1401172 (Refugee)

[2016] AATA 3103

1401172 (Refugee) [2016] AATA 3103 (15 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1401172

COUNTRY OF REFERENCE:                  Philippines

MEMBER:Tony Caravella

DATE:15 January 2016

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 15 January 2016 at 10:23am

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Philippines, applied for the visas [in] January 2013 and the delegate refused to grant the visas [in] January 2014.

   Background and protection claims

3. The applicants declare that they are citizens of the Philippines.  According to the Department’s records, the first named applicant arrived in Australia on a [temporary visa].  That visa expired [in] January 2012.  He was subsequently granted a Bridging visa pending an application for a further [temporary] visa which was refused [in] March 2012. 

4. In his written application for a protection visa submitted on Form 866C by the first named applicant, he claims that he came to Australia for a better life and that he had a [temporary visa].  He writes in response to the question which asks what he fears may happen to him if he returns to the Philippines, that he has been told by his employer that if he goes back and talks, then he will have a hard time to find work and that he may be bashed or worse by people with connections there.  He claims that his employer in Australia claims to have connections in the Philippines who will do whatever he asks them to do.  He claims his employer also has connections with the local Police in the Philippines.

5. The first named applicant declares that he obtained his [temporary] visa through a recruiter in the Philippines.  He writes that some of these recruiters are not very nice people. 

6. The first named applicant claims that he has a daughter who is a [Occupation 1] and that his employer asked his daughter to work for him, which she did.  He claims that after some time his employer started asking his daughter to go out with him socially, but she refused to do so. 

7. The first named applicant also declares that the next thing his employer did because of his daughter’s refusal of his offers, was to reduce her wages to a very small amount for very long hours. He claims that his daughter complied with this because he had threatened to sack her, him, and his wife and that they would then be sent back to their country. He claims that this was blackmail and that they had no choice but to remain because they have another [child] going through her [temporary] application as [occupation].

8. The first named applicant declares that they have given up their future in the Philippines and that his daughter continued to work for Mr T as long as she could but then could do it no more because she was getting stressed and ill.  He declares that when she eventually resigned they all got the sack and were threatened by the employer not to complain here, or in the Philippines, as he did not want the other recruiter to know about these sexual demands and physical threats.

9. The first named applicant writes that his former employer tells him that he has serious connections here and also in the Philippines and that they should not go to the police or they will be in more trouble. He declares that he thinks this is not the first time his former employer has tried to play with his sponsored employees and they have heard some bad things about the employer from people in the Filipino community.

10. In response to the question as to whether the authorities in the Philippines can and will protect them if they return, the first named applicant replies no, and states in their community corruption is a way of life and that they would not be safe.

11. The second named applicant applies for protection as a member of the family unit of the first named applicant and did not initially make her own protection claims.

12. The third named applicant lodged a separate application for protection (Form 866C) with the Department and made her own protection claims which are consistent with the protection claims of the first named applicant who is her father.  The first named applicant declares that she came to Australia with a family because her father got a job as the holder of a [temporary] visa.  She also declares that her former boss told her that if she goes back to the Philippines and talks, then she will have a hard time to find work there and that she may be bashed or abused.  She declares that she obtained a job through her father’s employer as [Occupation 1] when he found out that she was [that occupation].  She declares that after having started work there, her employer started making suggestions that he wanted to sleep with her and that if she refused he would sack her and her parents.  She declares she was made to work longer hours and extra days and the pay was reduced to try to make her change her mind. She declares she kept on refusing his advances and the employer ultimately dismissed the applicants.

    The delegate’s decision

13. The delegate prepared two separate decisions in this case.  The first shows the first named applicant as the primary applicant with his daughter as a member of his family unit making specific claims, and the second named applicant not making any specific claims.  The second decision shows the third named applicant as the primary applicant, and her father and mother as members of her family unit.  The applications for review have been combined and the Tribunal sets out its reasons in reviewing both of those decisions  in this decision record.

14. The delegate’s decision record indicates that at the protection interview the first named applicant provided additional claims including:

    ·he had recently come to know that the Filipino recruitment agent that he used to come to Australia was not accredited by the Philippines Overseas Employment Administration (POEA) and suggests that this may be an indication that the company may be involved in illegal conduct;

    ·before coming to Australia he met the sponsor in [Manila] where the sponsor was conducting interviews to test their suitability for employment;

    ·the first named applicant’s daughter, that is the third named applicant, started work for the sponsor [in] February 2011 and that she started having problems with the sponsor in or around July or August 2011.  As a result she became very depressed and went to see a doctor and the doctor recommended that the third named applicant quit her job;

    ·[in] August 2013, the first named applicant submitted his daughter’s letter of resignation to the sponsor.  The sponsor subsequently dismissed the first and second named applicants from their jobs;

    ·the third named applicant returned to the Philippines [in] late October 2012 to visit her [relative] who was ill with [a medical condition].  There were no issues for her daughter or his [other child] in the Philippines because he had kept quiet about the sponsor’s actions;

    ·the sponsor has never harmed the applicant or his family in any way but had previously verbally abused him while he was working.

15. The delegate was not satisfied that the applicant’s employer had the serious connections and influence they claimed he claimed he had in the Philippines.  The delegate found that the reasons given by the applicants for thinking that the sponsor had connections and influence in the Philippines and Australia were speculative.  The delegate also considered the recruiter’s lack of accreditation was not necessarily an indication that the recruiter was involved in some sort of criminal activity as claimed by the applicants.

16. The delegate also considered the failure by the applicants to notify the Australian authorities of the threats by the sponsor.  The delegate considered the applicant’s response that he did not have the courage to go to the police to report the matter and thought that the proper venue to bring up the issue of his sponsor was with the immigration department.  When asked why the applicant had not previously reported the issue to the Department, the delegate notes the applicant stated that he had left this responsibility with his migration agent. The delegate concludes by finding that if the threats of harm made by the sponsor had occurred in August 2011 as claimed, the applicant himself or through a migration agent would have reported this issue to the Department, or to another agency, before doing so in a protection application which was lodged [in] January 2013. The delegate found the failure to previously report this matter indicated that the information submitted in respect to the sponsors threats is not credible.  The delegate concludes that the sponsor does not have influence or connections in the Philippines as claimed and rejected that the sponsor made any specific threats to the applicant in regard to harm being inflicted in the Philippines or Australia. The delegate went on to also find that despite the earlier findings, he accepts that the sponsor owns a business and may be a person with financial means, and the sponsor may want to harm the applicant to protect his reputation even if he has not made specific threats to the applicant. The delegate concluded that the first named applicant does not meet the requirements under the Act for protection in Australia either under the refugee provisions or under the complementary protection provisions.

    Application for review

17. The applicants applied for a review of the delegate’s decision by this Tribunal on 23 January 2014.

    Evidence at Tribunal hearing

18. The applicants appeared before the Tribunal on 29 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

19. The applicants were represented in relation to the review by their registered migration agent, however he did not appear at the Tribunal hearing.

20. At the opening of the Tribunal hearing, the Tribunal telephoned the applicant’s agent who spoke to the Tribunal by mobile telephone.  He said he was in a waiting room at the [a] Hospital.  The Tribunal expressed its concern that this was not a private or suitable venue from which he could make submissions in respect of the applicants.  He agreed.  The Tribunal agreed to provide the agent with a copy of the hearing recording after which he would be given time to make written submissions.  He also advised he would be at his home office in two hours.  The Tribunal indicated it would call him there and also invite him to make oral submissions by telephone at that time. 

21. [Ms A] introduced herself as the daughter of the first and second named applicants.  She said originally she was a part of the application for the protection visa.  However since then, her [employer], successfully sponsored her for a [another] visa. She said she has been granted such a visa.  She told the Tribunal that she is also now an Australian citizen.

22. The Tribunal explained to the applicants that it understood that the claims for protection turns to a significant extent on the third named applicant’s (“hereafter “M”) claims of her former employer’s inappropriate sexual advances, and the associated subsequent threats and dismissal of her father and mother from employment.  It explained that part of the review involved the Tribunal making assessment as to the credibility of these claims, and also considering relevant country information.

23. The Tribunal invited M to give evidence.  She began by saying that when she went back to the Philippines for a visit in November 2012, she did so because [a relative] living there had [a medical condition].  She said she only stayed in the Philippines for [several days] even though she had planned to stay for longer.  She said she cut her visit short because she felt someone was watching her.  She said that there was someone who looked suspicious hanging around where she was staying at the time.  She said she did not report it to the police.  She said that her former employer had told her that he has connections in the Philippines.

24. The Tribunal asked M why she considers her former employer (hereafter “Mr T”) has connections in the Philippines.  She said it is because he regularly travels to the Philippines and that is where he recruited her father to work for Mr T’s [other] business.  The Tribunal asked her whether she had any other evidence that Mr T is likely to carry out the threats she claims he made.  She had no evidence in this respect.

25. The Tribunal asked M when Mr T started threatening her and her family.  She said that it started as soon as she resigned.  She said that shortly after that, he sacked her father and mother who both worked for [Mr T]. She said Mr T told her that he would make her life difficult.

26. The first named applicant (hereafter “Mr V”) told the Tribunal that he delivered his daughter’s written letter of resignation to Mr T’s office in [Town 3] and left it with someone in the office there.  He said immediately after leaving the resignation letter, he went to the [workplace] where he was employed doing [work].  He said Mr T turned up at the [workplace] a short time later that same day and he was very angry.  He said he tried to talk to him, but Mr T said it was only because of him that the applicants were in Australia.  He said he also subsequently received a telephone call from Mr T who told him not to report him to anyone.

27. The Tribunal asked Mr V if it was his understanding that Mr T was satisfied with his work. He said Mr T was in fact satisfied with his work before he submitted his daughter’s resignation letter.  He also referred to Mr T giving him a letter indicating that he would appoint Mr V in the capacity [in another role] for a [another business] owned by Mr T in [Town 3].

28. The second named applicant (hereafter “Mrs V”) gave evidence that on the same day as her husband, Mr V, handed in their daughter’s letter of resignation, she was working [at] Mr T’s house. She said she was working downstairs [when] she overheard Mr T talking with his wife in the house and overheard him say that he was going to “sack them all”.  She said Mr T then came up to her and told her that she would not work for him after that day.  She said she did not respond but just cried.  She said she was scared and he was very angry and asked her for her daughter’s phone number.  She said she did not give it to him. The Tribunal asked Mrs V if there was any suggestion before that time that Mr T was not happy with her work.  She said there was no indication of this, and that Mr T’s wife would often hug her.  [Details of work deleted]. She said that initially she worked doing that five days a week, but later once she had got things organised she worked there [number] days a week, and then on the other [days] of the week she would work at Mr T’s [business] in [Town 3].

29. M then asked if she could give evidence in private to the Tribunal. The Tribunal agreed, and after a short break, resumed the hearing in private with M and with the assistance of an interpreter.

30. M told the Tribunal that she is a qualified [Occupation 4] in the Philippines.  She said she has a licence to practice [Occupation 4] in the Philippines, but she would have to sit an exam in Australia to be admitted to practice as a [Occupation 4] here.  She said she qualified in the Philippines in December 2010, and then travelled to Australia in February 2011.  She told the Tribunal that she commenced working as [Occupation 1] on a full-time capacity, and on a full-time salary for Mr T.  She said however, after she refused his advances, Mr T told her that she could not be paid a full-time salary because according to him her visa prevented her from working more than twenty hours a week.  She said thereafter she was underpaid for the work she undertook for Mr T.

31. M told the Tribunal that Mr T’s [business] in [Town 3] employed about [number] employees, including herself. She said Mr T also has other branches within a network of [related businesses].  She said from the beginning her role was to assist Mr T, and that they would travel regularly to his other branches.  She said she worked in that role from February 2011 until she resigned in August 2011.  She said that after working for about one month, he asked her to go out with him.  She said she told him that she was not available, however every time they were alone, for example, when travelling in his car from one branch to another, he would ask her to go out.  She said she told him he was married but he insisted.  She said despite his invitations, she never went out with him and she never gave him the impression that she would.

32. M told the Tribunal that before she resigned, Mr T told her that if she did not go out with him, they, that is her father, mother, and she, would all lose their jobs.  She said she can’t remember the exact words he used but that was the message he conveyed.  He said that sometimes they were travelling back from one of the branches at night and he would insist that they go out.  She said he told her not tell her father about Mt T’s advances.  She said that she kept it to herself and never mentioned it to anyone because she was scared.

33. The Tribunal asked the applicant whether Mr T had ever communicated with her about these things by text or email.  She said he never called her or messaged her, and he would only make the advances when they were alone.

34. M told the Tribunal that before she resigned she was experiencing depression and her mother noticed that she had given up eating.  She said she was thinking of killing herself and so her mother insisted she see a doctor.  She said she saw a doctor who has also provided a medical certificate which she provided to the Department.  When asked if she had told the doctor specifically of Mr T’s advances, she said she did not tell the doctor about that either. She said she did not tell her doctor because she was scared of what Mr T had threatened.

35. M told the Tribunal that on the day her father delivered her resignation letter, Mr T telephoned her and asked her why she had done this.  She said that in her resignation letter she had written that she was experiencing work-related stress, but the resignation letter did not refer to his inappropriate advances.  She said that during a telephone call, Mr T said that her resignation could damage his reputation and he would make her life miserable.

36. The Tribunal asked M whether she had lodged a complaint with the police or with any other authority. She said she had not because she was scared.  She also said that she was embarrassed to talk to anyone about it.

37. The Tribunal asked her if she has knowledge as to whether Mr T has an ownership or other interest in the recruitment agency through which he recruited her father in the Philippines, or whether he was simply a user of that service.  She said she does not know.

38. She also told the Tribunal that she had heard, through the Filipino community in [Australia], that Mr T has taken advantage of other visa holders. 

39. She told the Tribunal that if they have to go back to the Philippines she would be scared.

40. She told the Tribunal that she has now been working with another [business] since late 2011 after resigning from the job with Mr T.  When asked if her present employer intends to sponsor her for a visa, she said that they cannot because the occupation of [Occupation 1] is not an occupation listed as in demand for a skilled visa at the present time.  She said in addition, she cannot undertake the [exam] to permit her to qualify and practice as [Occupation 4] in Australia because the Association requires her to have had at least five years experience working as [Occupation 4].  She said she does not have that experience because she came to Australia with her family shortly after qualifying as [Occupation 4] in the Philippines. 

1. The Tribunal asked M whether she had told her parents about Mr T’s approaches.  She said she only told her parents about it a week after her father delivered the resignation letter.  She said her parents however observed that she had become very quiet and that she had stopped eating and her mother told her she should see a doctor.

2. With respect to the claim that Mr T had reduced her wages, the Tribunal asked her if she could provide evidence such as payslips. M said that she was not given payslips, and also said she was not required to sign anything in relation to her pay.  She said, however, that her pay was deposited directly into her bank, and said that the bank statements show that her pay was reduced by half.  The Tribunal invited her to provide copies of relevant bank statements, and a copy of her resignation letter.

3. She told the Tribunal that the police in the Philippines are corrupt, and she thinks Mr T could easily hire someone to kill them.

4. The other applicants, and M’s sister [Ms A], joined the Tribunal hearing again at this point.

5. Mr V told the Tribunal that he believes Mr T could harm them because he knows him and that he has money and connections. He said he had observed with his own eyes Mr T’s behaviour in evicting a [client] from one of his [business] in [Town 3].  He said that Mr T turned up with “a big guy” and pulled the [client] out of the [premises].

6. The Tribunal asked Mr V whether he has had any contact with Mr T after the day he lodged his daughter’s resignation letter.  Mr V replied that they try to avoid him and Mr T has made no contact with them.

7. The Tribunal asked Mr V to comment on relocation to some other part of the Philippines.  He told the Tribunal that before they came to Australia they lived in a suburb of Manila.  He said he came to Australia to improve his family’s future.  He said that they have a third [child] who is the youngest of the three children and who lives with their [relative] in the Philippines.  He said they have not seen [him/her] for years and stay in contact by telephone calls.  He said his [child] is a student in the Philippines.

8. Mr V told the Tribunal that he believes that Mr T’s [other] business may not be operating at the present time since he finished the [project] in [a certain town].

9. Just before closing the hearing, the Tribunal telephoned the applicant’s agent who at the time had returned to his office.  It advised him that a copy of the hearing recording would be sent to him and invited any further evidence, including bank statements, and a copy of the letter of resignation, and any further submissions to be submitted to the Tribunal by no later than 12 November 2015.

10. Despite inviting the applicants, and their representative, to make further written submissions by 12 November 2015, as at the time of finalising this decision no submission or other document has been received by the Tribunal.

11. On 28 October 2015, the Tribunal issued a summons to the Department of Immigration and Border Protection and requested relevant information as to its dealings with Mr T and his business entities.

12. [In] November 2015, the Department provided advice in response to the summons issued to it.  It advised that at least one sponsor warning had been issued to the business entity associated with Mr T in respect of salary deductions from an unrelated employee.  It also provided evidence of another unrelated complaint made against the employer.  The Department also advised that Mr V was nominated to be sponsored by [company name] [in September] 2011, operating from [town], however this application was finalised because the company had not met the criteria for sponsorship.  The Department advised there are no other persons recorded on DIBP systems as working for this business.  The Department also confirmed that prior to this, Mr V had been sponsored by [company] and [company], and that sponsor notified the Department of the cessation in [the applicant’s] employment [in October] 2011. 

    Independent country information        

13. The US Department of State reported the following information relevant to the question of state protection in its Country Reports on Human Rights Practices for 2014: 

    Role of the Police and Security Apparatus

    The PNP reports to the DILG and maintains internal peace and security in most of the country. The AFP, which reports to the Department of National Defense, directs security functions in regions with a high incidence of conflict, particularly in areas of Mindanao. The two agencies shared responsibility for counterterrorism and counterinsurgency operations. The PNP continued to increase its capabilities to assume greater responsibility for internal security in conflict-affected areas in alignment with the AFP’s 2010 Internal Peace and Security Plan and the 2012 framework peace agreement.

    The PNP is responsible for law enforcement and urban counterterrorism operations. Governors, mayors, and other local officials have considerable influence over local police units, including approval of top departmental and municipal police officers and the provision of resources, an arrangement that often resulted in abuse and corruption.

    The 147,190-member PNP has deep-rooted institutional deficiencies and continued to endure a widely held public perception that corruption was endemic within the force. The PNP’s Internal Affairs Service, with a mandate to instill police discipline, remained largely ineffective. Civilians and NGOs accused police personnel of torture, soliciting bribes, and other illegal acts. Efforts continued to reform and professionalize the institution through improved training, expanded community outreach, and salary increases.

    The government lacked sufficient mechanisms to investigate and punish abuse and corruption in the PNP and the AFP, which allowed impunity to persist within the security forces. From January to October the Office of the Ombudsman, an independent agency responsible for investigating and prosecuting charges of public abuse and impropriety, received 266 cases involving military and law enforcement officers accused of committing human rights abuses. The cases included killings, injuries, unlawful arrest, and torture against mostly low-ranking police and military officials. As of October, 265 cases remained pending and under investigation while officials dismissed one case due to insufficient evidence. There were no convictions recorded against high-ranking police or military officials.

    The PNP reported 72 administrative cases filed against 72 police personnel for human rights violations as of July. Criminal proceedings also began against 196 police personnel accused in 272 cases. Officials dismissed at least eight police personnel for various administrative and criminal offenses as of August.

    The AFP Human Rights Office continued to monitor and review alleged human rights abuses involving members of the military. From January through October, the Human Rights Office identified and investigated nine reported incidents of human rights violations involving AFP personnel. The breakdown by type was as follows: murder (four), harassment/threats (three), and other human rights violations (two). At year’s end recommendation and resolution of all cases remained pending.

    Police and the military routinely continued to provide human rights training to their members, augmented by training from the CHR. The AFP operated from its revised Graduated Curricula on Human Rights/International Humanitarian Law for the Military to provide a uniform standard of training across service branches. The AFP also continued to adhere to the 2005 Presidential Memorandum Order Number 259, which requires incorporation of human rights and international humanitarian law into all AFP education and training courses undertaken by all officers and enlisted personnel. Moreover, successful completion of these courses is required for recruitment, entry, promotion, reassignment, and foreign schooling opportunities.

    The Commission on Appointments determines whether senior military officers selected for promotion have a history of human rights violations and solicits input from the CHR and other agencies through background investigations. The commission may withhold a promotion indefinitely if it uncovers a record of abuses. Negative findings, however, do not preclude promotion.

    The PNP maintained a network of 2,108 human rights desk officers at the national, regional, provincial, and municipal levels. The CHR continued to note that senior PNP officials appeared receptive to respecting the human rights of detainees, but rank-and-file awareness of detainee rights remained inadequate.

    RELEVANT LAW

14. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

    Refugee criterion

15. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

16. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

17. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

18. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

19. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

20. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

21. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

22. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

23. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

24. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

25. 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 a protection 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 the applicant 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’).

26. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

27. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

28. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

    Member of the same family unit

29. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and daughter. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. The issue in this case is whether the first named applicant meet the statutory requirements for the grant of a protection visa either under the refugee protection provisions, or under the complementary protection provisions, or as a member of the family unit of such a person.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference and third country protection

31. Based on documents provided by the applicants to the Department and held on the Department’s file, including copies of their respect passports issued in their names by the Republic of the Philippines, the Tribunal finds the applicants are nationals of the Republic of the Philippines.

32. Based on the finding in the previous paragraph, the Tribunal finds that the country of reference for the assessment of refugee claims, and the receiving country for the assessment of complementary protection claims, in this case is the Philippines.

33. There is no evidence before the Tribunal to suggest the applicant has a present right to enter and reside in any other country than the Philippines.  The Tribunal therefore finds the applicant is not excluded from protection in Australia by the operation of s.36(3) of the Act.

    Credibility issues

34. The Tribunal accepts that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

35. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.  

36. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.  Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).

1. The Tribunal considered all the evidence before it and found the applicants gave consistent, plausible and detailed responses at the hearing before it.  It also notes the applicant’s written claims and documentary evidence is consistent and credible.  The Tribunal also found the applicants’ witness to be reliable and truthful.  It accepts the applicants have given truthful evidence of their experiences. 

   Assessment of refugee protection claims

2. The applicants’ detailed claims are set out earlier in this decision record.  When distilled, their claims are essentially they fear returning to the Philippines for fear of being seriously harmed by agents or associates working for Mr T who they claim has threatened to make life difficult for them if they speak out or report of his sexual advances made to M.  They claim that they will not be protected by the relevant authorities in the Philippines and that they would not be able to relocate to some other part of the Philippines where there would not be an appreciable risk of serious harm from their claimed persecutor.

3. Having considered all the evidence, the Tribunal finds the first named applicant was recruited by an agency in the Philippines used by Mr T and entered Australia to work for Mr T as the holder of a [temporary] visa.  The Tribunal also finds the secondary applicants accompanied the primary applicant to Australia, and that as a result of her relationship with the primary review applicant M eventually commenced work with Mr T as [Occupation 1].  The Tribunal accepts that M worked for Mr T from February 2011 until August 2011.  The Tribunal also finds that M subsequently went on to work for another [business] in late 2011 and continues to work there to the present time.

4. Having regard to all the evidence, and in light of its positive credibility assessment of all of the applicants, the Tribunal accepts that shortly after M commenced work with Mr T, she was a target of unwanted sexual advances from him.  The Tribunal also accepts the evidence that she rejected these advances and that she did not give Mr T any indication that she was interested in a relationship of any kind with him, nor encouraged his advances. Based on the positive credibility assessment to those made of M, notwithstanding that she has been unable to provide documentary evidence supporting the particular claim, the Tribunal accepts that her wages were reduced, but not hours, as claimed.

5. The Tribunal also accepts the evidence before it that M submitted a letter of resignation to Mr T and that this was delivered by her father, the primary review applicant.  The Tribunal accepts the evidence that M thereby resigned from the position with Mr T’s [business].  The Tribunal also accepts the evidence that on the same day that the letter of resignation was submitted to Mr T, Mr T proceeded to where the first named applicant was working and dismissed him from employment, and that the second named applicant was also dismissed from her [job] as claimed.

6. Having regard to all the evidence, and to the positive credibility assessment he has made of the applicants, the Tribunal accepts that Mr T told the applicants not to report him, or his advances, to anyone so as to protect his reputation.  The Tribunal is also prepared to accept Mr T told the applicant said he had various connections in the Philippines. The Tribunal accepts that the applicants’ believed Mr T’s claims to have connections in the Philippines on the basis, amongst other things, Mr T having utilise the services of an unregistered recruitment agency in the Philippines.  The Tribunal also accepts that when M went to the Philippines to visit her sick [relative], she felt scared and observed someone who she thought was acting suspiciously. However, the Tribunal notes that M was not harmed nor directly approached in any way by the person who she observed to be acting suspiciously.

7. The Tribunal must now consider whether there is a real chance, or a real risk, that Mr T, or his agents or associates will cause the applicants serious or significant harm should they return, or be removed to, the Philippines. The applicants claim they fear Mr T has connections in the Philippines who may, amongst other things, prevent them finding work.  The Tribunal accepts the denial of capacity to earn a livelihood of any kind, whether denial threatens a person’s capacity to subsist, amounts to serious harm pursuant to s.91R(2) of the Act.  However, to engage Australia’s protection obligations there must be a real chance that this will occur, and a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  The Tribunal notes the evidence indicates that after making the threats in

8. 2011, Mr T has left the applicants alone.  The applicants themselves confirmed at the hearing that he has not harmed them or otherwise pursued them in Australia.  On the question of whether there is a real chance he would seriously harm them, or cause them significant harm, in the Philippines, the Tribunal finds there is little evidence to support this.  It accepts Mr T may have the financial means as submitted by the applicants. However, the Tribunal finds there is no evidence that he is actually motivated to carry out his threats against the applicants.  The Tribunal considers that if Mr T maintained any motivation to seriously or significantly harm the applicants, he would very likely have communicated this in some way given the period of time that has elapsed since 2011 to the present time.   In respect of the evidence from M about her return to the Philippines in November 2012 to visit her [relative], the Tribunal found the evidence in this respect to be vague, speculative, and inconclusive, and it does not accept based on the evidence before it that the person she claims she saw acting suspiciously was in any way connected with Mr T, or in any way presented a risk of serious or significant harm to her or to the other applicants.  Having regard to all the evidence the Tribunal does not accept that Mr T continues to have the motivation to cause serious or significant harm to the applicants if they return to the Philippines.  For these reasons, the Tribunal finds the applicants do not face a real chance, or a real risk, of serious or significant harm, respectively, at the hands of Mr T or anyone else associated with him, or anyone else generally, now or in the reasonably foreseeable future if they return to the Philippines. 

9. The Tribunal also considered the evidence presented to it that indicates M kept information of the advances made to her by her ex-employer to herself and did not report these to her parents, or to the police, to the Department, to her doctor, or to anyone else.  The Tribunal accepts her experience in this respect gave rise to her stress symptoms and after taking medical advice she decided to resign.  Having regard to all the evidence, and having regard to its assessment of the credibility of the applicants, this Tribunal is satisfied that the harassment was not reported because the applicants had a subjective fear of the consequences of doing so.  The Tribunal also accepts M’s claim that she also felt embarrassed to make a report against her ex-employer.  The Tribunal considered whether M’s action not to report the advances amounts to a situation where she continued to live, or would have to live her life, discreetly in respect to those advance to avoid serious or significant harm as contemplated in the case of  S395.  The Tribunal finds in the circumstances of this case, the failure by M to report the sexual advances to anyone does not undermine the claim that the advances did in fact occur, or otherwise undermine the credibility of the applicants‘ claims.  However, having regard to all of the evidence in this case, and to its findings that M’s ex-employer is not motivated to seriously or significantly harm her or her family, and that he has left them alone since 2011, the Tribunal does not find that the applicants would be forced to live discreetly, or not speak about or report the advances of M’s ex-employer, in the Philippines if they return there. 

10. The Tribunal considered whether there is a real chance, or a real risk, of serious or significant harm, respectively for any other reason should the applicant’s return to the Philippines. The applicants cited having come to Australia for a better future and having to some extent disconnected themselves from their country. However, the Tribunal notes the first and second named applicants continue to have a [child] in the Philippines, although it also accepts the evidence from their daughter [Ms A] that she has migrated to Australia, was granted a [visa] these are and is now an Australian citizen.  The Tribunal acknowledges that the refusal of the protection visas to the applicants in this case is likely to result in a separation of the applicants from [Ms A] who on the evidence is likely to remain in Australia. The Tribunal however does not find that such an outcome amounts to serious or significant harm. 

11. The Tribunal finds that both the first named and third named applicants are employed in productive and stable work in Australia, and the failure to grant them a permanent visa will give rise to disruption, and potentially to financial challenges and disappointment if they return to the Philippines and are required to re-establish themselves there. However, the Tribunal does not find such challenges or disappointment or disruption amounts to serious or significant harm.

12. As the Tribunal finds there is not a real chance the applicant’s will face ‘serious harm’, or a real risk they will suffer ‘significant harm’ should they return to the Philippines, it is not necessary for it to consider whether they are able to avail themselves of state protection, or to consider the question of internal relocation. 

13. The Tribunal does have sympathy for the applicants in this case. It considers they have been put in an unenviable situation due to no fault of their own.  The Tribunal acknowledges that M was subjected to unacceptable sexual harassment in Australia.  However, as objectionable as that is, it is not the test as to whether Australia’s protection obligations are to be engaged.  It is the function of this Tribunal to apply the relevant tests which in the circumstances of this case it finds not to be satisfied.  Having regard to all the evidence before it, the Tribunal finds that the reasons set out in the preceding paragraphs, that there is not a real chance, or a real risk, that the applicants will suffer serious or significant harm for any of the reasons they have claimed, or for any other reason, should they return to the Philippines.  The Tribunal therefore finds the applicants do not have a well founded fear of Convention persecution if they return to their country now or in the reasonably foreseeable future.  Further, the Tribunal finds in the circumstances of this case there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, the Philippines in this case, there is a real risk that they will suffer significant harm.

14. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Tony Caravella
    Member