1416214 (Refugee)

[2015] AATA 3248

1416214 (Refugee) [2015] AATA 3248 (3 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416214

COUNTRY OF REFERENCE:                  Philippines

MEMBER:Susan Pinto

DATE:3 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 03 August 2015 at 9:27am

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

STATEMENT OF DECISION AND REASONS

BACKGROUND AND APPLICATION FOR REVIEW

1.       The applicants are citizens of Philippines. The first and second named applicants are in a de facto relationship and the third named applicant is their child. The first named applicant arrived in Australia [in] March 2006. The second named applicant arrived in Australia [in] April 2005.  The third named applicant was born [in] 2009 in Australia and is the child of the first and second named applicants. The applicants applied to the Department of Immigration and Citizenship for Protection visas [in] November 2010. The delegate decided to refuse to grant the visas [in] March 2011. The applicants subsequently lodged applications for Ministerial intervention which were refused.

2.       The applicants applied for Protection visas [in] February 2014 The first named applicant (the applicant) lodged an application form in relation to an applicant who wishes to submit their own claims to be a refugee (Form C). The second and third named applicants lodged applications as members of the family unit of the applicant (Form D). The applicant essentially claimed that he separated from his former wife in 2000 and was refused access to his children. The applicant’s father in in law is a member of the New People’s Army (NPA) and harmed and threatened the applicant. The applicant claims that he fears further harm from his father in law if he returns to the Philippines.

3. The delegate refused to grant the visas [in] August 2014. The delegate did not accept that the applicant’s father in law is a member of the NPA or that he will be sought or harmed by his father in law upon his return to the Philippines. 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). The delegate assessed the applicants against both the Refugees Convention and the Complementary Protection provisions. For the reasons discussed below, the Tribunal has assessed the applicants only against the Complementary Protection provisions. 

RELEVANT LAW

4.       Section 48Aof the Migration Act 1958 imposes a bar on a non citizen making a further application for a Protection visa while in the Migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the Complementary Protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a Protection visa on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion.

5.       As indicated above, the applicants have previously been refused Protection visas in Australia. However, the visa application under review is a valid application because the applicants are considered ‘SZGIZ-affected’ as they have not left Australia since the final determination of their previous Protection visa application, which preceded the Complementary Protection laws. As the applicant has previously had his claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether he satisfies the requirements of s.36(2)(aa), and whether the second and third named applicants satisfy the criteria in s.36(2(c).

6. The Complementary Protection provisions (see attachment for the full text of these provisions) in s.36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are 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’. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected 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.

CLAIMS AND EVIDENCE

First application to the Department

7.       According to his Protection visa application, the applicant was born in [the] Philippines, in [date]. He indicated on the application form that he speaks, reads and writes Tagalog and English. He gave his religion as New Christian. He stated that his occupation before he came to Australia was [occupation]. He stated that he departed the Philippines in March 2006 and arrived in Australia as a visitor [in] March 2006. He indicated that he never previously travelled outside the Philippines.

8.       The applicant also indicated that he had resided at [location] from 1994 until his departure in March 2006. He stated that he had [certain] years of education. He graduated with a [tertiary qualification]. He stated that he is in a de-facto relationship.

9.       The applicant stated, in response to a question on the application form as to why he left the Philippines that he was married in 1996 to [a woman] in [Province 1] and they had [children]. He states that both he and his wife were working in a [workplace] and he had a permanent position in the Philippines government service. He claims that in February 2000 he was threatened by his father in law. He claims that his father-in-law took custody of his children and warned him not to visit his wife or children. He claims that in December 2003 he tried to visit his wife and children.  He claims that his father-in-law kicked and beat him and pointed a gun at him and said that he would kill him if he came to his house again.

10.      The applicant claims that he was informed by his neighbours that there were strange men roaming around his place at night. He claims he had a “feeling” they were hired hit men who wanted to eliminate him. He claims that his father-in-law is [an official] in the [Province 1] region and he believes he is a member of the NPA.  He claims that his father-in-law tried to recruit him but he refused.  He claims he was forced to attend meetings with other NPA officers.  He claims that after continuous threats he left his home town in 2005.  He claims that due to his fear he had no choice but to come to Australia. He claims he did not return to the Philippines as he was still scared and frightened.   He claims that if he is to return to the Philippines his father-in-law and the NPA will harm him.  He claims that if he tried to visit his [children] his father-in-law would do everything possible to prevent him from seeing them. He claims that the authorities in the Philippines would not be able to assist him as they have a conflict with the NPA. 

11.      The applicant provided two statements from friends who state that they applicant and his wife had an acrimonious relationship and he was threatened by his father in law on many occasions and his father in law was an “influential person”. The applicant also provided two police reports, both of which indicate that the incidents were reported in 2010. They refer to the applicant being threatened verbally by his father in law and “trhu txt msg” because he wanted to visit his children. The other police report states that the “victim personally appeared” to report that men were roaming around his home and that his father in law had beaten, kicked and punched him and pointed a gun at him because he had attempted to see his children.

12.      As indicated above, the application was refused by the delegate of the Department and the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. The findings of the previously constituted Tribunal are summarised in the decision record of the delegate in relation to the current application. The delegate states that the RRT decision record of 7 July 2011 indicates that the RRT did not accept that the applicant’s father in law was connected to the NPA; and found that nothing had happened to the applicant between 2003 and 2006. The RRT gave no weight to the police reports which were made in 2010, when the applicant was in Australia, or to letters purported to be from school friends which were identical in content. The RRT also found that the applicant could access State Protection if it was required. 

Current application

13.      When lodging the current application to the Department, the applicant provided a statutory declaration, dated 19 February 2014, in relation to his claims. The applicant states that in 2000 he received a call from his father in law who told him not to contact his wife and children. The applicant went to [Province 1] with his cousin in 2003 and when he arrived his father in law beat him and threatened to kill him. The applicant states that his father in law was a very dominant man. He was later informed by his neighbours that strangers were roaming around his house and monitoring him. The applicant states that his father in law was/is [an official] in the [Province 1] region and a member of the NPA. He states that the [Province 1] region is known as the region of the NPA and the Communist Party. The applicant’s father in law insisted that he join him as an assistant in the NPA but he refused to join the party as it is aligned to the Communist Party and the applicant did not want to have anything to do with it. The applicant believes that this is what led to the animosity and hatred from his father in law. The applicant states that in 2005, despite attempts to claim his wife and children back, he continued to receive threats and he left his home town in fear of being killed. He decided to leave the Philippines in order to escape any further harassment from his father in law, his hired killers and people in the NPA. The applicant took one year’s leave from his government position and applied for a visitor visa for Australia. He decided not to return due to his fear of his father in law and the NPA.

14.      The applicant provided a further “more detailed submission” of his claims in a statutory declaration, dated 19 March 2004. In the statutory declaration, the applicant states that he discovered that his father in law was associated with the NPA in 1995. He states that when he first began courting his wife his father in law was in [another country], but he was not “well received” by her other family members. He states that when his father in law returned to the Philippines and when he discovered that his daughter was pregnant he told them that they had to get married straight away and if they did not the applicant “would not see sunlight”. The applicant and his wife married immediately and later travelled to [location] where they settled permanently. The applicant next met his father in law in August 1997 when he travelled with his wife to his father in law’s home for the birth of their [first child]. His father in law scarcely acknowledged his presence and after the birth of his [first child] his father in law asked him to give him 150,000 pesos so he could buy a truck. The applicant could not afford the money and when he refused his father in law became very agitated and raised a machete. He then knocked him to the ground when he punched him with a closed fist. They left his home the following day and he did not see his father in law again until [after] their [second child] was born. His father in law was friendly towards him but then began asking him to join the NPA. The applicant refused but his father in law continued pressuring him. The applicant told him he would think about it and they returned to their home. Two days before his [first child]’s birthday in August 1999 his father in law came to visit them and during his stay he again attempted to pressure the applicant to join the NPA. The applicant was determined not to be bullied, but when he refused his father in law pointed a gun at him and kept it there for a long time. About an hour later a jeep drove up to his home, and inside the jeep were four men who were dressed in army fatigues. They saluted the applicant’s father in law and stayed at the applicant’s home for some time ridiculing the applicant. His father in law later left and he thought it was the end of the matter. However, in October 1999 his father in law telephoned him and told him to look out the window. The applicant was shocked to se a jeep with at least five or six men in it and they were holding guns and staring at him. The applicant told his wife what had ahpened when she returned home. He told his wife that he was not going to join the NPA and from then on they were constatntly arguing.

15.      The applicant’s wife advised his parents in January 2000 that she wanted to have the marriage annulled. In February 2000 whilst the applicant was away for work in Manila he received a call from his father in law who told him not to contact his wife and children. He discovered that his wife had left him and would not be returning home. The applicant was devastated and he tried to contact the [workplace] where his wife worked but she had left the [workplace]. He could not even telephone their house in [Province 1] beause when he tried the telephone numbers were not in service. About three years and nine months later the applicant’s parents received an anonymous call telling them that the applicant should go and see his children. In December 2003 he went to [Province 1] to visit his children, accompanied by his cousin. When he arrived at his father in law’s house his father in law was enraged and pointed a gun and him and threatened to kill him. The applicant’s father in law beat the applicant and his cousin and the applicant then returned to [location] a “broken man”. The applicant went to the police to try to lodge a complaint but because he had been attacked by his father in law they refused to lodge a complaint.

16.      The applicant states that following his return he was visited by ‘soldiers’ who he immediately knew had been sent by his father in law. They broke down his door and walked straight inside his house. The applicant was struck and fell to the ground. During the next two years he had no contact with his children. He was devastated that he had lost his children. In January 2005, the applicant made two trips to [in] disguise to see his children and managed to see his children from afar but could not speak to them or give them any toys or gifts. In February 2006 when he was granted the visa for Australia he decided to try to see his children on one last occasion. His parents told him that they would accompany him to [Province 1]. When he arrived at his father in law’s house, his father in law would not allow him to see the children and would not let him in. The applicant’s parents pleaded with him but his father in law refused. The applicant states that his father in law came out and told him never to show his face or step in the compound again or he would carry out his trheats. The applicant and his parents were then asked to leave.

17.      The applicant also refers to the delegate’s decision [in] March 2011 and disputes the findings made by the delegate. The applicant states that he knows that he will be subjected to torture or cruel or inhuman treatment if he returns to the Philippines because he has incurred the wrath of the NPA by openly criticising the NPA and his father in law through the Internet and in writing. He told his father in law in writing that he had ruined his life and he and his NPA supporters are criminals who will one day be punished. The applicant has been told that if he returns to the Philippines he will be “finished” and he knows the threats are true because he has faced the anger, hatred and venom of the NPA in the past.

18.      The applicant also provided a Police Report, dated [in] May 2010, stating that the date of the occurrence was [in] January 2004. It states that the applicant personally appeared in the office to report that his neighbour informed him that strange men were roaming around his house and acting suspiciously and he was fearful that it was men hired by his father in law. The report also states that prior to the last report [in] December 2003 the applicant went to visit his [children] in [Province 1] and he was beaten, kicked and punched by his father in law who pointed a gun at him and told him he wil kill him if he insists on coming and seeing his children. He was terrified and luckily he was shielded by his cousin. The applicant suffered bruises, a black eye and left face and back pain. Statements of support from two of the applicant’s friends who refer to the applicant’s acrimonious relationships in the Philippines due to his marriage were also provided.

19.      The decision record indicates that the applicant attended an interview [in] July 2014. However, the applicant was unwell and the interview was concluded. Following the interview, the applicant was sent a Natural Justice letter in which he was given an opportunity to comment on information indicating that he has made additional claims in relation to his father in law attempting to recruit him into the NPA by coming to his home in 1999 and being threatened and to have been assaulted by soldiers in 2003, and his claims to have known that his father in law was a member of the NPA, rather than simply “suspecting” have altered since the initial application.  

20.      In response to the Natural Justice letter, the applicant provided a further statutory declaration, dated 24 August 2014. The applicant states he knew from before his marriage that his father in law was a member of the NPA and he did not tell the RRT during the first hearing that “someone told me” that he may be a member of the NPA. He was not asked by the RRT whether he received further threats from his father in law and his detailed statutory declaration of 19 March 2014 provides details of the events that occurred. The applicant also states that at no stage was he asked about incidents or threats during his marriage and that is why he did not include the threats or incidents in 1999. He states that in relation to the “new claim” that he was assaulted by soldiers in 2003, the Tribunal did not ask him what happened when he went back to [Province 1] in 2003 and he has now related it in detail in his statement of 19 March 2014. The applicant did not realise that the associated violence, albeit at the instigation of his father in law, was something hehad to account for in detail in his initial claims. The applicant states that he last had contact with his father in law in 2003 and although he visited his home in 2006 his father in law did not allow him to enter the house.

21.      The applicant states that his account of what occurred in [Province 1] in December 2003 has been “consistent all along” and he has consistently claimed that his father in law kicked and beat him and pointed a gun at him. The RRT did not ask him what happened when he went back. The applciant states that there was no basis for the RRT to completely reject his claims that his father in law is a member of the NPA. The applicant was unrepresented when he appeared before the Tribunal and did not have an interpreter. He was confused and intimidated by the line of questioning taken by the Tribunal. The Tribunal also did not believe that his father in law had already caused him serious harm and would do so if he returned. The applicant states that the approach taken by the Tribunal during the first hearing was that he was fabricating his claims and this caused him “grief” and he decided not to say much. The applicant again states that he did not have the assistance of a representative when he arrived in Australia and when he appeared before the Tribunal he felt as though he was perceived as a criminal. The applicant also refers to the interview he had with the delegate in July 2014 and states that he was too unwell to participate, yet he was bullied into taking part in the interview. The applicant states that it is true he last had contact with his wife in 2000; his children are now [ages] and he speaks to them at the weekends; he last had contact with his father in law in December 2003 and although he made another trip to [Province 1] in 2006 his father in law would not allow him to enter the house and only his parents were allowed to enter the house.

22.      The applicant states that the fact that he last had contact with his wife in 2000 does not alter the fact that he has reason to fear for his safety. Nor does the fact that he has contact with his children alter the fact that he fears for his safety. The applicant states that he is a “sworn” enemy of his father in law and his children are old enough to understand that they cannot speak to him in the presence of their grandfather and mother because they will be severely punished or reprimanded. The applicant states that the fact that his father in law may now be [age] years of age does not detract from the fact that he has threatened him and there continues to be animosity because he is also an enemy of the NPA. The applicant’s [first child] has told him to never return to the Philippines and it is well documented that the police turn a “blind eye” to vigilante groups and “death comes very easy” in the Philippines.

23.      The applicant provided a copy of the delegate’s decision record to the Tribunal which set out the evidence provided in different applications, as well as his hearing evidence which was provided to the Department.

24.      The first named applicants appeared before the Tribunal on 29 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The applicants were represented in relation to the review by their registered migration agent.

25.      The applicant told the Tribunal during the hearing that he is in contact with his children every weekend. He showed the Tribunal “chats” between himself and his [first child] on Facebook and stated that he sends the children approximately $125 per month which is deposited into their bank account. When asked the last time he had seen his father in law, he stated that he went to [Province 1] in 2006 with his mother. The applicant did not see his wife or his children at that time because he was not allowed to enter the home. The applicant’s mother was told that the applicant could not see his children. When asked by the Tribunal why his father in law was so angry with him, the applicant stated that he did not want the applicant to mary his daughter because he preferred someone else, but his wife was already pregnant and they wer required to mary. The applicant stated that their relationship was initially good but it deterirorated and he lost contact with his children whom he last saw in December 2000 when his wife took them away. When asked why his father in law would have any interest in him given that he has not seen his wife or children for 15 years, the applicant stated that it is due to the vigilante group, the NPA, and his father in law was and is [an official] with the NPA.

26.      The applicant stated that in 2003 his father in law beat him and a gun was placed at his head. When asked at the Tribunal hearing about the incidents when the men had come to his home, the applicant stated tha this occurred in August 1999 and October 1999. When asked when the last time this occurred, the applicant stated that it was October 1999. When reminded that he had claimed that in 2003 his father in law had also sent men around to his home, the applicant then stated that 5 or 6 men came to his home. When asked why he had forgotten this, the applicant stated that he has provided details of it in his statutory declaration. The applicant stated that he did not report this incident to the police because they refuse to lodge a report if it is in relation to the NPA. The applicant told the Tribunal that he fears he will be tortured and harmed by the NPA and his children have told him he should not return because they know their grandfather is angry with him. The applicant knows his life is in danger in the Philippines. 

ASSESSMENT OF CLAIMS AND EVIDENCE

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, that there is a real risk that he will suffer significant harm?

27.      As indicated above, only the applicant has made claims to fear harm in the Philippines. The Tribunal has, therefore, considered the applicant’s claims that there is a real risk he will suffer significant harm in the Philippines. The Tribunal accepts the applicant’s evidence that he has experienced difficulties in relation to his marriage breakdown in the Philippines. The Tribunal also accepts that the applicant’s father-in-law did not want the applicant to marry his daughter and was upset that she became pregnant to the applicant before their marriage. The Tribunal accepts that they were required to marry due to the applicant’s wife’s pregnancy and that the marriage was unhappy. The Tribunal also accepts that the applicant’s wife took his children away from him in 2000 and his father in law refused to allow the applicant to see the children. The Tribunal accepts that the applicant’s father in law may have been abusive and angry towards him and threatened that he should stay away from his daughter and grandchildren. Whilst the Tribunal accepts that these incidents would have been very upsetting for the applicant, the Tribunal does not accept any of the applicant’s claims in relation to the NPA and considers that he has manufactured these claims in an attempt to establish that his father in law has powerful connections with the NPA. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.   

28.      The Tribunal firstly considers that the applicant’s evidence as to the harm he suffered from his father in law has become increasingly elaborate since the initial application. The Tribunal accepts that the applicant was unrepresented in relation to the initial application and that he appeared before the first Tribunal without the presence of an interpreter. However, the applicant has previously indicated that he speaks, reads and writes English. The Tribunal is satisfied that had there been any indication that the applicant required an interpreter that one would have been obtained to assist the applicant during the hearing.  The Tribunal accepts that the applicant has consistently stated that in 2003 his father in law pointed a gun at him when he attempted to see his children and that there were people roaming around his house after this incident. However, since that time, the applicant has added additional claims, including that his father in law assaulted him and knocked him to the ground in 1997; pointed a gun at him in 1999 when he refused to join the NPA; in August 1999 and October 1999 men in jeeps with guns were sent by his father in law came to his home, and they did so because they wanted him to join the NPA. He has also added that after his father in law did not allow him to see his children in 2003 that not only were men roaming around his home, but also that some men forced their way into his home and assaulted him.

29.      The Tribunal does not accept the applicant’s various explanations as to why they were not raised until 2014. The Tribunal considers that had the applicant been previously assaulted by his father in law, sought by persons associated with the NPA in 1999 and assaulted by men who entered his home in 2003 that these claims would have been made in the first application and raised at some time during the application for review to the previously constituted Tribunal. The Tribunal considers that they have been raised for the first time in 2014 because the applicant has previously been refused the grant of a Protection visa and he has added claims in an attempt to establish that he is entitled to Australia’s protection.  

30.      The Tribunal has doubts in relation to the applicant’s claims that he attempted to see his children in February 2006, but was not allowed to enter the [home]. The applicant had previously claimed that it was his “parents” who accompanied him to see his children in [Province 1], but he has since altered his evidence during the hearing in July 2015 to it being only his mother who went with him to [Province 1]. Nevertheless, the Tribunal accepts that the applicant attempted to see his children at some time prior to his departure from the Philippines and he was not permitted by his father in law. The Tribunal accepts the applicant’s evidence during the hearing that his father in law spoke to the applicant’s mother and would not allow the applicant to see his children. As discussed during the hearing, whilst the Tribunal accepts that this indicates that his father in law continues to harbor acrimony towards the applicant, and apparently considers him not fit to have contact with his family, the Tribunal does not accept that this indicates his father in law has or will attempt to harm the applicant. The Tribunal considers that had he wished to harm the applicant that he would not have simply remained inside his home and simply spoken to his applicant’s mother, which was his evidence during the hearing. The Tribunal does not accept that the applicant’s evidence in relation to this incident is consistent with his claims that his father in law will continue to seek to harm him or will ensure the NPA harms him upon his return. The Tribunal considers that this indicates his father in law did not wish the applicant to have any contact with his daughter or grandchildren due to his considerable dislike of the applicant. The Tribunal does not accept that it indicates he will seek to harm the applicant upon his return because of their acrimonious relationship or as a result of any political links.

31.      The Tribunal considers that the inconsistencies and significant embellishments since the first application are indicative of the fact that the applicant has fabricated his claims to fear harm at the hands of his father in law. In addition, the Tribunal considers that the considerable delay in the lodgment of the first application is further indicative of the fact that the applicant’s claims have been fabricated. In his statutory declaration to the Department in relation to the current application, the applicant states that when he arrived in Australia he was in a state of severe depression, and he realised he had overstayed his initial visa which sent him further into a state of depression. Due to his constant fear of being caught by the Department he did not come forward to lodge an application. The applicant believed that he would be placed in a detention centre and deported to the Philippines where he would suffer severe punishment. It was only when his [child] was born that he realised he needed to access medical facilities and a friend told him he could apply for protection. The applicant states that he has genuine fears of returning to the Philippines despite the fact that he had not applied for protection until 2010. When the previous Tribunal advised him that the delay may indicate that his fear is not well founded, he replied that when he read that Department’s decision he knew he had failed. When asked at the hearing held in July 2015 about the delay in the lodgement of the application, the applicant stated that he was “in depression” and was a broken man when he came to Australia, and it was only after some time that he learned he could make an application for protection. When advised that there is a large Filipino community in Australia, the applicant again indicated that he had no assistance and was depressed as a result of his circumstances.

32.      The Tribunal has had regard to the applicant’s claims regarding the reasons he delayed lodging an application for protection in Australia. The applicant has claimed, more recently, that not only was he sought by his father in law and threatened with a gun, that he was assaulted by persons who broke into his home and he was threatened by them due to his refusal to join the NPA and the fact that he spoke out against them. The applicant has claimed that these incidents occurred from 1999 until 2006 when he left the Philippines. The applicant is an educated person, who claims he was a [occupation] in a [workplace], and had enough resources available to him to come to Australia. The Tribunal considers that if he was in genuine fear of threats and harm from his father in law and other persons associated with the NPA, which he claims forced him to flee the Philippines, that he would have made an application for a Protection visa prior to January 2011 when the first application was lodged, which was some five years after the applicant’s initial arrival in Australia.

33.      The Tribunal is not satisfied, having considered all of the evidence, that the applicant’s account of his reasons for leaving the Philippines is truthful. The Tribunal accepts that the applicant has consistently claimed that his father in law pointed a gun at his head in 2003 when he attempted to see his children. Given the serious concerns in relation to the applicant’s credibility the Tribunal does not accept that he did so or that he physically assaulted him during that time or at any other time. Nor does the Tribunal accept that the applicant’s father in law is or was a member of the NPA or that he ever attempted to force the applicant to join. The Tribunal also does not accept that the applicant has ever been sought by anyone associated with the NPA or that he left the Philippines as a result of threats from his father in law or the NPA. The Tribunal does not accept that the applicant has incurred the “wrath” of the NPA or that he has openly criticised the NPA and his father in law through the Internet or in writing, as he has previously claimed.

34.      The Tribunal considers that the applicant left the Philippines because he was unable to have any contact with his wife or children. The Tribunal accepts that this was deeply upsetting for the applicant but does not accept that a marital breakdown or the aftermath establishes that the applicant has suffered significant harm in the Philippines. Nor is the Tribunal satisfied that it establishes that there is a real risk he will suffer significant harm upon his return to the Philippines. The Tribunal gives no weight to the documents from his friends which focus on the applicant’s unhappy marriage and considers that they have been provided to assist the applicant. The Tribunal does not accept that they establish that the applicant has been threatened and harmed by his father in law or that his father in law is a member of the NPA. The Tribunal also gives no weight to the Police reports which were made in 2010 when the applicant was in Australia. The applicant told the Tribunal during the hearing that they are dated 2010 because they were lost or not kept when they were made earlier and his [sibling] made the reports again. The Tribunal does not accept the applicant’s explanation during the hearing. The Tribunal considers that the reports have been prepared on the basis of what was reported to the police by the applicant’s relative some seven years after the incidents purportedly occurred and are not based on any investigations or knowledge of the police in relation to these incidents. The Tribunal does not accept that the documents overcome the problematic nature of the applicant’s own evidence in relation to these issues. 

35.      The applicant told the previously constituted Tribunal that he is concerned that his Australian born [child] will be unable to obtain medical help in Australia. He has also claimed that as he has been away from the Philippines for six years he would have difficulty finding a job. The Tribunal is not satisfied that the applicant’s [child] will be unable to obtain medical care in the Philippines. Whilst the Tribunal accepts it will be difficult for the applicant to re-establish himself in the Philippines with his partner and Australian born child, the applicant is educated and has been employed at a professional level. The applicant also has family support in the Philippines and although he has previously been denied contact with his children, one of his children in the Philippines is an adult and the other is approaching adulthood and as such, is able to make their own decisions, as to their contact with the applicant. The Tribunal accepts that the relationship between himself and his father in law and with his former wife may continue to be acrimonious. However, the Tribunal does not accept that he has been harmed in the past by his father in law and is not satisfied that there is a real risk he will suffer significant harm from his father in law in the Philippines.

36. Accordingly, having considered all of the evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, that there is a real risk that he will suffer significant harm. Accordingly, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life; the death penalty will be carried out on the applicant; or the applicant will be subjected to cruel or inhuman treatment or punishment; or the applicant will be subjected to degrading treatment or punishment. The Tribunal finds, therefore, that the applicant does not satisfy the criterion set out in s.36(2)(aa). It follows that the applicant’s family members are also unable to satisfy the criteria set out in s.36(2)(c).

CONCLUSIONS

37. 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

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

Susan Pinto

Member

ATTACHMENT - RELEVANT LAW

1. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

   ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.’

   Complementary protection criterion

2. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Ministerial direction

1. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.