” and provided the applicant’s date of birth and that he was born at “[Hospital 1], Honiara, Solomon Islands”.
f.Letter from [Relative A] dated 10 July 2024. The letter has no contact details except a P.O. Box address in Honiara. There are no other identifying features in the letter. There is a signature at the bottom of the letter under the name “[Relative A]”. Much of the letter is word for word as the letter written by [Relative A] on [in June] 2024. New information has been added in the 10 July 2024 letter. The letter can be summarised as follows:
·     He identifies himself as presently living in [Community 1 variant], East Honiara
·     He states that he is writing the statement on behalf of his “cosine brother” who resided with the applicant at the time.
·     He states that the applicant “in 2021, was having a relationship with a girl by the name of [Ms A] at that time”.
·     The parents and family of [Ms A] “from Malaita Province” did not accept the applicant dating her and demanded compensation from him.
·     The continued relationship between the applicant and [Ms A] resulted in an incident that has not been resolved by the parties.
·     “One evening when [the applicant] walked back, he encounter[ed] a group of [men] on the road side, knowing to be the close relatives of [[Ms A]].”
·     An argument ensued from this encounter and, during the confrontation, the applicant was attacked and sustained [specified injuries] and was rushed to the [Hospital 1] for emergency attention.
·     He was later discharged from the [Hospital 1] emergency ward and attended each day for fourteen (14) says to have his wounds dressed.
·     The applicant continues to be threatened by [Ms A’s] family.
·     “During the height of the situation”, the applicant remained “in-home (inside the house) for the whole day and some nights and at times [[Relative A]] move[d] [the applicant] to some of [their] relatives houses and friends to [give] him a good and healthy environment to live in other than the same house and to avoid the relatives of [[Ms A]] to detect [the] whereabouts of [the applicant]…was [hiding].”
·     The matter has not been resolved.
·     Now that the applicant is in Australia, [Relative A] believes that the applicant “must stay in Australia” and “live a better life than … in the Solomon Islands”.
·     If the applicant returns to the Solomon Islands “they will chop off his head”.
·     He believes the applicant to be of “hard work”, good character, discipline” who is supporting his family back in the Solomon Islands.
Analysis, reasons and findings

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.[3] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[4]
[3] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
[4] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
In particular, the Tribunal notes the following guidelines:
7. The tribunal is not bound by legal forms and technicalities or the rules of evidence. The tribunal considers all of the evidence available in order to make the correct or preferable decision. Evidence is assessed in its entirety, not just in isolated parts. The tribunal assesses evidence by weighing up its probative value and relevance to an applicant’s claims. There is no requirement in law that evidence must be independently corroborated before it can be accepted by the tribunal.
8. The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person [who] meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
… …
27. Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. The tribunal will consider all the evidence before it to assess whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.
28. When forming a view on the credibility of claims, the tribunal should consider the overall consistency and coherence of an applicant’s account.
… …
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 persecution or significant harm.
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. The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.
Having considered all the evidence before it, and in its entirety, the Tribunal does not find the applicant to be credible in his claims at all for the reasons given below.
The applicant made it clear at the hearing that he recalled the claims made in his protection visa application, that all the information and claims made in that application were true and correct, and that they were the claims that he wished to raise at the hearing. He also claimed that he received assistance from a friend who helped him put together his application.

100. On the evidence before it, the Tribunal has significant concerns about the credibility of the applicant’s claims which are that he had a relationship with a woman from Malaita called [Ms A] (surname given) commencing New Years Eve, 2020 in Honiara, that a physical confrontation occurred in August 2021 in Honiara with [Ms A’s] relatives and family members, that he sustained head injuries as a result of the confrontation, that he was subsequently taken to emergency at the [named] Hospital, and remained there for 14 days to heal or that he received treatment over a 14 day period, and that he subsequently reported the attack to police. On the evidence before it, the Tribunal has significant concerns about the credibility of his claims that [Ms A’s] relatives and family members demanded substantial compensation from the applicant because of his relationship with [Ms A] and because she was pregnant to him, that their threats to kill the applicant forced him to either hide for at least two months or to move from house to house, and that [Ms A’s] relatives have continued with these threats to him while he has been living in Australia.
101. The Tribunal finds it significant that, after coming to Australia [in] October 2021 having “left his home country because [he] was brutally attacked by a group of men and was fighting for his life before [he] fled to Australia”, he eventually lodged his protection visa application on 11 November 2023, a little over two years after first arriving in Australia. The significance of this delay is further enhanced by his oral evidence that he applied a second time for a seasonal workers visa to extend his stay a further 9 months and that he applied for a protection visa because his second seasonal workers visa was about to expire.
102. The Tribunal has considered the applicant’s response that he wanted to wait until his “ordinary visa” expired, and that an agent had applied for him and his group for an extension on that visa. However, given these responses, the Tribunal does not accept that if he was genuine in his fear of suffering serious harm or significant harm were he to return to the Solomon Islands, and having made the written claims (which he stated at the hearing were true and correct) that he fled to Australia after having claimed to have suffered significant injuries, and after giving oral evidence that he did not want to go back to the Solomon Islands because of the threats made against him, that he would have waited such a significant period of time (a little over two years) to eventually lodge an application for a protection visa, as well as applying, in that period, for an extension on his seasonal workers visa and waiting until near the expiry of the second seasonal workers visa to finally apply for a protection visa. The Tribunal finds that the applicant had the ability and knowledge to apply for a protection visa given his own actions of completing and applying for protection through the assistance of a friend on 11 November 2023.
103. The Tribunal does not accept his response that he did not know about protection visas. The Tribunal notes that the applicant provided evidence that he had travelled to Australia on visas on at least two different occasions prior to last arriving in Australia [in] October 2021, that he applied for, and was granted a seasonal worker visa in the Solomon Islands, that he applied for a further extension of that same visa in Australia through an agent in Australia, before applying for a protection visa just prior to his extended seasonal workers visa expiring. On this evidence, the Tribunal finds that the applicant was well aware of the Australian visa system and does not accept that he did not, or could not know about a protection visa in Australia.
104. The Tribunal considers the time period (a little over two years) that elapsed between the applicant’s arrival in Australia and the time when he applied for protection, his lodgement of an extension of the seasonal workers visa for a further 9 months, and his lodgement of a protection visa near the expiry of the second seasonal workers visa as going to the genuineness or extent of the applicant’s subjective fear of suffering serious harm or significant harm. It finds that this significant delay, his actions of applying for an extension of his seasonal workers visa, and his applying for a protection visa near the expiry of his second seasonal workers visa as going to the credibility of his claims.
105. The Tribunal finds it significant that, after arriving in Australia [in] October 2021, and after living in Australia for a little over two years, and after having claimed that he fled the Solomon Islands for fear of his life, that he only made vague and minimal claims in his protection visa application and did not provide any evidence in support of those claims until 10 June 2024, some three days before the hearing, as well as only providing further supporting documents post-hearing after the Tribunal raised concerns about the credibility of his claims. The Tribunal has carefully considered all these supporting documents in light of the applicant’s own oral and written evidence and, therefore, gives no weight at all to these supporting documents. The Tribunal provides its reasons for this finding later for each supporting document that has been provided by the applicant.
106. The Tribunal finds it significant that the applicant, having remained in Australia for a significant period of time and having raised serious claims about his fear of returning, could only provide the bare minimum of claims, and no supporting evidence at the time of lodgement, even though he had the opportunity to provide additional information and evidence when invited by the department in its acknowledgement letter dated 14 November 2023, as well as being invited by the Tribunal to provide any supporting documents or information in its acknowledgement letter of 28 March 2024 immediately following lodgement of his review application. The Tribunal notes his response that he had been working in Western Australia for 8 months and was working 12-hour days which made it difficult for him to provide further information and documents. While the Tribunal has considered this response it does not change the fact that the applicant had a little over two years from when he first arrived in Australia to obtain all the information and documents that he needed in support of his protection visa application.
107. Moreover, his authorised representative, in her email dated 4 May 2024, stated that the applicant was working in regional Australia until mid-June 2024. Working backwards by 8 months (the period of time the applicant stated in oral evidence that he had been working in Western Australia), the applicant began working in Western Australia just after he lodged his protection visa application. This is also consistent with his protection visa application that he was not working at the time of lodgement of his application. Following lodgement of his protection visa application, given that he has engaged in the process at both the department and Tribunal stages such as receiving the department’s refusal notification and being able to subsequently lodge a review application, and given that he was able to obtain the services of an authorised representative to assist him at the time of lodgement of his review application, the Tribunal finds that the applicant has had the ability and time to provide further documents and information following lodgement of his protection visa, and that he chose not to do so until just prior to the Tribunal hearing.
108. The Tribunal finds it significant, therefore, that the applicant has only provided vague and brief claims in his protection visa application and that he has delayed in providing additional information at the time of application of his protection visa and also when invited to do so by the department and the Tribunal in their acknowledgment letters, and that any supporting documents was not received until 10 June 2024 (some three days before the hearing), and 2 years and 8 months after arriving in Australia and nearly 8 months after applying for review of his department decision at the Tribunal.
109. The Tribunal has considered all the evidence before it and has given particular consideration to his written claims (which he stated were true and correct at the start of the hearing) and his oral evidence at the hearing and has assessed that the contradictions and inconsistencies of evidence that have arisen between the two as being material to the applicant’s claims (in their entirety) and therefore go to the credibility of his entire claims.
110. The applicant has provided vague written claims at the time of his application and has attempted to provide further oral evidence in support of those claims at the hearing. However, the Tribunal found that significant inconsistencies and contradictions arose between his original claims (which he stated were true and correct at the start of the hearing when provided the opportunity to correct them) and his oral evidence when enquiring further about his claims made at the hearing.
111. He claims in his written claims that he was approached “one evening” and was attacked by “her brothers and uncles”. At the hearing, he provided inconsistent evidence that he was attacked between “2pm and 3pm”, which was in the early afternoon. When this inconsistency was put to him for his comment, he provided evidence that “he forgot” the time and that it occurred anywhere between 2pm to 4pm or close to that time. The Tribunal finds it reasonable that he would know whether he was attacked in the bright of day in the early afternoon or in the evening. It does not accept his response as credible and finds that he has provided the response to enhance his claim once it was brought to his attention.
112. He claims in his written claims that he was attacked by [Ms A’s] brothers and uncles. At the hearing, he gave evidence that he was set upon by 9 people and that he only recognised the uncle before falling unconscious. When this inconsistency was put to him for his comment, he provided evidence that he recognised the uncle who punched him first and that the others there were related to [Ms A]. The Tribunal does not find his response to answer the inconsistency raised as credible and only given by him to enhance his claim once it was brought to his attention.
113. He claims in his written claims that he was attacked in the [Location 1]. At the hearing, he gave evidence that he was attacked on the roadside on his way home. When this inconsistency was put to him for his comment, he provided evidence that the roadside of the [Location 1] was on the way to his home. The Tribunal finds his response as contrived in an attempt to explain the inconsistency and that no mention of the attack occurring at the markets was made in his evidence at the hearing until it was raised with the applicant. It does not accept his response and finds that he has provided the response to enhance his claim once it was brought to his attention.
114. He claims in his written application that he hid from house to house after the attack and after being released from the hospital. At the hearing, he gave evidence that he stayed at his home and did not venture from it and that he would sit at the back of the house on his veranda. When this inconsistency was put to him for his comment, he provided evidence that he did claim that he hid from house to house at the time but that he did not stay at his house all the time. The Tribunal does not find his response to answer the inconsistency raised as being credible. The Tribunal finds that he has given two conflicting accounts of events, namely hiding from house to house to avoid his attackers (as written in his application), or remaining at his home because he felt in danger if he left his boundary and that he hid from his attackers for two months at his home (as given in oral evidence at the hearing).
115. Furthermore, the Tribunal has concerns about the applicant’s evidence provided at the hearing about him hiding at his home for two months after he claimed to have been attacked. He had initially given evidence at the hearing that [Ms A’s] family knew where he lived. Yet, he gave evidence later that he hid at his home for two months after the attack. The Tribunal does not find this credible at all given that he gave evidence that [Ms A's] family knew where he lived and that [Ms A] also knew where he lived. It does not accept his later evidence that he was not in danger inside his home and only when he went outside the boundary of his home. Given his contradictory response (that he was safe at his home except for outside his boundary) came after it was put to him that his initial written claims of hiding from house to house out of fear contradicted his oral evidence that he hid at his family home for two months, the Tribunal finds this claim as not credible and added to enhance his overall claim. The Tribunal finds his other responses, when the inconsistencies were put to him, that he moved around in a private car with tinted windows as being contrived and an attempt to enhance his claims.
116. He claims in his written application that he did not seek help from the police or authorities and that he did not do so because be believed that they would not help him. He also made claims that he did not seek help because he was too afraid to move around in public, otherwise he would be seen and killed. At the hearing, he gave evidence that he saw his cousin who was a policeman following the attack. When this inconsistency was put to him for his comment, he provided evidence that he was confused between being threatened and the actual fight itself. The Tribunal finds his response as contrived in an attempt to explain the inconsistency given that he was unequivocal in his written claims that he did not seek help from the police or authorities but that at the hearing he claimed he did. It does not accept his response and finds that he has provided the response to enhance his claim once it was brought to his attention.
117. The Tribunal has considered the police report from “[Officer A]” dated [in June] 2024. It notes the applicant’s evidence at the hearing that the author of the report was written by the “boss” of CID police in Honiara, and that he was not the police officer who he reported the attacks to, and that it was his cousin who reported it. The Tribunal notes several concerning features in the letter. It was addressed as coming from the “[Unit 1]” in contrast to the applicant’s oral evidence that [Officer A] was the head of CID. The letter does not refer to [Officer A] in any way as the head of CID. In fact, the author of the letter refers to himself as a “Solomon Islander (Police Officer) but not as any head of CID. The author does not provide a specific date of the incident; only that “he knew” the applicant in 2021 at the police station when he was attacked by “some people” from “Malaita”. The applicant gave evidence at the hearing that [Officer A] was not the person he saw when he walked into the police station to report the attack, which is inconsistent with the police report which states that he “knew [the applicant] during 2021 at the police station when he was attacked by some people from Malaita”. Given these considerable concerns relating to the internal inconsistencies within the letter, the inconsistencies between the contents of the letter and the applicant’s evidence, given that the letter was obtained just prior to the hearing, and given that the Tribunal has already made findings that it does not find credible that the applicant ever went to the police about any claimed attack, the Tribunal gives no weight at all to this police report when considering the applicant’s claims.
118. The Tribunal has considered the letter from [Relative A] dated [in June] 2024 and 10 June 2024, as well as considering a statutory declaration dated 10 July 2024 from him as well. When considering the [June] 2024 letter, the Tribunal notes that the letter was obtained by a family member (a cousin) who did not give evidence at the hearing and has written a letter in support of the applicant’s claims just a few days prior to the hearing. The Tribunal has significant concerns with the contents of both letters. In his first letter, the applicant’s cousin does not provide a specific date of when the incident occurred and that the incident “happened in 2021”. He never refers to [Ms A] by name but only as the generic term of “girl”. The Tribunal finds that the [in June] 2024 letter is generic in its detail, that he does not provide any knowledge of relevant specifics such as the name of the girl in question and the date of the claimed attack on the applicant. The applicant does not identify himself in any way and he has written a letter just a few days prior to the hearing.

119. Moreover, the Tribunal has more concerns with the 10 July 2024 letter as it is signed after the hearing. The Tribunal finds that the letter is written in an attempt to answer concerns raised by the Tribunal with the applicant at the hearing and not as someone who had knowledge of the claims at hand. He also provides inconsistent written information to the evidence provided by the applicant at the hearing. Thus, in the 10 July 2024 letter, he now includes the full name of [Ms A], which was only revealed by the applicant after the Tribunal asked the applicant for her full name at the hearing. He adds the further claims of “compensation” and “dating” relating to the applicant which were not included in the [in June] 2024 letter. He added more specific details that the applicant encountered a group of men while walking on the roadside one evening. This was not included in his first letter at all. It is also inconsistent with the evidence provided by the applicant at the hearing whereby the applicant states that it occurred either at 2pm or 3pm in the afternoon. He states that during the “height of the situation” the applicant remained inside his home for the whole day and some nights as well and that he moved around among relatives and friends to avoid the relatives being able to find him. None of this was ever mentioned in his [in June] 2024 letter and has only been included after the Tribunal raised concerns about the applicant’s inconsistent evidence of first moving from house to house to then hiding at his home, to then hiding at his home but not leaving its boundaries.
120. The Tribunal is willing to accept that the statutory declaration declares [Relative A] as the applicant’s cousin. This adds more weight to the Tribunal’s findings that the letter has been written solely to enhance the claims of the applicant, given the closeness of [Relative A] as a family member to the applicant.
121. Given these concerns relating to the internal inconsistencies within the letter, the inconsistencies between the contents of the letter and the applicant’s evidence, and given that the letter was obtained just prior to the hearing and post-hearing after considerable concerns were raised with the applicant about certain claims, and given that the Tribunal has already made findings that it does not find credible that the applicant was ever involved in any claimed attack, the Tribunal gives no weight at all either to the [in June] 2024 letter or the 10 July 2024 letter when considering the applicant’s claims.
122. The Tribunal has considered the medical report provided post hearing and dated [in] June 2024. Given its findings already about the lateness of providing evidence in support of his claims, and given that the applicant has had considerable time to obtain a medical report about his claimed injuries after he arrived in Australia in October 2021 and also after lodging his protection visa application in November 2023, the Tribunal has significant concerns by this report and how it is written.
123. The medical report has been provided post-hearing and presented in a way that does not identify the specific injury to him (it simply states that he “sustained a head injury”). It states that he was admitted “on the [date range in August] 2021” which is a two-week period, and not on any particular day. It states that there were “subsequent follow up visits” which is vague in whether there were follow up visits after 25 August 2021. It poorly attempts to explain the reasons for the injuries as arising “after a fought (sic) due to girl boy relationship”. The Tribunal finds it highly unusual that a medical report would attempt to poorly identify that the injuries arose out of a fight between a “boy” and a “girl” caught up in a “relationship”. The Tribunal finds that the letter written after the hearing of this matter is an attempt by the author to assist the applicant in enhancing his claims. In any event, given that the Tribunal has found on the applicant’s evidence that here were no injuries sustained by the applicant nor did he ever present himself to a hospital as a result of any injuries arising from an attack from [Ms A’s] relatives, the Tribunal gives no weight at all to this medical report when considering the applicant’s claims.
124. Given the Tribunal’s findings above, it finds that the supportive documents provided at a very late stage have been produced simply to enhance the applicant’s claims. The Tribunal therefore gives them no weighting at all in its consideration of the applicant’s claims.
125. Having considered all the claims above separately and cumulatively, the Tribunal finds that there are significant credibility concerns relating to each and every one of the applicant’s claims and to his claims as a whole.
126. Given these credibility findings both individually and cumulatively, the Tribunal does not accept that:
·     the applicant had a relationship with a woman from Malaita ([Ms A]) which started on New Years Eve in 2020 in Honiara.
·     a physical confrontation occurred in August 2021 in Honiara with [Ms A’s] relatives and family members as a result of his relationship with this woman.
·     the applicant sustained head injuries as a result of an attack from [Ms A’s] relatives.
·     the applicant was subsequently taken to the [Hospital 1], remained there for 14 days to heal or that he received treatment over a 14 day period, and that he reported the attack to police.
·     the applicant either hid at his home or that he went from house to house to hide from [Ms A’s] relatives.
·     the applicant came to Australia because he feared for his life.
·     [Ms A’s] relatives and family members demanded substantial compensation because of his relationship with [Ms A] and because she was pregnant to him.
·     their threats to kill the applicant forced him to either hide for at least two months or to move from house to house.
·     [Ms A’s] relatives have continued with these threats to him while he has been living in Australia.

127. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
128. The Tribunal finds that:
a.The applicant is a citizen of the Solomon Islands and a non-citizen in Australia.
b.The applicant has no credible claims for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.

129. The Tribunal finds on the evidence therefore that if he is returned to the Solomon Islands, there is no real chance that he would be persecuted because of his relationship with a woman from Malaita or for any other reason, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
130. The Tribunal finds on the evidence that the applicant can return to Honiara and live in his family home with his family members there.
131. Given that the Tribunal has found the applicant’s claims not to credible at all, it finds that there do not exist substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Solomon Islands, there is a real risk that he will suffer significant harm.
CONCLUSION
132. 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).

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).
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

135. The Tribunal affirms the decision not to grant the applicant a protection visa.
Clyde Cosentino
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4107

30 September 2024

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Immigration

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