1421196 (Refugee)

[2016] AATA 3665

1421196 (Refugee) [2016] AATA 3665 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421196

COUNTRY OF REFERENCE:                  Philippines

MEMBER:Susan Pinto

DATE:23 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 23 March 2016 at 9:49am

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. The applicant is a citizen of the Philippines, aged in her mid [age]s.  She entered Australia [in] March 2008 as the holder of a Subclass 572 (Student) visa. The applicant subsequently undertook studies in Australia and was granted a Subclass 485 (Skilled Graduate Provisional) visa. That visa expired [in] March 2014.

2. The applicant applied to the Department of Immigration for the Protection visa [in] March 2014. The applicant essentially claimed that due to her relationship with another man, with whom she had a child, her former husband will harm her and her child in the Philippines.  

3. The delegate refused to grant the visa [in] December 2014. The delegate did not accept that there was any evidence that the applicant’s former husband is an abusive or violent man or that he will harm her upon her 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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

4. A summary of the relevant law is set out in an attachment to this decision. The issues in this review are whether the applicant has a well founded fear of persecution in the Philippines for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to the Philippines, there is a real risk that she will suffer significant harm. The Tribunal must consider, therefore, whether the applicant has a well founded fear of persecution. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia that there is a real risk that she will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. When lodging the application to the Department, the applicant stated that she is from [location] in [a province]. She stated that she speaks, reads and writes Tagalog, English and [dialect]. She stated that she belongs to [an] ethnic group and her religion is [deleted]. She also indicated that prior to her arrival in Australia she had lived for the previous 10 years in [a] City.

6. The applicant also indicated that she has had [number] years of education, including a [qualification] from [a university] in [the] City. She also indicated that she had completed a [course] in Australia. The applicant also indicated that since arriving in Australia she has been employed as a [various occupations].

7. In response to questions on the application form as to why she could not return to the Philippines, the applicant stated that her former husband threatened that something would happen to her if she returns to the Philippines because she has shamed their family by having an affair with [Mr A] that led to her having a baby. The applicant cannot bring her baby from [Mr A] to the Philippines because she does not have a passport for [him/her] and the only place she can stay is in Australia. The applicant also states that there is a “strong likelihood” that her personal safety and that of her [young] child will be compromised because even while she was in Australia her former husband subjected her to verbal abuse and threats. He has threatened her if she returns to the Philippines. The applicant states that she fears for her life and that of her child if she returns. The applicant is looking after her child because [he/she] has been abandoned by [his/her] father and she cannot travel home with [him/her] because [he/she] does not have a passport. The applicant states that her former husband cannot forgive her for having a child with another man only to be abandoned by him. The threats to her life are real and he said to her that she has “put his name in shame and he wanted revenge”.

8. The applicant states that the authorities cannot protect her because unless “you are close to the authorities you cannot get protection”. The applicant also fears that her young baby will be held for ransom because [he/she] is an Australian citizen.

9. Documents provided to the Department in support of the application included Consent Orders relating to child support for the applicant’s [child] born on[date]; the applicant’s academic certificates relating to her studies; DNA testing showing that [Mr A] is the biological father of the applicant’s child; and a paediatrician’s report stating that the applicant’s [child] has “[condition]” and requires [treatment].

10. The applicant was interviewed by the delegate of the Department [in] October 2014. The Tribunal has listened to the CD Rom recording of the interview.

    Application for review

11. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

12. The applicant appeared before the Tribunal on 22 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of persecution for one of the five Convention reasons?

13. As stated above, the Tribunal must first consider whether the applicant has a well founded fear of persecution for a Convention reason.

14. As indicated above, the applicant has essentially claimed that her former husband will harm her due to her brief relationship with another man which resulted in her having a child with that man. The applicant also fears that her [child] will be kidnapped for ransom and will have no future in the Philippines. Having considered all of the evidence, the Tribunal accepts that the applicant is concerned for her [child]’s future and would prefer for [him/her] to be raised in Australia. The Tribunal does not accept that the applicant genuinely fears that her former husband will harm her or she fears her [child] will be kidnapped. The Tribunal is drawn to the conclusion that the applicant has applied for Australia’s protection as a means of remaining in Australia and not because she has any genuine fear of harm if she returns to the Philippines. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

15. At the Department interview, the applicant stated that she fears harm her former husband whose name is [Mr B]. The applicant and [Mr B] came to Australia together in 2008 and he left Australia in 2012. The applicant separated from [Mr B] in June 2011 but they stayed under one roof until she moved out in February 2012. [Mr B] and the applicant owed money together and he yelled at her several times. He is currently trying to obtain an annulment which costs $[amount]. The applicant saw [Mr B] when he came to visit her in hospital when she had the baby. The applicant does not know why he came to see the baby.

16. The applicant told the delegate that she met [Mr A] through a dating website. The applicant’s husband knew it was not his baby because she had not had a sexual relationship with him for some time. The applicant stated that her former husband threatened her and told her he wants money. His [brother] is also angry at her and [Mr B] told her, when he spoke to her about the annulment, that she is lucky she is in Australia because otherwise he would kill her. The applicant did not report any of this to the police because she was scared. The applicant agreed that he had not physically abused her but she believes that he could pay to have someone harm her. The applicant was advised that her evidence does not indicate that her husband was ever violent or would be in the future. The delegate commented that to the contrary she lived in same room as her husband when she had a short affair with another man. Her husband did not do anything to her when he found out she was pregnant and she remained living with him and then left of her own accord. He then visited her in hospital and this does not support her claim that he would kill her if she returned to the Philippines.

17. At the Tribunal hearing, the applicant confirmed that she came to Australia as a student. She had hoped to obtain Permanent Residency through the Skilled visa program but her occupation was removed from the Skilled occupation list. The applicant also told the Tribunal that she came to Australia with her husband [Mr B] who returned to the Philippines permanently in December 2012. The applicant last had contact with [Mr B] in March 2015 when he asked her for money and sent her the annulment papers to sign. The applicant indicated that she paid some money to [Mr B] for the annulment, but she has been able to give him all of the money. She does not know whether the annulment has been granted.

18. The applicant also confirmed during the hearing that she commenced a relationship with [Mr A] whilst she was living with [Mr B] in Australia. The applicant believes that [Mr B] had been communicating with another woman through text messages and she and [Mr B] had separated whilst living under the same roof. The separation took place in June 2011 and the applicant and [Mr B] continued living together until February 2012. The applicant became pregnant in January 2012 and she and [Mr B] lived together for a few weeks before the applicant decided to move out. When asked what [Mr B] said when she told him about the pregnancy, the applicant stated that he was very angry and shouted at her. The applicant confirmed that [Mr B] visited her in hospital after she had the baby and brought his friend with him. When asked why he did so, the applicant stated that he wanted to see how she was and to see the baby.

19. When asked whether [Mr B] has ever been violent towards her, the applicant stated that he was not physically violent, but he was verbally abusive. He also slapped her on one occasion whilst they were in the Philippines when she threatened to leave him. The applicant indicated that there was no other violence since that time but when she told him she was pregnant he told her that she was lucky they were in Australia because he could kill her if they were in the Philippines. The Tribunal commented that it does not appear [Mr B] has violent tendencies or she has any fear that he would harm her, given that she lived with him whilst commencing a sexual relationship with another man, and continued to live with him whilst pregnant for a short time, and was willing to tell him she was pregnant. The Tribunal also commented that it appears that [Mr B] has had an affair with another woman and is trying to have the marriage with her annulled, which does not indicate he wishes to continue to have any continuing relationship with her. The applicant stated that her former husband’s [brother] threatened her a month after finding out she was pregnant. The applicant is worried that she will encounter [Mr B]’s [brother] if she returns to the Philippines.

20. The Tribunal has considered the evidence set out above. The Tribunal accepts that [Mr B] was angry when he found out that the applicant was pregnant to another man whilst he was living in the same house as her and he once slapped her when she threatened to leave him whilst they were in the Philippines. The Tribunal also accepts that his [brother] was also angry when he found out that the applicant was pregnant. However, the Tribunal does not accept that either her former husband or former brother in law threatened to kill her or harm her[child]. Nor does the Tribunal accept that the evidence establishes that [Mr B] will take any action to harm her upon her return to the Philippines, or that the applicant genuinely fears harm from him or his brother. The Tribunal does not accept that the applicant would commence an online relationship, which soon became a sexual relationship, with another man whilst living with her husband if she feared he could become violent and harm her if he became angry. The Tribunal also does not accept that the applicant’s actions in remaining living with[Mr B], even after they had formally separated under the same roof, indicates that she feared he could at some point become violent and harm her. The Tribunal does not accept that there is any evidence prior to the commencement of her relationship with another man that her husband had seriously harmed her. Nor does the Tribunal accept that such tendencies developed after the applicant commenced the relationship with another man and became pregnant and gave birth to another man’s child. The applicant’s own evidence indicates that she remained living with her former husband for a short time even whilst she was pregnant until she decided to move out and he then visited her in hospital so he could see her and the baby. He then remained in Australia after the birth of the child Philippines and did not attempt to harm the applicant during that period. The Tribunal has had regard to the claims that he would not do so in Australia but could do so in the Philippines but considers that if [Mr B] was so angry about the pregnancy and had violent tendencies that this would have prevented him from taking some action to harm the applicant whilst they were living together or before he returned to the Philippines.

21. The Tribunal further considers that [Mr B]’s actions in seeking an annulment do not indicate that he wishes to harm her or control her or take money from her upon her return to the Philippines. The applicant’s evidence indicates that their relationship was troubled due to his continual contact with another woman, and not because of her husband’s violence or abusive behaviour. The applicant’s own evidence also indicates that her former husband has sought to distance himself from the applicant by seeking the annulment, and they have had no contact for some 12 months. The Tribunal does not accept that his actions are of someone who wishes to harm the applicant for commencing a relationship with another man and having a child with that man. The Tribunal instead considers, as discussed during the hearing, that his actions indicate a desire to end his relationship with the applicant by formalising their separation and to cease contact with her.

22. The Tribunal is drawn to the conclusion that the applicant is well aware that her former husband is not a violent or physically or verbally abusive man. Whilst the Tribunal accepts he may well have been disappointed and upset that the applicant commenced a relationship with another man to whom she became pregnant, the Tribunal does not accept that he threatened the applicant and told her he would kill her if she was in the Philippines or that he has ever harmed the applicant, apart possibly from slapping her on one occasion whilst in the Philippines. The Tribunal is also not satisfied that her former husband’s [brother] has harmed the applicant or that he intends to do so in the future.  The Tribunal does not accept, therefore, that [Mr B] or his brother will harm the applicant in any way or that they will extort money from the applicant or pay someone to harm her.

23. The Tribunal has also considered the applicant’s claims in relation to her fears for her [child] who is an Australian citizen. The applicant told the delegate during the interview that she fears harm on behalf of her Australian citizen [child] who could be kidnapped for ransom, and it is too risky for her [child] if they return to the Philippines. When asked why she believes her [child] will be kidnapped, the applicant stated that Filipinos will do anything and everything for money. The applicant was advised by the delegate that there are cases where tourists’ children have been abducted but no evidence of the children of Filipinos being abducted. The applicant stated that they would find out from her former husband that her [child] is an Australian citizen and [he/she] will be at risk of abduction. When asked at the hearing about her fears for her [child], the applicant stated that she fears [he/she] will be targeted because [he/she] is an Australian citizen and she is from a mixed marriage. The Tribunal commented that the applicant is not in a mixed marriage and the evidence does not support her claim that her [child] will be targeted upon their return to the Philippines.

24. The Tribunal accepts that there is some evidence of kidnappings in the Philippines. However, the number remains low in the context of a large number of foreign nationals travelling to the Philippines. The figures cited by the delegate indicate that between 2013 and 2014 there were 20 kidnappings of foreign nationals in the Philippines, but none of those persons were Australian citizens. The most recent DFAT Smart Traveller of December 2015 also indicates that there remains a risk of kidnappings in the Philippines, but these are especially in the coastal resorts and isolated coastal locations. The Tribunal is not satisfied on the basis of the evidence before it that there is a real chance that the applicant’s Australian citizen [child] would be kidnapped in the Philippines.

25. As stated above, the applicant has indicated that she will have difficulties in the Philippines due to her financial situation and that she wishes her child to live and be raised in Australia. The applicant did not claim she would suffer harm as an unmarried mother. However, the Tribunal notes the information cited by the delegate indicates that in 2008 37% of babies born in the Philippines were to unmarried mothers and there is a high incidence of unmarried mothers. The Tribunal is satisfied that the applicant will be able to return to the Philippines with her [child] and re-establish herself. Although not raised at the hearing, the Tribunal is also satisfied that any needs her medical needs her [child] has will be accommodated in the Philippines. As discussed during the hearing, the applicant is well educated and has been previously employed in both the Philippines and Australia. Although the applicant indicated that she does not wish to be a burden to her [mother], she did not indicate she would not have her support if she returned to the Philippines. The Tribunal accepts that the applicant will have difficulty re-establishing herself in the Philippines, but is not satisfied she will be unable to do so. The Tribunal does not accept she is without family support or that she will be unable to obtain employment and to raise and educate her [child]. The Tribunal does not accept that the applicant will be unable to obtain a passport for her [child] to enable [him/her] to travel to the Philippines.

26. The Tribunal is not satisfied, having considered all of the evidence that there is a real chance that the applicant will suffer serious harm from [Mr B] or his brother or that she will suffer serious harm for any Convention related reason. The Tribunal finds, therefore, that the applicant does not have a well founded fear of persecution if she returns to the Philippines now or in the reasonably foreseeable future.

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

1. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The Tribunal has found above that there is not a real chance that the applicant will suffer serious harm if she returns to the Philippines. For the same reasons as those set out above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer serious harm from [Mr B], his [brother] or anyone else if she returns to the Philippines. Nor is the Tribunal satisfied that her [child] will suffer harm in the Philippines. Accordingly, The Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, there is a real risk that she would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that she would be arbitrarily deprived of his life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

   CONCLUSIONS

2. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

3. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

4. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Susan Pinto
   Member

   
   

   ATTACHMENT - RELEVANT LAW

6. 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 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.

   Refugee criterion

7. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

8. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

9. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   Complementary protection criterion

10. 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

    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.