1508203 (Refugee)

[2017] AATA 1501

1508203 (Refugee) [2017] AATA 1501 (21 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508203

COUNTRY OF REFERENCE:                  Philippines

MEMBER:Sophia Panagiotidis

DATE:21 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 21 August 2017 at 4:53pm

CATCHWORDS
Refugee – Protection visa – Philippines - Social group - Single mother – Children out of wedlock - Risk of violence – Unemployment - Target of Islamic extremists – Exceptional and compassionate circumstances – Referral to Minister

LEGISLATION
Migration Act 1958

, ss. 5(1), 36(2)(a), (aa), (b), or (c), 65, 91R(1), 91R(1)(b), 91R(2), 345, 351, 417, 499, 501J

Migration Regulations 1994

, Schedule 2

CASES
SZTKV v MIBP [2014] FCCA 2827

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants, who claim to be citizens of The Philippines, applied for the visas [in] January 2014 and the delegate refused to grant the visas [in] May 2015.

   Claims

3. The applicants’ claims are as follows:

   ·She fears she will suffer persecution in the form of “living on the streets”, “people looking down on her” for being a single mother and pregnant.

   ·She believes the ‘religious extremists’ will harm her and her children if she went back to The Philippines.

   ·She claims that being a single mother and pregnant is ‘looked down upon by religious extremists.

   ·The religious extremists will cause her and her children harm.

   The hearing

4. The applicants appeared before the Tribunal on 21 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant's partner, [name]. In relation to the claims made by both applicants the Tribunal has relied mainly on the evidence by the primary review applicant[1] as the second named applicant is [age].

   [1] The Tribunal will refer to the primary review applicant as the applicant.

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

6. The Tribunal first spoke to [name], the applicant’s partner. He told the Tribunal that he applied onshore for a [permanent] visa but this was refused in 2013. He said they met at work as they were both working for the same employer. He does [occupation]. He told the Tribunal he is divorced and has a young child from his previous marriage and he pays child support for [child]. He is financially supporting his partner, their [number] children who were born in Australia and his partner’s [Applicant 2] (the second named applicant). He and the applicant have [number] children, [children] who were born on [dates]. He is currently earning $[amount] per annum and he and his family live in rental accommodation. He said he is in no financial position to sponsor the applicant after she returns to The Philippines and would find it extremely difficult to financially support her if she had to leave Australia. He has been advised that the time it would take for him to make another application for a [permanent] visa offshore is currently between 18 to 23 months and the fees are over $7,000 not including medical checks, police clearances, translation of documents and legal fees. He is in no position to support the applicant and the children if she were to return to The Philippines and to afford these costs. He would also be very worried about his partner living by herself and her [Applicant 2], or with their children as they would be vulnerable. They are not yet married as her divorce has not been finalised from her estranged husband. They plan to get married as soon as her divorce has been finalised. He said they love each other and they work as a team. He is in no position to accompany the applicants if they were forced to return to The Philippines.

7. The Tribunal next spoke to the applicant who said she was previously married in The Philippines for six years. She was a student at the time she met her first husband and they had [number] children, however one of her children died because of [medical condition]. She and her first husband divorced in 2009 because he treated her badly. She had converted to Islam to obtain the divorce because it is almost impossible to get a divorce if you are Catholic. She obtained the divorce and renounced Islam after this had been finalised. She said she met her second partner in The Philippines in 2010. He was an Australian and he sponsored her to come to Australia. She arrived at the end of 2012 and they were married in 2013 but they separated in the same year and he withdrew his sponsorship.

8. The applicant told the Tribunal that she met her current partner in 2013 and they commenced a relationship. They have been together for four years. She confirmed that all of her family live in The Philippines and she has no family in Australia. She said if she returns to The Philippines she will be homeless and her [Applicant] 2] (the second named applicant) will be devastated. Her [Applicant 2] was [age] when [Applicant 2] came to Australia and is now [age] and has made friends and is settled here. Her [Applicant 2] and [Applicant 2’s] father have no communication which was [Applicant 2’s] father’s choice. Her [Applicant 2] has never returned to The Philippines since coming to Australia in 2010 and is afraid to return.

9. The applicant said her family in The Philippines are living in Mindanao and are very poor. Her parents were born there and while her father is not religious her mother and her family are Christians.

10. The applicant said that around 2010 or 2011 she was on a bus and was on her way to see her ex-husband about their divorce and she witnessed a bombing. This was in Iligan City. People died in this incident and she witnessed this. The bombing was carried out by the Moro Islamic Liberation Front (MILF). In The Philippines such things happen and there are kidnappings for ransom or which just randomly happen. She said her [sibling]’s child; a [gender] was nearly kidnapped in 2008 but escaped. She understands this was done by people who traffic in children and look for young [children] who are around 14 or 15 years of age. She believes her [Applicant 2] is at risk of such a kidnapping and as a single mother she and her [Applicant 2] would be targeted. These kidnappers target people like her and her [Applicant 2] and sell them as slaves or rape or kill them.

11. The applicant was asked whether she could relocate or live elsewhere in The Philippines. She said there is no safe place in The Philippines for a single mother and her [Applicant 2] as they will be targeted. She will have no support and no-one to protect her. As she has married to an Australian man and has had children with him, they are at additional risk because foreigners are targeted for money.

12. The applicant was asked about the composition of her family. She said all her family are in Mindanao, [one sibling] is [age] and the [another sibling] is [age] and still at school. All her siblings apart from [one sibling] are married and working. The applicant said she did not finish her tertiary education and has no trade. She was working and studying when she met her first husband but had to stop because she became pregnant.

    Submissions

13. The Tribunal has considered a submission by the applicant’s representative (in summary):

    ·In The Philippines, to be divorced or to have children out of wedlock is culturally a great shame to the extent that the applicant will be persecuted by the community at large if she were to return.

    ·The applicant’s first husband has tarnished her reputation because she has remarried and now has a new partner and children from her present relationship, an Australian citizen.

    ·She fears for her safety and that of her [Applicant 2] if she were to return to her hometown.

    ·The applicant also fears the Moro Islamic Liberation Front (MILF) and the Moro National Liberation Front (MNLF) as both are connected and have been labelled as terrorists by the Philippine government. Although a peace agreement was signed in January 2014, dissatisfied members of both groups created the Maute Group, a radical Islamist group who are linked with Abu Sayyaf, another radical Islamist Group who have carried out bombings, kidnappings and assassinations on civilians and politicians, military and police. Tensions with the government have flared with the current president declaring there is a “raging war now in Lanao”.

    ·As an unmarried mother, the applicant risks being targeted by these groups. She would also be unable to work due to the public shaming campaign by her former husband as well as her status as a divorced single mother. These issues would prevent her from finding gainful employment and therefore she would be unable to provide for her children and herself.

    ·Violence against women in The Philippines has steadily increased. The Philippine Commission on Women (PCW) report Violence Against Women[2] and alarmingly the statistics show an upward trend. The PCW also report that gender based violence is closely connected with the problem of violence against women in The Philippines due to societal and cultural and laws, ie that men are leaders, pursuers, providers and take on dominant roles in society while women are nurturers, men’s companions and supporters and take on subordinate roles in society. This perception leads to men gaining more power over women.

    ·Given the applicant’s low economic status, combined with her tarnished reputation, she has grave concerns not only of being persecuted but of being physically attacked and persecuted by the community at large due to the vitriol that the community would have for her and because she would not be able to protect herself.

    ·The delegate has stated that the applicant could seek and rely on assistance from the father of her [children] (her current partner) as he continues to assist her regularly. Her partner does not earn a particularly high wage and it is submitted he would not be able to support both his family in Australia and his family overseas. The applicant’s family in The Philippines would also be unable to provide for her due to their own poor financial position.

    ·The applicant is the primary care giver for her [number] children, [number] of whom were born in Australia. The applicant and her partner live together with their children in a mutually exclusive de-fact relationship. Her partner is the sole provider for the family.

    ·If the applicant were to be removed from Australia, her partner would not be able to provide for his family or arrange for suitable care for his children as [number] of the children in particular are very young and totally dependent on their mother. Her partner would not be able to work full time to care for his children without the applicant, nor would he have the financial means to place the children in day care. Not having their mother to care and nurture them would greatly impact upon the children’s development and growth.

    ·It is submitted that the applicant and her [Applicant 2] have a well-founded fear of being harmed and persecuted if they were to return to The Philippines based on being an unmarried mother, and as someone who has had further children out of wedlock with an Australian man.

    ·The applicant’s de-facto partner and children are Australian citizens and separating this family unit would create lasting issues for him and the children.

    [2] Philippine commission on Women, Violence Against Women (VAW) 2009

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

15. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

17. 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’).

18. 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.

19. The issue in this case is whether Australia has protection obligations in respect of the applicants. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Assessment of the evidence and findings

    Fear of harm as a single mother

20. The Tribunal is satisfied that the applicant is in a genuine de facto relationship with an Australian citizen and there are [number] children born in Australia from that relationship. The Tribunal is also satisfied that the applicant has been married twice before, once in The Philippines and once in Australia and she is yet to finalise the divorce from her second husband. The Tribunal is satisfied that the applicant and her de facto partner intend to  marry once her divorce from her second husband has been finalised.

21. In relation to the applicant's claim to fear harm, discrimination and shame as a single mother in The Philippines and because of her status as a divorced woman, a woman who has been married to an Australian man and a woman who has had [number] children out of wedlock, the Tribunal has considered a 2009 research paper published by Princeton University The Separation of Marriage and Childbearing in The Philippines which found that there is a growing tolerance for non-marital childbearing, and that although a woman rearing a child born out of wedlock may be stigmatised, there are indications that Philippine society is becoming more tolerant and accepting.[3] Another study found that non-marital births had progressively increased over several decades, and as there is no possibility of divorce in The Philippines, there appears to be a growing tolerance of children born out of wedlock. [4]

    [3] Kabalaman, M The Separation of Marriage and Childbearing in the Philippines, University of the Philippines Population Institute, 2009,

    [4] See Kabalaman, M; Williams, L Correlates of non-marital births in the Philippines, University of the Philippines Population Institute, 2010,

22. In an advice from the Department of Foreign Affairs and Trade (DFAT), dated 20 November 2002, the issue regarding the ‘influence of Conservative Catholicism in The Philippines’ and its relationship to the social stigma against single parents was discussed.[5] However, according to local media, more than 37 percent of the 1.78 million babies born in The Philippines in 2008 had been to unmarried mothers. According to a census office, this was 12.5 percent higher than the previous year and compared with a two percent increase for all births.[6] The Tribunal has not seen more recent evidence that indicated this trend had reversed.

    [5] Filipino single mother, DFAT, 20 November 2002, CX70129

    [6] Marriage going out of fashion in the Philippines, The Straits Times, 15 July 2011, CX273414; and Out of wedlock births hit record high, Remate, 21 July 2011, CIS21575

23. The Tribunal has also considered country information regarding the implementation of the benefits provided under the Solo Parents Act in The Philippines. A GMA News TV article, dated 21 January 2009 reported that:

    Manila City Hall has started its welfare program for single parents – unmarried, widowed, or abandoned breadwinners, with the Mayor Alfredo Lim handing out identification cards for the first batch of beneficiaries on Tuesday afternoon.

    Among the benefits single parents can get are capital assistance, educational assistance for their children, free vocational training and additional 7 days parental leave credits for those who are working.

    They can also get immediate assistance at the city’s district satellite offices and be able to use the courtesy lane to the [sic] Philippine capital’s four district hospitals.

    This program is in line with the Solo Parent Welfare Act of 2002 (Republic Act 8972), which provides for such benefits.[7]

    [7] Manila starts implementing aid program for single parents, GMA News TV, 21 January 2009, CX272446

24. The Tribunal has also considered the country information referred to in the applicant’s written submission, namely the Philippine Commission on Women (PCW) report Violence Against Women[8] regarding violence against women. The Tribunal has also considered other sources of country information such as the US Department of State’s 2016 country information. This reports that:

    There continued to be reports of rape and sexual abuse of women in police or protective custody. Women from marginalized groups, such as suspected prostitutes, drug users, and indigent individuals arrested for minor crimes, were more likely to be raped…Domestic violence against women remained a serious and widespread problem. The law criminalizes physical, sexual and psychological harm or abuse to women and children committed by their spouses, partners or parents…Statistics are unavailable on prosecutions convictions and punishments filed by the PNP (Philippine National Police) during the year…

    The PNP and DSWD (Department of Social Welfare and Development) both maintained help desks to assist victims of violence against women and encourage reporting. With the assistance of NGOs, the CHR, and the Philippine Commission on Women, law enforcement officers continued to receive gender-sensitivity training to deal with victims of sexual crimes and domestic violence. The PNP maintained a central women and children’s unit with 1,833 desks throughout the country to deal with abuse cases…

    In law, but not always in practice, women have most of the rights and protections accorded to men. The law accords women the same property rights as men…

    No law mandates non-discrimination based on gender in hiring, although the law does prohibit discrimination in employment on the basis of sex. Nonetheless, women continued to face such discrimination on the job as well as in hiring…[9]

    [8] Philippine commission on Women, Violence Against Women (VAW) 2009

    [9] US Department of State, Philippines – country Report on Human Rights Practices, 2015, 13 April, 2016, OGD95BE926302

1. The Tribunal has also considered DFAT’s Country Information Report on The Philippines, which was not available at the time of the hearing but notes that the information is consistent with other country information considered. In relation to women, DFAT reports that:

   3.21The Philippines is ranked seventh on the Global Gender Gap Index. However, other indicators provide a more mixed picture of the difficulties faced by women across The Philippines. Female labour force participation is one of the lowest in South East Asia, at 49.8 percent in 2013.

   3.22The Philippines has a strong legal framework for the protection of women’s rights, including the Magna Carta of Women, the Anti-Violence Against Women and their Children Law, the Anti-Sexual Harassment Act, the Anti Rape Law, the Responsible Parenthood and Reproductive Health Law, and the Rooming-in and Breastfeeding Act. However, implementation of this legislation is inconsistent.

   3.23Violence against women is widespread in The Philippines, Rape, including spousal rape, is illegal, with penalties ranging from 12 to 40 years’ imprisonment. According to the US Department of state, between January and July 2016, 5,973 cases of rape were reported to the Philippine National Police (PNP), significantly more than the same period in the previous year. But many cases still go unreported. There are no data on prosecutions, convictions, and punishments of rape offenders. Incidences of domestic violence are high. The PNP has dedicated women officers to deal with cases of domestic violence; between January and July 2016, the PNP received 16,007 cases of domestic violence. The Department of Social Welfare and Development and other local NGOs provide shelter and counselling services, which are more readily accessible in large cities…

   2.35Overall, DFAT assesses that although legal frameworks are in place to protect women, societal discrimination continues to be significant. Women in The Philippines face a high risk of violence, particularly domestic or intimate partner violence…[10]

   [10] Department of Foreign Affairs and Trade, DFAT Country Information Report – the Philippines, 9 August 2017

2. The Tribunal accepts that country information indicates that some women may suffer serious or significant harm in The Philippines. The Tribunal has noted that the applicants have family in The Philippines and while they are not financially well to do the Tribunal considers and is satisfied that the applicants would be provided support and protection by their immediate and extended family. The applicant has not claimed that they would be turned away but has essentially claimed that it would place them in difficulties to be expected to support them as they have limited financial means. The Tribunal has considered the country information and referred to this during the hearing and accepts that the applicant may face discrimination and hardship as a single mother if she were to return to The Philippines and accepts there is a disproportionate risk of harm to women and children generally in that country.

3. However, the Tribunal must consider whether the applicant will suffer persecution for these reasons if she were to return to The Philippines. Section 91R(1) of the Act indicates that persecution within the meaning of the Convention must involve ‘serious harm’ to the applicant (s.91R(1)(b)). The expression ‘serious harm’ includes, for example, a threat to life and liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act.

4. The applicant arrived in Australia in 2013 and has been absent from The Philippines for around four years. The Tribunal accepts that she was married when she was quite young and still a student and suffered a loss with the death of one of her children, the breakdown of her relationship with her first husband and faced limited prospects in relation to working with a young child at that time. The Tribunal also accepts she briefly converted to Islam in order to be able to obtain a divorce from her first husband and that she reverted back to Christianity once this was finalised. The Tribunal accepts that the reason for her conversion was that divorce in an overwhelmingly Catholic country is almost impossible to obtain. The Tribunal also accepts she met and subsequently married an Australian man who put in an application for a visa to enable her to come to Australia but that relationship broke down soon after her arrival and her husband withdrew his sponsorship. The Tribunal accepts the applicant then met and began a relationship with her current partner and there are [number] Australian born children of that relationship. The Tribunal accepts that the applicant fears leaving those children in Australia to travel back to The Philippines to await the opportunity for her current partner, who has limited means to apply for a visa for her to return to Australia. The Tribunal also accepts that such an application is likely to take some years.

5. The Tribunal accepts that she fears leaving [number] young children in Australia and fears taking them with her to The Philippines along with her [Applicant 2] (the second-named applicant) because of an uncertain future and lengthy delays in applying for and obtaining a [permanent] visa to return to Australia. The Tribunal also accepts that the applicant does not wish to leave her partner and that they plan to marry as soon as they are legally able. The Tribunal accepts that the uncertainty and fear held by the applicant is due to any separation from her partner, potentially being separated from her [children] or if they travel with her, that she will be reliant on family members, who, if they accept her, have limited means to support her and her [children] and the likelihood is that they will be living in relative poverty. The applicant’s evidence is that her family are poor and have barely enough resources to help themselves, but she has not claimed that they will not support her or that they would abandon her if she were to return to The Philippines.

6. The Tribunal also accepts that the applicant will likely be looked down and feel shamed because of her status as a twice divorced woman and because of her current relationship which has yet to be solemnised by marriage. She will also be looked down on by her community because of having [number] young children out of wedlock in her current relationship. The Tribunal has also considered her submission that the applicant’s first husband has tarnished her reputation because she has remarried and now has a new partner and children from her present relationship, an Australian citizen.

7. The Tribunal notes that according to country information the issue of children having been born out of wedlock is not as serious as it used to be and that societal attitudes are changing, however the Tribunal accepts that she may still experience this because of the conservative nature of Philippine society. The Tribunal does not accept that the applicant will be targeted as a single mother and her [Applicant 2] will not be targeted as they have family who may not have extensive resources but who would provide them with some level of support. The Tribunal is not satisfied that there is a real chance of suffering harm for the reason of their gender in The Philippines. The Tribunal is not satisfied there is a real chance the applicants would suffer serious harm, for any reason discussed above.

   Employment prospects and the ability to survive financially

8. The applicant fears that she will not be able to survive financially in The Philippines. The evidence before the Tribunal indicates that her partner earns a modest income and the level of his financial commitments to his children, [number] from his previous marriage and [number] with the applicant as well as her [Applicant 2] would make it extremely difficult for him to provide for the applicant if she were to return to The Philippines. The applicant indicated that her family is poor, and although a number of her immediate family are working they would be unable to financially support her and she would find it difficult to survive financially. She also indicated that finding work is difficult especially as she would be regarded as a single mother with no husband to support and protect her. They would therefore be at risk of harm and mistreatment.

9. In considering the economy of The Philippines, the Tribunal has considered DFAT country information which advises that the World Bank classifies The Philippines as a lower middle-income country and its economy grew by 6.8 percent in 2016 making it one of the fastest growing emerging Asian economies. DFAT also reports that according to the Asian Development Bank, 25.2 percent of the population lives below the national poverty line, and the incidence of poverty differs between regions with the Autonomous Region of Muslim Mindanao facing the highest levels at 48.2 percent. The overall poverty incidence rate in Mindanao is 30.4 percent.[11]

   [11] Department of Foreign Affairs and Trade, DFAT Country Information Report – the Philippines, 9 August 2017

10. DFAT advise that in January 2017 the Philippine Statistics Authority reported an overall unemployment rate of 6.6 percent with the official employment rate at 93.4 percent with labour force participation rate at 60.7 percent for those 15 years of age and over. DFAT report that the difference in these two figures represents approximately 32 percent of the population that are engaged in the informal sector where they are not covered by labour laws or standards. The relatively low unemployment rate and high demand for overseas Filipino Workers, according to DFAT, means that people have viable employment options in The Philippines. DFAT assesses that economic reasons can act as a push factor for external migration but are generally not the only reasons.

11. In considering access to education in The Philippines, DFAT reports that the Philippine Constitution grants the right to education including free public education at elementary and high school level. There are also many state funded universities.[12]

    [12] Department of Foreign Affairs and Trade, DFAT Country Information Report – the Philippines, 9 August 2017

12. In relation to the second named applicant, the Tribunal is satisfied that [Applicant 2] will have ongoing access to education and [Applicant 2] would be able to complete [the] secondary education in The Philippines and would, subject to satisfactory achievement be able to access tertiary education.

13. The Tribunal notes that prior to leaving The Philippines, the applicant had begun her tertiary education, which she had to abandon on her first marriage and pregnancy. The Tribunal also notes she had previously worked in a supermarket from around 2009 to 2012. The Tribunal notes that the applicant has a reasonable level of education, she has worked consistently both in The Philippines and Australia and there is no reason why she would not be able to find employment either in her home area or another area in The Philippines.

14. Overall the Tribunal does not accept that the treatment claimed by the applicant, namely being looked down on and viewed unfavourably by those in the applicant’s community for reasons of being a divorced woman, a single mother, having children out of wedlock, financial difficulty and difficulty finding work, has the requisite level of seriousness as to amount to serious harm. It is not of the same character and degree of seriousness as the matters outlined in s.91R(2). The Tribunal does not accept that the applicant will be denied access to basic services in The Philippines to the extent that she would be denied the capacity to earn a livelihood or denied the capacity to exist. The Tribunal also does not accept that the second named applicant will be denied access to education if [Applicant 2] were to return to The Philippines. The Tribunal therefore concludes that the harm feared by the applicant is not persecution within the meaning of the Convention and finds that this type of treatment does not amount to significant harm within the meaning of s.36(2A) or s.5 of the Act.

    Fear from Muslim extremists

15. The applicant has claimed that she fears religious extremists will harm her and her children if she returned to The Philippines. The Tribunal notes that the delegate had some concerns about this claim as the applicant was unable to initially identify the group of religious extremists she feared apart from being able to give the acronym MILF. She later identified this group as the “Moral International Liberation Front”. The delegate noted that the Moro Islamic Liberation Front, the correct acronym for MILF was the largest rebel group in The Philippines with political affiliations and that the Philippine government and this group had signed a landmark comprehensive peace treaty providing a roadmap for peace and that:

    …A power sharing arrangement in a new self-governed region, Bansamoro, will replace and add territory to the current Autonomous Region in Muslim Mindanao (ARMM) by 2016. It is hoped that the treaty will end more than 40 years of conflict between separatist Moros, and indigenous Muslim groups and the government in the southern Philippines…[13]

    [13] Freedom in the World – Philippines Report 2015,  NG5AiE6BC173

16. The delegate found that the applicant’s claim relating to her fear of religious extremists to be unsatisfactory as she was unable to correctly name the group or give details or expand on her claimed fear. The delegate found that the applicant was not implicated in activities which may make her a person of interest to such religious extremists and was not involved in activities which would make her a person at risk of being harmed by these groups.

17. The Tribunal notes the information submitted by the applicant’s representative in relation to the MILF and the peace agreement with the Philippine’s government that although a peace agreement was signed in January 2014, dissatisfied members of both groups created the Maute Group, a radical Islamist group who are linked with Abu Sayyaf, another radical Islamist Group who have carried out bombings, kidnappings and assassinations on civilians and politicians, military and police. It was also submitted that tensions with the government have flared with the current president declaring there is a “raging war now in Lanao”.

18. The Tribunal noted the most recent advice from DFAT that:

    2.26Based on global trends, terrorism is a growing concern in The Philippines. Domestic terrorist has existed for many years, related to the insurgencies described below, but recently some Islamist groups in Lanao Del Sur province in Mindanao have pledged allegiance to ISIS. On 23 May 2017, President Duterte declared martial law, applicable to the whole of Mindanao for 60 days, as a result of the attack by pro-ISIS militants on Marawi City (the capital of Lanao Del Sur). The declaration was supported by both chambers of The Philippines Congress and was signed into law on 30 May 2017. On 22 July, the Congress extended marital law until the end of 2017. The attack by several ISIS affiliated groups, was led by the Maute Group and Abu Sayyaf Group (ASG), commanded by Isnilon Hapilon. According to The Philippines military, Ansar Al-Khilafah were also involved in the attack. At the time of writing, the battle for Marawi City is still ongoing, around 500,000 people had been displaced an at least 500 people had been killed.

    2.27Several low intensity internal conflicts are ongoing, mostly concentrated in Mindanao in the Southern Philippines, especially in central and western Mindanao, including the Zamboanga Peninsula and Sulu Archipelago. The key threats by the groups involved in the various conflicts are terrorist attacks, kidnapping for ransom, violent crime and violent clashes between the armed groups or with the Armed Forces of The Philippines.[14]

    [14] Department of Foreign Affairs and Trade, DFAT Country Information Report – the Philippines, 9 August 2017

19. The Tribunal accepts that the situation in Mindanao is dangerous and that a state of emergency has been declared by the Philippine government until the end of 2017. The applicant did not indicate that her family had been affected by this during the hearing but notes that the state of emergency was declared after the hearing. There has been no information submitted by the applicant or her representative if there has been any impact on the applicant’s family as a result of the state of emergency.

20. Based on the country information, the Tribunal finds that the chance the applicants would be caught up in the violence in various areas of Mindanao and seriously harmed is remote and any such harm would not be inflicted for any Convention reason. In addition, the country information indicates that The Philippines government has a heavy military presence in the area and areas of Mindanao identified as most problematic are under martial law. The Tribunal finds that there is no real chance that the applicants would be seriously harmed by Islamic extremists or that the applicants’ fear of harm by these extremists is not well-founded and is not Convention related. Equally, the Tribunal finds that there is no real risk that the applicants would be harmed in this way and further risk of this type of harm is one faced by the population of The Philippines generally and not the applicants personally and therefore is not regarded as a real risk for the purposes of paragraphs s.36(2)(aa). For the same reasons the Tribunal is satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to The Philippines there is a real risk that that the applicants will suffer significant harm for the purposes of s.36(2)(aa).

    Fear of being returned to The Philippines without the applicant’s [number] children

21. The applicant has expressed fear having to return to The Philippines without her [number] Australian born children and this will cause her emotional and psychological distress or harm. The Tribunal accepts that that if the applicant were to return without her [number] children this will result in serious psychological harm. However the Tribunal is not satisfied that she would be forced to be separated from her [number] children and even if this was the case, it would not be for reason of any Convention ground. It would be as a consequence of the applicant not having a right to remain in Australia. This would not be Convention related persecution.

22. The Tribunal has considered whether the harm the applicant would experience as a consequence of any separation from her [number] children would meet the complementary protection provisions. Under Australian law, cruel or inhuman treatment or punishment must intentionally be inflicted and degrading treatment or punishment must be intended to cause extreme humiliation.[15] In SZTKV v MIBP[16] the court held that the proposition that intention is made out if there is an intentional act that exposes a person to the risk of serious harm is incorrect. ‘Intention’ in relation to a particular act or state of affairs requires advertence to the act of state of affairs and the desire to commit the act or bring about the state of affairs. In the applicant’s case it is the consequence of not having a right to remain in Australia that would lead to any separation (and resulting harm) and not an intention to cause significant harm to the applicant, so it would not amount to significant harm.

    Summary of findings

    [15] See SZSPE v MIBP [2013] FCCA 1989 20 November 2013

    [16] [2014] FCCA 2827

23. In summary, the Tribunal finds that the primary review applicant does not have a well-founded fear of persecution for the reasons of being a single mother, having children out of wedlock, being at risk of violence, at risk of not being able to find employment in order to support herself and her daughter, being a target of Islamic extremists or that the second named applicant will be unable to complete [Applicant 2’s] education. The Tribunal finds that the applicants are not refugees within the meaning of the Convention.

1. The Tribunal is also satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to The Philippines that the applicants will suffer significant harm.

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

3. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reasons discussed earlier, the Tribunal is not satisfied that the applicants are persons 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) of the Act 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 applicants does not satisfy the criterion in s.36(2).

   Referral to the Minister

5. During the hearing, the Tribunal discussed with the primary review applicant and her representative referral of this matter to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister discretion to substitute a decision of the Tribunal for another decision that is more favourable to the applicants if the Minister considers it is in the public interests to do so.

6. In the Tribunal’s view this matter raises some unique and exceptional circumstances and there are strong compassionate circumstances such as failure to recognise them would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen, (in this case this includes the applicant’s Australian partner and their [number] Australian born [children]) should the applicants leave the country. The primary review applicant and her partner who have been in a relationship for four years have [number] young Australian born children aged [ages] and they have been in their mother’s care since their birth. Her partner, who is an Australian citizen has [number] child, a [child] [age], from his first marriage for whom he pays child support. He has also been financially supporting the applicant, their [number] children, and the second named applicant since around November 2013. He has also made himself responsible for the financial support of the second named applicant who is not paid child support by [the] father in The Philippines and who has never taken responsible for [Applicant 2] financially. The applicant’s partner has modest means and would find it very difficult to cope with having [number] [children] in his care on a full time basis while having to work full time and meet his financial obligations. In these circumstances he would also find it extremely difficult to support the applicants in The Philippines and be able to afford to make a new visa application for them. Taking the [number] [other] children to The Philippines will also raise issues of hardship for the father, including emotional and psychological, and he would effectively be separated from the majority of his immediate family, potentially for an extended period.

7. This case may also bring Australia’s obligations as a party to the Convention on the Rights of the Child into consideration. There may also be issues relating to Australia’s obligations under the International Covenant on civil and Political Rights into consideration, such as issues of family unity which can be balanced against other rights and interests including the integrity of Australia’s migration program.

8. The Tribunal has considered the applicant’s case and the Ministerial Guidelines to the discretionary power set out in PAM3 “Minister’s guidelines on ministerial powers (s.345, s.351, s.417 and s.501J) and will refer the matter to the Department.

   Decision

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

   Sophia Panagiotidis
   Member