1503042 (Refugee)

[2016] AATA 4373

1503042 (Refugee) [2016] AATA 4373 (30 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503042

COUNTRY OF REFERENCE:                  Philippines

MEMBER:Tania Flood

DATE:30 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 30 August 2016 at 11:53am

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 first and second named applicants, who claim to be citizens of the Philippines, arrived in Australia [in] March 2006 as holders of [temporary] visas.  The applicants remained in Australia unlawfully after their visas expired [in] April 2006.  The third named applicant was born in [Australia].  The first named applicant (the primary applicant) was located by Departmental Compliance officers [in] April 2014 and subsequently granted a Bridging visa.  The applicant was granted further Bridging E visas [in] April 2014.  [In] April 2014 the primary applicant lodged a valid Protection visa application and was granted an associated Bridging E visa.  The delegate refused to grant the visas [in] February 2015.

3. The primary applicant appeared before the Tribunal on 15 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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

10. 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 dependent children.   The Tribunal is satisfied, on the evidence before it, including a copy of a New South Wales Birth Certificate, that the second named applicant is the spouse of the applicant and the third named applicant is the dependent child of the applicant and the second named applicant.

11. The issue in this case is whether there is a real chance the applicants will face serious harm on return to the Philippines for a Convention reason or alternatively whether there are substantial grounds for believing there is a real risk they will suffer significant harm if removed from Australia to the Philippines. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Summary of claims

12. In a statutory declaration dated  [April] 2014 the applicant claims:

13. Her father is the owner of [amount] hectares of land, which is located in [village], Mindoro, Philippines.  The land was inherited from her [relative] and was used for farming and producing food and all their basic necessities of life.

14. One day a family came to her father and asked him permission to use part of their land temporarily as they were in need of help and had nowhere to go.  They assured her father that at any time he needed the land back they would leave.  Her father agreed but it was a big mistake.

15. Later on, when her father needed the land he asked the family to leave, but they refused and told him they had the right to remain on the land.  Her father travelled to Barangay Captain and spoke to the Police Authority to file a formal complaint against this family.  Still the family refused to vacate the land.

16. Since that time, she and her family have experienced physical and verbal harassments, including death threats from this family.  Her father reported everything to the police but nothing was done to protect them. 

17. Later they discovered that the family are members of the New People’s Army (NPA), the armed wing of the Communist Party of the Philippines.  They are an extremist group and are very powerful.  All their views and insights are against the government and they have many weapons.  Wherever this violent group makes its roots, it becomes a stronghold in that area and the people who hold local authorities are targeted with violence and death to them and their families if they try to stop these people or help the local people who have been forced out of their homes and land.  The authorities are defenceless to stop the killings that follow if you do not conform to this lawless group. 

18. They along with many others were forced from their land by the NPA and due to lack of resources they had to move to Manila to find work there.  Her mother and her [relative] are the only ones who live on their land.  Her mother received a ‘tax’ demand from the NPA, but she refused to give one cent to them.  They told her mother if they did not receive payment from her, they will burn their ancestral home and will locate the rest of the family and kill them all.  When the applicant learnt of this she got her mother from their home and they all moved far away with her because of this real fear and threat to our lives.

19. The extremist group targets vulnerable families like theirs and they cannot get any protection from local government or local authorities.

20. She did not want her husband to become involved in this problem and with day to day necessities becoming harder to get and due to their fear, they applied to come to Australia as [temporary entrants]. 

21. Their [child] was born in Australia and was recently diagnosed with [a disability] and is currently on medication.  They are grateful to live in a country where proper help can be obtained and where children are protected from threat of violence and death. 

22. They cannot go back to the Philippines because the NPA is still looking for their family and their lawless power grows stronger every day and with that so do the threats of death to her and her family.

    The New People’s Army (NPA)

23. The New People’s Army (NPA), formed in 1969, is the military arm of the Communist Party of the Philippines.  Its stated objective is to overthrow the Filipino Government through protracted guerrilla warfare.  The NPA is primarily a rural-based guerrilla force, however it reportedly has an operational infrastructure in urban areas that supports its military activities.  The group is reported to have a force of between 5,000 and 9,000 personnel.  On 9 October 2011, the Inquirer reported that according to the Philippine Army, the Southern Mindanao region is considered to be the epicentre of the NPA insurgency.[1]

    [1] US Department of State 2009, Country Reports on Terrorism 2008, 30 April; Southern Mindanao is NPA’s new epicentre, 9 October 2011, Inquirer.

24. The NPA’s strength peaked in the mid-1980’s, when it’s armed regular numbered 12,000 however the end of the Marcos regime in 1986 saw the group’s popularity decline and CPA-NPA splits which purged hundreds of cadres.  In 2006 former President Gloria Macapagal Arroyo declared an all-out war against the NPA and gave the armed forces two years to eliminate the insurgency.  The deadline was extended to May 2010.  In June 2010, the then President Benigno Aquino took office and announced the government would commence peace talks.[2]

    [2] FP says CP-NPA headed for another split, 2010, Dateline Philippines, 20 January; Human Rights Watch 2008, Justice Absent in Killings and Disappearances, 27 March.

25. A report by the International Crisis Group from February 2011 provides a good overview of the NPA.  According to the report:

    The Communist Party of the Philippines (CPP) and its New People’s Army (NPA) launched their armed struggle against the Philippine government in 1968.  The organisation was strongest in the 1980’s as the repressive government of Ferdinand Marcos fell and was replaced by the Cory Aquino administration.  The insurgency had become a social movement with an array of above-ground groups intertwined with an underground guerrilla army.  Counterinsurgency operations coupled with an internal split crippled the organisation and cost it many of its supporters in the early 1990’s.  By 2000, the CPP-NPA had regained strength and has since proved remarkably resilient.  It remains active in mountainous and neglected areas countrywide.[3]

    [3] International Crisis Group 2011, The Communist Insurgency in the Philippines:  Tactics and Talks Crisis Group Asia Report No 202, 14 February 2011.

26. A 2012 DFAT report, states that the communist insurgency in the Philippines continues its gradual decline but remains resilient and retains a presence across parts of the archipelago.  The AFT estimates that the NPA had around 4,100 armed members by the end of 2011 and estimates that the NPA exerts a degree of control in under three per cent of village-level municipalities nationwide compared to 20% in 1986.  The NPA targets active Philippine security forces, including members of the armed forces and national police.  It has targeted individuals it believes to have been involved in counter-insurgency operations against it.  There are few indications that the NPA has systematically targeted former military personnel on the basis of their service.  But targeting of retired military personnel cannot be discounted.[4]

    [4] Philippines: CIR12/35 – New People’s Army – Communist Insurgency Update and Assessment of Capabilities, Australia, DFAT 6 June 2012

27. A recent Gulf News article reports the death of five government troopers by the NPA in Southern Luzon.  According to the Southern Luzon Command Chief the insurgents are trying to show that they are still a force to reckon with.  He is quoted as saying “The NPA is a diminishing group in Southern Luzon.  As such, they resort to terror acts like these explosions to project that they are still a strong force”.  The report goes on to state that during election periods the NPA takes advantage of the situation by raising funds for the insurgency by demanding revolutionary taxes from politicians as well as businesses.  Forty-six years into the insurgency the NPA and the Communist Party of the Philippines are nowhere near their goal of achieving a strategic stalemate with the government.[5]

    [5] CX6A26A6E2421 “Philippines: Five killed after upsurge of attacks by insurgents”, Gulf News, 16 March 2016.

28. It is reported that the NPA primarily targets Philippine security forces and government officials.[6]  The main targets of NPA extortion are reported to be agro-industrial firms, mining companies, bus operators, construction companies undertaking government projects and small businesses such as neighbourhood grocery store owners.[7]

    FINDINGS AND REASONS

    [6] US State Department 2011, Country Reports on Human Rights Practices 2010; International Crisis Group 2011, The Communist Insurgency in the Philippines:  Tactics and Talks Crisis Group Asia Report No 202, 14 February 2011.

    [7] NPA rebels rake in millions from extortion – military, 2010 Agence France Press, 7 March

    Country of reference

29. At the Tribunal hearing the primary applicant produced a copy of a Republic of the Philippines passport with number [deleted] which confirms her claimed identity, date of birth and nationality.  Attached to the Department file is a copy of the second named applicant’s Republic of the Philippines passport with number [deleted].  Also attached to the Department’s file is a copy of the third named applicant’s [Australian] birth certificate which lists  [parents] as persons having been born in the Philippines.  In the absence of any evidence to the contrary the Tribunal accepts the applicants are nationals of the Philippines and has assessed their claims against that country.

30. The applicants do not claim to have citizenship of any other country or the right to enter and reside in any other country.  In the absence of any information to the contrary the Tribunal is satisfied that the applicants do not have a right to enter and reside in any other country, and therefore they are not excluded from Australia’s protection obligations under s36(3) of the Act.

31. The primary applicant appeared at a Tribunal hearing to give evidence.  By way of background she stated she was born in [village], Oriental Mindoro, Philippines.  She stated that she is married to [name] and they have a [child], both of whom are included in her application for protection on the basis that they are members of the same family unit.  She confirmed they are making no claims of their own.

32. The primary applicant stated that she finished her final years of schooling in Manila and obtained a [qualification] from [a] University.  After graduating she worked at a [workplace] for nine years from 1997 until she departed the Philippines in 2006.  She confirmed she has not lived at her family property since 1989 but she returned home to the province frequently for holidays until 2002.

33. The primary applicant stated her father died in December 1998 but her mother and [siblings] remain in the Philippines.  Her mother and [a sibling] are currently living in Quezon City and [another sibling] in living in [a town] six hours north of Manila. 

34. Based on the consistency of her evidence, the Tribunal accepts that her family owned a piece of land in [village], Mindoro on which they engaged in subsistence farming.  The Tribunal accepts the primary applicant’s father gave permission for a family to live temporarily on a section of that land in 1994 on the proviso they depart if the land was needed in future.  The Tribunal accepts the primary applicant’s evidence that the family were members of the NPA and later refused to leave when asked to do so in about 1996.  The Tribunal also accepts the primary applicant’s father made unsuccessful attempts to reclaim the land before he died in December 1998 but that no further legal action was or is underway.

35. For the following reasons, the Tribunal does not accept the primary applicant’s family received death threats or tax demands from the NPA, that the primary applicant’s mother was forced from the land in 2002 in the manner described or that the NPA are continuing to look for the family in order to eliminate them.

36. When asked about the threats made to her family the primary applicant stated that the NPA family had [children] and they were very aggressive.  She said that they threatened to kill the family.  When questioned further, she stated that nobody in the family was ever physically harmed. 

37. When asked about the tax demand made to her mother, the primary applicant stated that her mother received a letter from the NPA demanding money but she refused to pay it.  She said a second letter was sent a week later stating that if the money was not paid they would burn down the ancestral home.  She said her [relative], who was living with her mother on the land at that time, phoned her in Manila and she and her [siblings] went back to the property to take their mother away.  The Tribunal asked the primary applicant if she has copies of those letters and she said she does not.  She added that she cannot ask her mother about the letters now as she is hospitalised and has [a medical condition]. 

38. The Tribunal put it to the primary applicant that it does not appear the NPA family or the NPA were intent on harming her mother as they had ample opportunity to do so but did not between 1996 or 1998 when her father died and 2002 when she eventually went to live with her and her [sibling].  Further, the Tribunal pointed out that if serious threats were being made to their mother she and her [siblings] would surely have taken steps to remove her from the land far sooner.  The primary applicant replied that she and her [sibling] were living in a boarding house in the city at the time and were not in a position to bring their mother to live with them and in any event she did not want to leave.  The Tribunal indicated that this did not appear to be justification for leaving their mother in a life threatening situation.   When asked where her mother lived after 2002 the primary applicant stated that she went to live in their house in Laguna but since 2015 she and her [a sibling] have been living in Quezon City, where they rent from a distant relative.

39. The Tribunal questioned why the NPA would have targeted a widowed woman for taxation or extortion noting that this does not appear to be their reported practice. The Tribunal pointed out that country information indicates the NPA is reported to extort money from businesses and politicians.   The primary applicant stated that the NPA does ask farmers for money and if they refuse they kill their farm animals. 

1. The Tribunal acknowledges the primary applicants responses but is not persuaded on the bulk of the evidence before it that the family received death threats or that her mother had any tax demands made on her or that threats were made to burn their home.  The Tribunal finds it significant the primary applicant stated at hearing that she frequently returned to the family property during her years of studying and working in Manila and her mother remained living on the property for six years after the problems reportedly commenced. The Tribunal is of the view these events suggest that the family was not threatened as claimed.   

2. Further, the Tribunal does not believe the claimed taxation demand is supported by the country information which is referenced above.  This information indicates that the NPA extorts businesses to fundraise for their activities.  While the Tribunal accepts the NPA has encroached on their land and may have since built additional dwellings on the property as claimed by the primary applicant at hearing, the Tribunal does not accept that the primary applicant’s family received death threats from the NPA family or the NPA itself.  Further the Tribunal is of the view it makes little sense that the primary applicant’s elderly, widowed mother was extorted for money or threatened with having her house burnt down.  On the evidence before it, the Tribunal considers it more likely the applicant’s mother could no longer sustain the property on her own, with help only from a distant relative as claimed and left the property to live with her [children] in their home in Laguna.

3. Despite that the Tribunal has discounted the claimed death threats and extortion demands the primary applicant was asked whether any of her family has experienced any harm from the NPA family or the NPA since they vacated the land in 2002.  She said that so far nothing has happened but that when her mother and [a sibling] were living in Laguna two people on motorcycles came to the area and asked their neighbours who was living in the house.  When asked who these people were she said she assumes they came in connection with the situation surrounding their property.  She stated that her mother and [sibling] avoided harm because they were moving from place to place in the Laguna area.  When asked if they reported the matter to the police the primary applicant stated that her [sibling] made a report to the police in Laguna in 2014 but nothing happened because they could not tell the police who the people were.   When asked when last anybody was reportedly looking for them she said that this year her [sibling] told her that the neighbour from Laguna had again said somebody was looking for them.  The Tribunal asked whether anybody has reportedly been looking for her mother and [sibling] in Quezon City and she said that so far they have not but her mother is in the hospital and her [sibling] is with her most of the time.

4. The primary applicant’s evidence about the NPA’s claimed attempts to locate her family members since 2002 is in the Tribunal’s view vague, lacking in detail and somewhat implausible.  She has presented no credible evidence to support that the people who were looking for her mother and [sibling] were from the NPA family living on their land or the NPA itself.  Further, she did not in the Tribunal’s view provide a plausible explanation as to why the people on motorbikes did not simply approach their home in Laguna instead of just asking the neighbours about the identity of the persons living there.  The Tribunal considers it would have been a simple matter for them to wait until they returned to the house but on the primary applicant’s account they did not.  When this was put to the primary applicant she stated that it was because her mother and [sibling] were moving from place to place and Laguna is a big area.  The Tribunal did not find it plausible that her elderly mother and [sibling] were in a position to continually change house and in any event it makes little sense they would have remained in the same area if that was the case.  Further it seems coincidental that on the occasion or occasions the people on motorbikes came enquiring about them they were residing somewhere else. 

5. The Tribunal is not persuaded on the evidence before it that the NPA family or the NPA itself have or are looking for the primary applicant’s family members in Laguna or Quezon City.  Nor does the Tribunal consider they would be motivated to do so from 2002 to the present, some fourteen years after they successfully took over their land.  When asked why the primary applicant thinks they would be interested in locating them she said it is because they want to eliminate them as they have taken their land.  The Tribunal put it to the primary applicant that they have no cause to look for them because they have already successfully seized their land without incident. Further, the Tribunal pointed out that contrary to her claim that the NPA’s lawless power grows stronger every day; country information indicates the NPA’s forces are declining and it is no longer the force it once was.  Further, the NPA is not significantly active in urban areas and its present day targets are the security forces and government officials.  The Tribunal stated that it makes little sense the NPA family or the NPA itself would spend fourteen years looking for her family particularly as they have occupied their land without any hindrance from 2002.  She said it is difficult for them to believe as well.

6. Having considered the evidence before it, and for the reasons outlined above, including that her mother was never physically harmed even when she remained on the land for several years after it was occupied by the NPA, the Tribunal does not accept the NPA family or the NPA have or will look for the primary applicant or her family members with a view to killing them.  Nor does the Tribunal accept the primary applicant’s [sibling] has reported such matters to the police or any other authority.

7. Another significant indication that the applicants have nothing to fear from the NPA family or the NPA itself is the long delay in them seeking protection.  The primary applicant claims that the problems commenced in 1996 and she confirmed in her oral evidence to the Tribunal that she was concerned for her safety when she left the Philippines in 2006.  However, in the Tribunal’s view she has not offered a meaningful explanation as to why she did not seek protection until April 2014.  She stated that they could not afford a lawyer and that soon after arriving in Australia she fell pregnant but [lost the child] and then later gave birth to a [child] who is [disabled].  She claims that as a mother she focused all her attention on his condition but now regrets not applying for protection sooner.  The Tribunal pointed out that having a child would surely have elevated her need to obtain protection from the unsafe environment she claims she and her family would face in the Philippines. 

8. Further, pursuant to s.424AA of the Act, the Tribunal informed the primary applicant at hearing that it had information which, subject to her comments on, or response to, would be a reason or part of a reason for affirming the decision under review.  The Tribunal noted that in a compliance client interview with the Department [in] April 2014 she indicated when asked if there are any reasons why she cannot return to her home country that she cannot return because there are no jobs in the Philippines and they will not be able to survive and that her [child] is sick and needs specialist care.   The Tribunal explained to the applicant that this may be relevant because it contradicts her claims that she cannot return to the Philippines because she fears harm from the NPA.  The Tribunal explained that if it were to rely on the information it may find she has not been truthful about her claims and reject the claims she has made.  The Tribunal explained to the primary applicant that she could request additional time to comment on or respond to the information but she said she did not need more time and agreed to respond orally.  She said when she was interviewed by the compliance officer she was asked many questions which she no longer remembers.  She said that at that time she lacked information and knowledge about applying as a refugee based on her family’s previous situation.  The Tribunal stated it found it difficult to believe that she had never heard anything about the ability of persons to make refugee claims in Australia from within her own community or among the wider community given the high visibility of refugee issues in Australia.

9. For all these reasons the Tribunal has formed the view the applicant has not been entirely truthful in all her evidence.  The Tribunal accepts the NPA family who were permitted to live on their land later refused to leave and have assumed sole occupancy of their land since 2002.  However, the Tribunal does not accept the NPA family or the NPA itself threatened or are threatening to harm or kill any of the primary applicant’s family to either drive them from their property or to retain the seized property.  Nor does the Tribunal accept that they attempted to extort money from her mother or burn down their ancestral home or that they have or will search for members of the applicant’s family in other parts of the Philippines now that they have vacated their land.  Nor does the Tribunal accept that the NPA family or the NPA itself is motivated to harm the primary applicant or her family once she returns from Australia for any of the reasons claimed.  Therefore, the Tribunal finds that that there is no real chance that the applicants will be harmed, killed, threatened or otherwise seriously harmed by the NPA family or the NPA itself if they return to the Philippines.

10. In her written claims and her statements at the compliance client interview mentioned above, the primary applicant indicates that she and her family will suffer economic hardship on return to the Philippines as it will be difficult to get a job.  At the Tribunal hearing the applicant added that it will be difficult for her to get a job because she is now in her [age].  The Tribunal expressed surprise at this noting that she is well educated to tertiary level and has lengthy past experience working in a [workplace] in Manila.  The Tribunal suggested this ought to raise her chances of finding employment in the Philippines.  Further, the Tribunal indicated that she is still well within the working age bracket.

11. A 2015 US Department of State report[8]  states that the law prohibits discrimination with respect to employment or occupation regardless of sex but does not expressly prohibit employment discrimination with respect to age.  Both women and men are reportedly subject to age discrimination, most notably in hiring practices.  However, women continue to occupy positions at all levels of the workforce.

    [8] US State Department, Philippines 2015 Human Rights Report

12. More recent news reports[9] indicate that a new Anti-Age Discrimination Law (RA10911) has recently “lapsed into law” after the Senate adopted the House of Representative’s version of the bill on May 30 thus eliminating the need for a bicameral conference.  The new law will prohibit employers from imposing arbitrary age limitations.  The bill makes it unlawful for employers to publish, in any form of media including the internet, job wanted ads that would suggest a preference, limitation, specification, or discrimination based on age.  It also prohibits the requirement of a declaration of age or birth date in the application process and the rejection of an employment application due to an individual’s age.  It makes it unlawful to discriminate against an individual in terms of compensation or privileges of employment on account of age and to deny an employee’s promotion due to age.  Forcibly laying off a worker due to advanced age or imposing early retirement on the basis of age is also prohibited under the measure.  Violators face fines of P50,000 to P500,000 and imprisonment of three months to two years.

    [9] ‘Age to no longer be a factor in hiring under new law’, Philippine Daily Inquirer, 8 June 2016; ‘Age Discrimination in Employment Banned’, The Philippine Star, 2 August 2016

13. An internet search[10] reveals the Philippines unemployment rate stood at 6.1 per cent in April of 2016, down from 6.4 per cent a year earlier but up from 5.8 per cent reported in January 2016. The unemployment rate in the Philippines averaged 8.72 per cent from 1994 until 2016, reaching an all-time high of 13.90 per cent in the first quarter of 2000 and a record low of 5.70 per cent in the fourth quarter of 2015.

    [10] >

    In April, there were 2,594 thousand unemployed persons. Among the unemployed persons, 63.2 per cent were males. The age group 15 to 24 years comprised 50.1 per cent, while the age group 25 to 34 was at 28.3 per cent. By educational attainment, 23.1 per cent of the unemployed were college graduates, 13.1 per cent were college undergraduates, and 42.6 per cent were high school graduates.

14. While the Tribunal accepts unemployment is reported in the Philippines and that formerly there was no official protection from age discrimination, given the above country information together with the primary applicant’s education and former work experience, the Tribunal is not persuaded she will be unable to find any employment on return to the Philippines such that her ability to subsist will be threatened.  The Tribunal finds the applicant is not at risk of serious or significant harm for this reason. 

15. The primary applicant’s written claims also appear to give rise to a claim that she fears returning to the Philippines for reason of her [child] having a [disability] and this was discussed with her at hearing.  Whereas some documentation before the Tribunal indicates her [child] is seeing a [specialist] at hearing she indicated her [child] is [disabled] and the Tribunal has no reason to disbelieve this.   

16. The Tribunal put it to the applicant that there is no information before it to suggest that her [child] will not be able to access medical care or treatment in the Philippines and that it therefore does not appear [child] will suffer any serious or significant harm for that reason.  She then claimed that children with [disabilities] are not accepted in the Philippines. 

17. The US State Department report on human rights practices in the Philippines 2015 states that the constitution prohibits discrimination against persons with physical, sensory, intellectual and mental disabilities in employment, education, air travel and other transportation, access to health care, and other social services. The National Council for Disability Affairs formulated policies and coordinated the activities of all government agencies for the rehabilitation, self-development and self-reliance of persons with disabilities and their integration into the mainstream of society.  Despite such measures it is reported that challenges and barriers remain.[11] 

    [11] US State Department, Philippines 2015 Human Rights Report.

18. The report continues that some children with disabilities attended schools in mainstream or inclusive education settings.  Children with disability living in poverty or rural areas, however, were unlikely to have access to education.  The Philippine Coalition on the UN Convention of the Rights of Persons with Disabilities reported that the Department of Education’s 448 special education centres were inaccessible or too expensive for the average family and a majority of these special education programs and schools were located in urban areas. 

19. The [disability] Society Philippines website indicates that national and local governments have made significant strides in adhering to stipulations of the United Nations Convention on the Rights of Persons with Disabilities and that more work continues towards improving assistance given to vulnerable persons with disabilities, including financial assistance to qualified families for education and health support.  The website lists laws and implementing guidelines in effect in the Philippines, which assist the cause of persons with autism, and other disabilities.  These include,  the  Anti-Bullying Act Republic Act Number 10627, dated 05 June 2013;  the Equal Opportunity Employment Republic Act Number 10524, dated 23 July 2012; the Implementation of Programs and Services for Persons with Disabilities in every province, city and municipality Republic Act Number 10070, dated 27 July 2009; the  Magna Carta for Persons with Disabilities Republic Act Number 7277, dated 24 March 1992 which provides for the rehabilitation, self-development and self-reliance of disabled persons and their integration into the mainstream of society and for other purposes.[12]

    [12] [Information deleted]

20. Based on this information, the Tribunal is satisfied the applicants’ [child] will be afforded access to health care and education and in the event [child] encounters stigma or discrimination [child] could seek redress as evidenced by the legislative protections in place in the Philippines for people with disabilities.  The Tribunal is not persuaded there is a real chance or risk the applicants’ [child] will suffer serious or significant harm on return to the Philippines because [ the child] has [this disability]. 

21. When asked if there is any other reason she cannot return to the Philippines the primary applicant indicated her husband has a [medical] condition.  Again, the Tribunal has found no information to support, that appropriate medical care is not available in the Philippines.

22. The Tribunal has considered the applicant’s claims individually and cumulatively but based on the evidence before it, the Tribunal finds that there is not a real chance the applicants will suffer serious harm if they return to the Philippines now or in the reasonably foreseeable future.  Accordingly, the applicants do not have a well-founded fear of persecution in the Philippines.

23. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act.    For the same reasons already articulated, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to the Philippines there is a real risk they will be significantly harmed for the reasons claimed or any other reason.

24. 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

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

    Tania Flood
    Member