2405430 (Refugee)

2405430 (Refugee) [2024] AATA 2226 (23 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  2405430
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Kate Chapple
DATE:23 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

Statement made on 23 May 2024 at 11:55am
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – membership of particular social group – woman in bride-price marriage and victim of domestic violence – arranged marriage with older man – bride price and emotional, physical and sexual abuse and violence – police safety notice and restraining order – no opportunity to relocate in small country with customary land ownership – supporting statements from relatives – consent to decision without hearing – vulnerable person – country information – gender inequality and gender-based violence – societal attitudes and under-resourcing and inaction by police – delay in applying for protection – learned about protection visa from friend – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 5H(1)(a), 5J(1), 36(2)(a), 425(1), (2)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Makouei v MIMA (unreported, FCA, Wilcox J, 6 February 1998)
Selvadurai v MIEA (1994) ALD 346
Subramanian v MIMA (unreported, FCA, Carr J, 10 March 1998)
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.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application lodged 16 September 2023 setting out the following claims (spelling and grammatical errors not corrected):
1.1.[reason applicant left Solomon Islands] Leaving my country as a seasonal worker was indeed a great opportunity to escape the consistent threats that I have been facing in an arranged marriage that I have been trapped in. My parents have forced me to get married to a man who is far matured than myself and he is very abusive and violent. There is nothing I could do to break-free from as bride price has already been paid. There have been times when I have been woken up unconsciously because of being abused.
1.2.[harm experienced by applicant in Solomon Islands] I have been experiencing harms because of abuse and violence because of force-marriage. The man I was forced to marry has been constantly abusing me.
1.3.[help sought by applicant in Solomon Islands] I have sought the help from the police on few occasions but there has never been any response or action taken.
1.4.[reason applicant didn’t relocate within Solomon Islands] There has never been a chance for me to leave or go anywhere as he is very authoritative and could not let go of me.
1.5.[what applicant thinks will happen to her if she returns to Solomon Islands] If I return home, I will potentially be killed. I have tasted death many times and to return to this man will be the end of my life.
1.6.[harm or mistreatment applicant thinks she is likely to experience if she returns to Solomon Islands] If I return to my country, I will be harmed or even be killed by my violent and abusive husband. Since bride price has been paid, he will always regard me as his property.
1.7.[reason applicant thinks Solomon Islands authorities won’t protect her] In our country there is a system in every sector that is known as 'wantok system' which is eroding the efficiency and the purpose for which those systems are being designed, and thus unable to serve the people. This wantok system allows or forces even the authorities that are supposed to protect the people to only serve the citizens who are genetically related to them. Not only the wantok system is the problem, but ultimately, due to low remuneration, even those in authority are forced to serve only if they are being paid by the citizens who seek their help. In my case, this is exactly happening. I have reported my case to the police but due to the fact that I am not related to anyone in the police force, no action was taken to resolve my case.
1.8.[reason applicant thinks she can’t relocate within Solomon Islands to an area where she won’t be harmed] To relocate to any place within my country is impossible due to customary land ownership. This system of land owning does not allow anyone to relocate to other places which they are not genetically related to the people or the tribe. Not only that, but also because my husband is very dominant and authoritative.
Accompanying statement by applicant titled, ‘Further information to support my protection visa claim’ (spelling and grammatical errors not corrected):
I have arrived in Australia [in] November 2022 as a seasonal worker. I went to work in [State] and live at [Address]. For the whole season that I was working as a seasonal worker, I never knew that people facing such situation as mine are able to apply for protection under Australian Law subregulation 866.211 Migration Regulation (Cth) 1994. I only knew from a friend that I can seek protection under Australian Law. As stated in my claim for protection visa, I was given in an arranged marriage, and my husband has continuously been abusing me since his family paid a huge bride price for me to my parents on August [date] 2022.
Detailed Information about my Marriage.
The name of my husband is [name omitted]. He was born on [Date]. He is from a village known as [Village] in [Area], [Province] Solomon Islands but he lives at [Location, Town] with his relatives. We have never had any relationship before our marriage; it was all arranged by his parents and my parents. [Husband’s name omitted] is the first born of his family, his parents decided that he should get married as they are growing older. His father coincidently met my father at central market in [Town], and began a conversation and friendship that eventually led to our marriage. After days and weeks of conversations between both of our parents, a huge bride price was paid to my parents for me to get married. All this was taking place without my knowledge nor my consent. But to show honour and respect to my parents, I had to get married to a man I never met or knew before. Bride price was paid, and all traditional feasting was already happening, but for me, I had so much fear and worry within me, but I had to endure it all for sake of pleasing my parents. On [date] August 2022 we got married. Our marriage occurred because of bride price, and hence, there is no marriage certificate to present to the Department as a proof.
Abuse and violence
After we got married, three days later he started getting angry at me for things that not worth getting angry for. He started beating and sexually abusing me. There were times he would beat me until I became unconscious. Almost every day he would beat me and sexually abuse me. There was nothing I could do as I was living with him and his relatives. I ended up in the hospital once [in October]. He beat me until I was unconscious, I could not retrieve my conscience quickly and so a cousin sister of his rushed me to the hospital in a taxi. He continued beating me and abusing me two days after that incident. There were many times I took refuge at my uncle’s home which is about 2 kilometres from where we live. I would stay at my uncle’s house for a day and then go back to my husband because his parent paid a large amount of money for my bride price. There was so much more abuse and violence that I have received from my husband than what words can express or describe, and so I will provide additional information regarding a general perception from our country’s law in relation to abuse of women.
As reported in the 2012 Country Reports on Human Rights Practices – Solomon
Islands:
‘Violence against women, including rape and domestic abuse, remained a serious problem but was underreported. Among the reasons cited for the failure to report incidents of abuse were pressure from male relatives, fear of reprisals, feelings of shame, and cultural taboos on discussion of such matters.
The maximum penalty for rape is life imprisonment. Spousal rape is not a crime. As part of the police curriculum, officers received specialized training on how to work with rape victims. The police have a Sexual Assault Unit, staffed mostly by female officers, to combat the problem.
The law does not specifically address domestic violence; however, there are provisions against common assault. Although statistics were unavailable, incidents of domestic violence appeared to be common, and police confirmed that they received domestic violence complaints every week. During the year citizens filed 245 complaints with the Family Violence Unit.
In the cases of domestic abuse that were reported, victims often dropped charges before the court appearance, or the case was settled out of court. In cases in which charges were filed, the time lapse between the charging of an individual and the subsequent court hearing could be as long as two years. The magistrates' courts dealt with physical abuse of women as with any other assault, but prosecutions were rare.’¹
As gender-based violence against women in the Solomon Islands has been well entrenched in our culture, it is believed that 63% of men believe it is acceptable to hit women in certain circumstances; 2 out of 3 women have experienced physical violence from an intimate partner.²
It is reported that levels of violence against women in Solomon Islands are among the highest in the pacific region. More than half of all women have experienced sexual violence by an intimate partner and 64% aged between 15 and 49 have experienced violence in the home.³
1 2012 Country Reports on Human Rights Practices - Solomon Islands
Stand Up and Fight, Addressing Discrimination and Inequality in Solomon Islands.
align="center">Fund for my trip to Australia
My trip to Australia [in] November 2022 was funded by my uncle [name omitted]. He does not have much, but he thought it is good for me to escape the violence and abuse I used to face every day from my husband. He works as [occupation]. My preparation to travel to Australia was only known by my uncle. I am not aware whether not he told my parents, but he was the only one who knew about my coming to Australia. My husband had no idea that I was traveling to Australia.
Reasons that make relocation impossible for me
There are a number reasons that would make relocation to other places within Solomon Islands impossible for me.
1. As stated in my claim, in Solomon Islands, lands are owned by tribes. They are customary owned. There is no way I could relocate to other places that I am not related to.
1. My parents have received a bride price for me. It would be a disgrace and disrespect to my parents to leave the man that has paid them hugely. That perception has kept me to my husband still though I was being abused. I am not the only woman that this spell of bride price has bound; it is a strong cultural norm.
As reported by the Amnesty International in 2004:
Among the most frequent explanations women put forward to Amnesty International for the violence and discrimination they suffer at the hands of men is the traditional of a ‘bride price’ given to the parents of a bride at her wedding by the parents of the groom. While customs on “bride price” vary according to provinces and language groups, women interviewed by Amnesty International that the practice encourages an attitude in husbands to treat wives like property: “As a wife, she is expected to be subordinate to and obey her husband…She is at the mercy of her husband, who paid bride price for her…” Some Malaitan men confirmed this perception and added that a young husband was under pressure from the male community and his relatives to show his ability to “control” his often teenage wife, including through violence.⁴
View or findings of the World Health Organisation regarding gender-based violence (GBV) and bride price in Solomon Islands:
‘The causes of GBV are multiple, but it primarily stems from gender inequality and it manifestations. In Solomon Islands, GBV has been largely normalized: 73% of men and 73% of women believe that violence against women is justifiable, especially for infidelity and “disobedience”, as when women do not live up to the gender roles that society imposes…Men cited acceptability of violence and gender inequality as two main reasons for GBV, and almost all of them reported hitting their female partners as a “form of discipline,” suggesting that women could improve the situation by “[learning] to obey [them].” Another manifestation and driver of gender inequality in Solomon Islands is the traditional practice of bride price. Although specific customs vary between communities, paying a bride price is
considered similar to a property title, giving men ownership over women. Gender norms of masculinity tend to encourage men to “control” their wives, often through violence, while women felt that bride prices prevented them from leaving men.⁵
In its 2017 report, United States Department of State reported that customary bride-price payments continued to increase and contributed to the perception of male ownership of women.⁶
1. I knew no one else to go to. I could not return to my parents nor my uncle as
they would not accept me in. Bride price has cut me off from them.
4 Amnesty International 2004 Solomon Islands: women confronting violence World Health Organisation, 19 October 2011, Gender-based violence in Solomon Islands. 2017 Country Reports on Human Rights Practices: Solomon Islands details and addresses of applicant’s family members]
[reference to three supporting documents – listed below]
Police cannot protect me
Police will not be able to protect me because of number of reasons. One of these reasons is a system known as a ‘Wantok system’. This system or practice is so common in our society; and it is the practice that the police would only help to protect me if I am a relative of them (the officers), or if I have money to bribe them, they could give me certain degree of protection. I refer to Document 3 as you can see, violence and abuse that I have been receiving from my husband has been reported to the police, but nothing was done about it. I am also providing you (see below) some contemporary and historical information about police attitudes towards violence against women - to help you understand the fear I am
experiencing.
Lack of resources limits provision of legal counsel and hinders conduct of timely trials. The same problem plagues the Ombudsman's Office in its investigation of official abuse and corruption.
The police force has historically lacked training, suffered from factional and ethnic rivalries, and drawn accusations of brutality. The police were disarmed in 2003 because of involvement in criminal activity as well as violence between the two dominant ethnic groups in 1998-2003.⁷
7 Freedom House, Freedom in the World 2016 - Solomon Islands, a report “Solomon Islands battles epidemic of family violence” on The Weekend Australian Magazine on 14th December 2019, Kathy Marks reported the horrendous violence against women silently occurring in Solomon Islands in the presence of some police officers⁸:
[quoted extracts from 8 Solomon Islands battles epidemic of family violence,
are the same experiences that I have through with my abusive husband. I was fortunate at times that I would escape quietly to take refuge at my uncle’s home, but then because of the bride price that he paid to my parents for me, I always returned back to him.⁹
9 refworld: Equal Rights Trust, Stand Up and Fight: Addressing Discrimination and Inequality in Solomon Islands, January 2016, align="center">Conclusion
In conclusion, I fear returning home to Solomon Islands as there is no one to protect me from my abusive and violent husband. As you can see from all the historical and contemporary information I have provided, I cannot trust the police and the law, for they cannot protect me. My parents and my relatives will not be able to protect me either due to bride price that was paid to my parents.
As such I sincerely seek the Law of Australia to protect me.
‘Statutory Declaration’ by the applicant’s uncle (unsigned however purportedly witnessed and dated 5 November 2023) in the following terms:
‘Statutory Declaration’ by the applicant’s [brother] (unsigned however purportedly witnessed and dated 13 December 2023) in the following terms:
Statement by a named police officer of [Police] Head Quarter (signed):
This statement made by me accurately sets out the evidence I would be prepared to give in Court as a witness.
I make it knowing that if it is tendered in evidence, I shall be liable for prosecution if I have stated in it anything which I know to be false or do not believe to be true.
With regards to the victim [the applicant’s] case, it was first and last reported on the month of August [date] 2022.
The matter was actually reported by relatives for mediation on both parties, and as a result Police issued Police Safety Notice (PSN) and a Restraining Order from Public Solicitor to the offender.
Since then, nothing has been reported as breach to the Police until today [December] 2023.
Inline to the above stated, before me [officer’s name] in-script below as truly.
Decision record dated 1 March 2024 relating to the delegate’s refusal decision.
Departmental case file relating to the applicant.
Application for review
Application for review lodged 19 March 2024.
The Tribunal wrote to the applicant inviting her to attend a hearing on 23 May 2024 and to provide pre-hearing submissions.

Prior to the hearing, the applicant provided to the Tribunal the signed Hearing Response dated 16 May 2024 in which she marked the box instructing that: “No, I will not be participating in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear”.
Decision on the papers
Section 425(1) of the Act provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425(2)(b) provides that subsection (1) does not apply if the applicant consents to the Tribunal deciding the review without the applicant appearing before it.
This decision record is a record of the Tribunal’s consideration of the claims and evidence, reasoning and decision conducted and determined on the papers in the absence of a hearing.
Country information
The Australian Government Department of Home Affairs Thematic Paper, Gender-based Violence in the Pacific Region, effective 5 May 2023 reports the following in relation to Solomon Islands at pages 8-9 (footnotes set out in Attachment B to this decision record):
Prevalence
Gender-based violence is prevalent in the Solomon Islands. Two thirds of women aged 15 to 49 report having experienced physical or sexual abuse by a partner.⁹² Sexual harassment is also a widespread problem.⁹³ Gender based violence is widely unreported.⁹⁴ Key reasons for failing to report abuse include pressure from male relatives, fear of reprisals, feelings of shame and cultural taboos of discussing such issues.⁹⁵
Inequitable gender norms are common in the Solomon Islands. Three-quarters of men and women believe violence is acceptable, especially if a woman is ‘disobedient.’⁹⁶
Legislation and enforcement
Domestic violence is a criminal offence punishable by up to three years in prison and a substantial fine.⁹⁷ The law criminalises rape, including spousal rape, with a maximum penalty of life imprisonment.⁹⁸ Sexual harassment is not illegal.⁹⁹
Very few domestic violence cases are prosecuted in the Solomon Islands.¹⁰⁰ Of the cases that are reported to the police, in most instances victims dropped charges before a court appearance or settled cases out of court.¹⁰¹ Prosecutions are rare due to low judicial and police capacity and cultural bias against women.¹⁰² A 2019 joint study by Australian Aid and the Government of the Solomon Islands examined how police respond when women report family violence incidents. In most cases (47 per cent) women reported receiving no information or action from the police, were told to ‘come back later’ or discouraged from filing a report.¹⁰³ When domestic violence reports are filed with the police, it can take up to two years for the charges to be heard in court.¹⁰⁴
Support services
The law in the Solomon Islands provides for access to medical services, counselling, legal support and a safe place within the community for survivors of domestic violence if they cannot return home.¹⁰⁵ The government runs a referral system to coordinate these services; however, referral agencies often lack funding, especially in rural areas.¹⁰⁶ During 2022, NGOs operated 11 safe houses throughout the country.¹⁰⁷
The US Department of State, reporting on Solomon Islands in 2019, stated discrimination and societal abuses in relation to women:
Other Harmful Traditional Practices: Customary bride-price payments remained common and contributed to the perception of male ownership of women.¹
A decade previously, the 2009 UNFPA study of family safety noted bride price among ‘risk factors at the individual and relationship level’ associated with ‘the occurrence of intimate partner violence’:
Bride price was found to be a strong risk factor for women’s experience of IPV. In particular, women whose bride price had not been fully paid were particularly at risk. They were more than two and a half [2.64²] times more likely to experience partner violence than women whose marriage did not involve bride price. Key informant interviews and in-depth discussions with victims of violence indicated that, in recent years, the practice of bride price has changed significantly. Now many people view bride price as giving a man ownership over his wife and the right to beat her and treat her as he wishes. It is believed by some, including many women, that if bride price is paid, a woman cannot leave her husband.³
All women who had been married through a ceremony were asked if their marriage had involved payment of a bride price. Those who responded positively were asked if all the bride price had been paid, or if some part still remained to be paid. Women whose marriage involved a bride price were significantly more likely to experience intimate partner violence (current and lifetime) than women whose marriage did not. When the whole bride price had not been fully paid, the women involved were even more likely to experience violence.⁴
Bride price was found to be a strong risk factor for women’s experiences of partner violence. Women whose bride price had not been fully paid were particularly at risk. They were more than two and a half times more likely to experience violence than women whose marriage did not involve bride price.
… 10% of women reported that they returned to a violent relationship after leaving because bride price was paid and 9% of women who had never left an abusive relationship reported that bride price was the reason they stayed. The existence of bride price varies from island to island. However, it was traditionally considered compensation by the man’s family to the parents of the bride for the ‘loss’ of their daughter. Ethel Suri from [Solomon Islands Christian Association, Federation of Women] SICA FOW explained that bride price is also about developing a covenant between two families: …
However, in recent years the practice has changed significantly and many people view bride price as the right given to a man to have ownership over his wife and to beat her and treat her as he wishes. A number of participants in the male focus group discussions, particularly older men, noted that the practice of bride price had changed and this was detrimental to the status of women. …
It seems that many people now believe that if bride price is paid, a woman cannot leave her husband. …⁵
Within the Solomon Islands a large portion, 85 per cent, of the land is managed under customary tenure – local clans and members of clan groups have control over the land. Traditionally the people belong to the land and people only have stewardship over the land which is held in ‘good faith’ for them and future generations.⁶
High-risk factors for domestic and family violence
Appendix 1 to Toivonen, C., & Backhouse, C. (2018). National Risk Assessment Principles for domestic and family violence (ANROWS Insights 07/2018). Sydney, NSW: ANROWS states that:
16.1.There are many factors which contribute to the risk of domestic and family violence (DFV). However, findings from empirical studies, academic and practice-based literature, and reports produced by international and Australian domestic violence death review committees and Coroner’s Courts indicate that some risk factors are associated with a higher likelihood of violence reoccurring, serious injury, or death, in the context of intimate partner violence by men against women.
16.2.Below are among the risk factors that indicate high risk of serious harm or death when mediated by other risk factors or an individual’s situation:
16.2.1.History of family and domestic violence, being the most consistently identified risk factor for intimate partner lethality and risk of re-assault. Homicide is rarely a random act and often occurs after repeated patterns of physical and sexual abuse and psychologically coercive and controlling behaviours.
16.2.2.Separation is particularly dangerous when the perpetrator has been highly controlling during the relationship and continues or escalates his violence following separation in an attempt to reassert control or to punish the victim.
16.2.3.Intimate partner sexual violence is a uniquely dangerous form of exerting power and control due to its invasive attack on victims’ bodies and the severity of mental health, physical injury and gynaecological consequences.
16.2.4.Perpetrators who threaten to kill their partner or former partner, themselves or others including their children, are particularly dangerous. Threats of this nature are psychologically abusive.
16.2.5.Use of a weapon (any tool used by the perpetrator that could injure, kill or destroy property) indicates high risk, particularly if used in the most recent violent incident, as past behaviour strongly predicts future behaviour.
16.2.6.The escalation in frequency and severity of violence over time is linked to lethality and often occurs when there are shifts in other dynamic risk factors, such as the attempts by the victim to leave the relationship.
16.2.7.Coercive and controlling patterns of behaviours are particularly dangerous and can heighten the risk of lethality, in contexts where other high-risk factors are present, such as attempts by the victim to leave the relationship.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, the relevant country information and high-risk factors for domestic and family violence set out in this decision record.
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 and Guidelines on Vulnerable Persons and the National Domestic and Family Violence Bench Book.
The Tribunal considers the applicant’s accompanying statement a coherent and persuasive record of her protection claims and personal circumstances provided in response to the Department’s request for information under s 56 of the Act.
The Tribunal notes the applicant states that she arrived in Australia [in] November 2022 as a seasonal worker.
The Tribunal notes the applicant did not apply for a protection visa until 16 September 2023, almost ten months after her arrival in Australia.
The Tribunal notes the Migration and Refugee Division Guidelines on the Assessment of Credibility provide that:
23.1.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 [Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346 per Heerey J at 349] or significant harm. [36]
23.2.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. [Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346; Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998; Makouei v MIMA, unreported, Federal Court of Australia, Wilcox J, 6 February 1998, at 6]. The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay. [37]
Relevant to the timing of the applicant’s protection visa application, the Tribunal notes the applicant states that:
24.1.“Leaving my country as a seasonal worker was indeed a great opportunity to escape the consistent threats that I have been facing in an arranged marriage that I have been trapped in.”
24.2.“I never knew that people facing such situation as mine are able to apply for protection under Australian law…I only knew from a friend that I can seek protection under Australian law…”
The Tribunal considers it is reasonable for a woman, looking for a way to escape an abusive relationship in which she was subjected to repeated physical, sexual and emotional violence perpetrated by her husband, to take up an opportunity to come to Australia for a period of time (for example, through the seasonal worker program), and later, after learning that due to her circumstances and experiences in her home country she could seek protection and permanent residency, to then apply for a protection visa.
The Tribunal considers it is possible that this is what occurred in the applicant’s case, and on that basis her ten-month delay in applying for protection is not a ground for doubting the credibility of her claims or the genuineness or extent of her subjective fear of persecution.
The Tribunal notes the applicant states that:
27.1.“After days and weeks of conversations between both of our parents, a huge bride price was paid to my parents for me to get married. All this was taking place without my knowledge nor my consent. But to show honour and respect to my parents, I had to get married to a man I never met or knew before.”
27.2.“On [date] August 2022 we got married. Our marriage occurred because of bride price, and hence, there is no marriage certificate to present to the Department as a proof.”
27.3.“After we got married, three days later he started getting angry at me for things that not worth getting angry for. He started beating and sexually abusing me. There were times he would beat me until I became unconscious. Almost every day he would beat me and sexually abuse me. There was nothing I could do as I was living with him and his relatives. I ended up in the hospital once [in October]. He beat me until I was unconscious, I could not retrieve my conscience quickly and so a cousin sister of his rushed me to the hospital in a taxi. He continued beating me and abusing me two days after that incident. There were many times I took refuge at my uncle’s home which is about 2 kilometres from where we live. I would stay at my uncle’s house for a day and then go back to my husband because his parent paid a large amount of money for my bride price.”
27.4.“My trip to Australia [in] November 2022 was funded by my uncle [name omitted]. He does not have much, but he thought it is good for me to escape the violence and abuse I used to face every day from my husband…My preparation to travel to Australia was only known by my uncle. My husband had no idea that I was traveling to Australia.”
The Tribunal notes the country information reports that gender-based violence is prevalent in Solomon Islands, women whose marriage involved a bride price were significantly more likely to experience intimate partner violence (current and lifetime) than women whose marriage did not, and many people view bride price as the right given to a man to have ownership over his wife and to beat her and treat her as he wishes.
The Tribunal considers that the applicant’s claims and evidence relating to intimate partner violence and bride price are supported by the country information.
The Tribunal notes the applicant did not provide a reason for electing not to appear before the Tribunal to give evidence and present arguments in support of her protection claims.
The Tribunal notes the Migration and Refugee Division Guidelines on Vulnerable Persons provide that:
31.1.A vulnerable person is a person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed. [6]
31.2.A factor which can affect a person’s ability to participate in the review process is physical or psychological abuse and trauma: victims of abuse, torture, rape, slavery, slavery-like practices such as forced labour and forced marriage, human trafficking or other serious forms of psychological, physical or sexual violence. [7]
31.3.…A vulnerable person may also find it difficult to give evidence or present arguments at a tribunal hearing or to follow the process of review. [38]
The Tribunal notes the National Domestic and Family Violence Bench Book under ‘Trauma-informed judicial practice’ provides that:
An important aspect of ensuring fair hearing and safety is considering the impact that experiences of trauma may have on the experience of the court process. For some victims their engagement with law enforcement agencies and the courts may exacerbate or prolong the trauma they have experienced as a result of the domestic and family violence. For example, absence of legal representation, lack of interpreter services, giving oral evidence, being cross examined, being present in the court room or court precinct with the perpetrator, or having to repeatedly return to court for mentions, adjournments and hearings may contribute to a victim’s revictimisation or secondary abuse through the court system.
The Tribunal considers it is reasonable that a woman who has been subjected to repeated physical, sexual and emotional violence perpetrated by her husband may find it difficult to appear before the Tribunal to give evidence and present arguments in support of her protection claims.
The Tribunal considers it is possible the applicant is a vulnerable person, and that while she has previously been able to prepare a coherent and persuasive record of her protection claims and personal circumstances, it is possible that she may find it too difficult to appear before the Tribunal to give evidence and present arguments in support of her protection claims.
The Tribunal considers that the opportunity to investigate and test an applicant’s written claims and evidence by taking oral evidence at hearing is an important part of the process leading to making credibility findings and determining whether an applicant meets the protection criterion.
The Tribunal considers however that the absence of the applicant’s oral evidence does not necessitate adverse credibility and eligibility findings.
The Tribunal notes the Migration and Refugee Division Guidelines on the Assessment of Credibility provide that:
37.1.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. [8]
37.2.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. [9]
37.3.In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true… The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa… [11]
The Tribunal considers that, in the absence of the applicant’s oral evidence, while the Tribunal cannot be certain that her claims and accompanying statement are a true account of her experiences of violence at the hands of her husband and of her fears of future serious harm if she returns to Solomon Islands, it is possible that they are a true account. On that basis, the Tribunal makes a credibility finding in the applicant’s favour.

The Tribunal notes the two ‘Statutory Declarations’ on their face given by the applicant’s uncle and brother respectively are not signed, however have been purportedly witnessed, and on that basis cannot be considered legally compliant statutory declarations.
The Tribunal notes the police officer’s statement does not identify the applicant’s husband or any other person as the other party in the applicant’s case.
Given the credibility finding in favour of the applicant, the Tribunal considers it is not necessary to decide whether it accepts the ‘Statutory Declarations’ and/or the police officer’s statement or how much weight to give such evidence.
The Tribunal notes the applicant married her husband on [date] August 2022, was beaten and sexually abused almost every day since, including an incident that resulted in her being unconscious and hospitalised [in] October 2022, and many times took refuge at her uncle’s house until her uncle facilitated her departure from Solomon Islands [in] November 2022.
The Tribunal considers this short timeframe, less than three months, persuasive evidence of the seriousness of the violence and abuse the applicant was experiencing at the hands of her husband.
The Tribunal notes the applicant states that:
44.1.“…in Solomon Islands, lands are owned by tribes. They are customary owned. There is no way I could relocate to other places that I am not related to.”
44.2.“My parents have received a bride price for me. It would be a disgrace and disrespect to my parents to leave the man that has paid them hugely. That perception has kept me to my husband still though I was being abused. I am not the only woman that this spell of bride price has bound; it is a strong cultural norm.”
44.3.“Police will not be able to protect me because of number of reasons. One of these reasons is a system known as a ‘Wantok system’. This system or practice is so common in our society; and it is the practice that the police would only help to protect me if I am a relative of them (the officers), or if I have money to bribe them, they could give me certain degree of protection…violence and abuse that I have been receiving from my husband has been reported to the police, but nothing was done about it.”
44.4.“…I cannot trust the police and the law, for they cannot protect me. My parents and my relatives will not be able to protect me either due to bride price that was paid to my parents.”
The Tribunal notes the country information reports that:
45.1.Gender-based violence in Solomon Islands is widely unreported, the key reasons being pressure from male relatives, fear of reprisals, feelings of shame and cultural taboos of discussing such issues.
45.2.Very few domestic cases are prosecuted in Solomon Islands, and of the cases that are reported to the police, in most instances victims dropped the charges before a court appearance or settled cases out of court.
45.3.Women reported receiving no information or action from the police, were told to come back later or discouraged from filing a report. When reports are filed with the police, it can take up to two years for the charges to be heard in court.
The Tribunal considers that the applicant’s claims and evidence relating to lack of protection from Solomon Islands police and her family are supported by the country information.
The Tribunal notes the country information reports that 85 per cent of the land in Solomon Islands is managed under customary tenure by which local clans and members of clan groups have control over the land.
The Tribunal considers it is likely that if the applicant returned to Solomon Islands, she would live with her parents or uncle.
The Tribunal notes the high-risk factors for domestic and family violence set out in this decision record.
The Tribunal considers that the applicant’s past experiences of repeated serious violence and abuse perpetrated by her husband over a period of three months from the date of their marriage to the date of her departure from Solomon Islands put her at high risk of future serious harm at the hands of her husband if she returns to Solomon Islands.
The Tribunal considers that the applicant’s high risk of future serious harm at the hands of her husband is not ameliorated by the applicant living with her parents or uncle as the husband is likely to be sufficiently motivated to seriously harm the applicant that he would track her down regardless of her whereabouts. The Tribunal notes the uncle previously provided the applicant safe refuge from her husband in Solomon Islands, however the Tribunal considers that the only effective means of protecting the applicant from her husband was for the uncle to facilitate her departure from the country.
The Tribunal considers that the applicant’s high risk of future serious harm at the hands of her husband is not ameliorated by the Solomon Islands police or courts.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.
53.1.The applicant is a citizen of Solomon Islands and a non-citizen in Australia.
53.2.The applicant is a member of a particular social group being a woman from Solomon Islands in a bride-price marriage who is a victim of family, domestic and gender-based violence.
53.3.The applicant fears being persecuted in Solomon Islands for the essential and significant reason of her membership of the particular social group.
53.4.There is a real chance that, if the applicant returned to Solomon Islands, she would be persecuted for her membership of the particular social group.
53.5.The persecution would involve serious and targeted harm to the applicant.
53.6.The real chance of persecution relates to all areas of Solomon Islands.
53.7.There are no effective protection measures available to the applicant in Solomon Islands.
53.8.The applicant could not take reasonable steps to modify her behaviour to avoid a real chance of persecution in Solomon Islands as her vulnerability to persecution arises from her past experiences of repeated serious violence and abuse perpetrated by her husband while she was living in Solomon Islands.
53.9.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.
53.10.The applicant is outside Solomon Islands, her country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself of the protection of Solomon Islands.
CONCLUSION
The Tribunal is satisfied that the applicant meets the refugee criterion and is therefore a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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.
ATTACHMENT B
Footnotes to country information
Paragraph 13
97 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March 2023, p.7
98 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March 2023, p.7
99 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March 2023, p.8
100 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March 2023, p.7
101 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March 2023, p.7; 'Freedom in the World 2022 - Solomon Islands', Freedom House, 28 September 2022
102 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March 2023, p.7
103 ‘Women’s experiences of family violence in Solomon Islands’, Australian Aid & Government of the Solomon Islands, 26 November 2019, p.26 & p.6
104 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March 2023, p.8
105 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March 2023, p.8
106 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March 2023, p.8
107 'Country Reports on Human Rights Practices for 2022 - Solomon Islands', US Department of State, 20 March 2023, p.8
Paragraph 14
1 ‘Country Reports on Human Rights Practices for 2019 - Solomon Islands’, United States Department of State Bureau of Democracy, Human Rights and Labor, 11 March 2020, p.8 Section 6
2 'Solomon Islands Family Health and Safety Study: A study on violence against women and children', United Nations Population Fund (UNFPA), 2009, p.147 Table 11.4
3 'Solomon Islands Family Health and Safety Study: A study on violence against women and children', United Nations Population Fund (UNFPA), 2009, p.9
4 'Solomon Islands Family Health and Safety Study: A study on violence against women and children', United Nations Population Fund (UNFPA), 2009, p.143 (see also 11, 29, 71, 127, 133 Table 10.8, 134 Table 10.9, 141 Table 11.2, 147 Table 11.4, 149-151 & 155)
5 'Solomon Islands Family Health and Safety Study: A study on violence against women and children', United Nations Population Fund (UNFPA), 2009, pp.149-150
Paragraph 15
6 'Solomon Islands', Encyclopedia.com, 10 June 2018, p. 48

[2024] AATA 2226

23 May 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Consent

Natural Justice