1508615 (Refugee)

[2017] AATA 2945

1508615 (Refugee) [2017] AATA 2945 (15 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508615

COUNTRY OF REFERENCE:                  Philippines

MEMBER:Saxon Rice

DATE:15 November 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 15 November 2017 at 12:33pm

CATCHWORDS
Refugee – Protection visa – Philippines – Social group – Women and single mother – Victim of physical and emotional violence – Family member of a divorcee

LEGISLATION
Migration Act 1958, ss 36, 48A, 65,424AA, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZGIZ v MIAC [2013] FCAFC71
SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants, who claim to be citizens of Philippines, arrived in Australia on [temporary] visas as dependents to their then husband and father’s visa [in] September 2006.

3. The applicants made an application to the Department of Immigration for a Protection visa (the first application) [in] March 2010. In that application, the first named [applicant] made claims for protection and the second named applicant [and] third named [applicant] were dependents on their mother’s application and did not make their own claims for protection.

4. The delegate of the Department refused to grant the visas [in] June 2010. The Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 22 October 2010. [In] December 2010, a Ministerial Intervention request was initiated with outcome “not considered” [in] February 2014.

5. Following the decision in SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235 (see below), the applicants made a second application for a Protection visa [in] March 2014. In that application, [Applicant 2] and [Applicant 3] made claims for protection of their own and the delegate refused to grant all the applicants’ visas [in] June 2015. This is an application for review of decisions 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).

6. The applicants appeared before the Tribunal on 4 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. 

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

   RELEVANT LAW

8. In relation to the application for protection made by [Applicant 1], section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the Complementary Protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a Protection visa on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion.

9. As indicated above, the applicants have previously been refused a Protection visa in Australia. However, the visa application under review is a valid application because [Applicant 1] is considered ‘SZGIZ-affected’ as she has not left Australia since the final determination of her previous Protection visa application which preceded the Complementary Protection provisions. As [Applicant 1] has previously had her claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether she satisfies the requirements of s.36(2)(aa), (b) and (c).

10. The Complementary Protection provisions in s.36(2)(aa) essentially require that the applicants are non-citizens in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that they will suffer ‘significant harm’. Significant harm is defined in s.36(2A) of the Act to include that the non-citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non-citizen will be subjected to cruel or inhuman treatment or punishment; or the non-citizen will be subjected to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.

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

12. In relation to the applications for protection made by [Applicant 2] and [Applicant 3], 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.

13. 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).

14. 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.

15. 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’ as outlined above).

16. 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.

    CLAIMS AND EVIDENCE

    Background

17. [Applicant 1] married her husband [in] 1995 and they lived together in [Manila] prior to travelling to Australia in 2006 with their [daughters]. [Applicant 1’s] sisters are married and live in [Manila] and her brother lives in [another country]. [Applicant 1’s] daughter remained in [Manila] with [Applicant 1’s] parents due to her developmental delay. In 2009 the family briefly returned to the Philippines for a holiday.

18. [Applicant 1] graduated in [year] with a [degree from a University] and she worked as an [occupation] until 1995. [Applicant 1] separated from her husband in 2008 and her husband returned to the Philippines in October 2009. [Applicant 1] has worked in Australia to support herself and her daughters and she was granted a divorce in Australia from her husband in July 2011.

19. [Applicant 2] began her schooling in [Manila] prior to her arrival in Australia and after her arrival, she continued her schooling in Australia. She has also worked as [an occupation] and began [an] apprenticeship. [Applicant 3] began her schooling in Australia.

    First protection visa application

20. As set out in the delegate’s decision records dated [in] June 2015 which the applicants provided to the Tribunal, in her original application lodged [in] March 2010 which included [Applicant 2] and [Applicant 3] as dependents not making their own claims, [Applicant 1] claimed that she feared returning to the Philippines due to the verbal, physical and psychological abuse from her now divorced husband. [Applicant 1] claimed that she was unable to seek protection against the claimed acts of verbal, physical and psychological abuse committed by her then estranged husband against her and their children. [Applicant 1] claimed that her estranged husband has the influence to hire a killer friend [to] harm her due to his influence, money and involvement with a gang.

    Refugee Review Tribunal (RRT) Decision

21. The Tribunal was satisfied that the applicants had been subject to physical and emotional violence for the duration of the marriage. The Tribunal accepted that the applicants do fear harm from [Applicant 1’s] husband on return to the Philippines and that there exists a real chance he may attempt to harm the applicants. The Tribunal was not satisfied [Applicant 1’s] husband would seek to harm the applicants by way of hiring a killer and noted that the contract killer [feared] by the applicant was convicted for murder and sentenced to [imprisonment] in the Philippines. The Tribunal found the reason for which her husband wishes to harm her is essentially and significantly a personal reason and not for a Convention reason. The issue before the Tribunal was whether the state would selectively withhold protection from the applicants for a Convention reason on their return to the Philippines.

22. The country information indicated there are government and non-government agencies providing support to women who are subject to domestic violence and the state has legislated to criminalise domestic violence. The Tribunal was satisfied that state protection is available to women and children in [Applicant 1’s] circumstances. The Tribunal noted that in respect to past harm from her husband when in the Philippines [Applicant 1] did not make any approaches to the state authorities who then denied her protection.

23. The RRT found that the applicants (individually or collectively) did not belong to a particular social group that should they seek state protection in the future this protection would be selectively withheld from them because of their membership of such a group. The Tribunal noted that [Applicant 1] is educated to university level, resides in greater Manila and that her family are witnesses to the behaviour of her husband putting her in a position to effectively seek state protection.

    [Applicant 1’s] current application for protection

24. Since [Applicant 1’s] first application for protection and the above outlined assessment, new claims lodged by [Applicant 1] include her divorce granted in Australia and that her husband visited her Aunt's house in January 2015 as set out in the delegate’s decision record as follows:

    The applicant is divorced from her [husband]. She had a [restraining] order against her husband from September 2009 [until] October 2011.

    [In] May 1995 she married her husband and upon her first pregnancy he had suspicions about the child's paternity.

    Her first child [was] born [in date] with limited developmental capabilities.

    The abuse from her husband continued with the birth of her second [child] born [in date], where her husband would frequently push and hit the child and accused the applicant of having had an affair.

    With the birth of their third daughter, [in date], the paternity of the child was again questioned but her husband continued to provide financial support for the family.

    In 2006, the applicant arrived in Australia as a dependant on her husband's [temporary visa]. Their eldest daughter remains in the Philippines under the care of her parents in [Manila].

    Since arriving in Australia, her husband restricted her communication with others outside the family and monitored her phone and activities and increased his aggressiveness towards her and her children.

    [In] September 2008, her husband returned home late, drunk and abusive. He attempted to force entry into the applicant’s room. She used the bed as a barricade to prevent his entry. She then escaped early for work, and upon her return home found a large hole punched in the wall.

    She phoned her husband at work asking him why he tried to prevent her leaving her room as she feared confronting him in person. He informed that he wanted to lock her in to prevent her leaving the house. She feared for her safety.

    Her husband had taken her youngest daughter in September 2009 without her mother's knowledge from a friend's home where she was sheltering with her children. She contacted the police and applied through the courts for her daughters return with the assistance of police.

    Her husband sent threatening texts to the applicant and emptied their joint bank account before returning to the Philippines in October 2009.

    She has remained in paid employment in Australia to support her children as well as sending money to the Philippines to support her eldest daughter who is dependent on her for financial support.

    She fears her divorced husband, will seek to harm her and her children if she returns to the Philippines. She fears her youngest daughter will be kidnapped by her husband and he can injure or kill her. The applicant's daughter, [Applicant 2] has seen her father's gun in the family home and he has attempted to contact her on Facebook and by email.

    She fears her divorced husband has the influence to hire a killer friend [to] harm her due to his influence, money and possession of firearms.

    The government in the Philippines would not protect her or her children as they view domestic cases as a private matter.

    Her husband is able to bribe the police to avoid prosecution. The applicant fears sexual abuse from her ex-husband. Her sister has been sexually threatened by him and he raped [an age] year old [in] 1999.

    She fears her divorce gained in Australia in 2011 is not recognised in the Philippines and the domestic violence legislation in the Philippines is insufficient to protect herself or her children.

    The applicant's former husband is still seeking to interact with her. [In] [January] 2015 the applicant's husband visited her aunt's house to threaten the applicant. The applicant's former husband stated his intention was to remove their two younger daughters to [Country 1]. He threatened that he would be 'waiting for them when they returned to the Philippines'.

25. [Applicant 1’s] representative submitted that the risk to [Applicant 1] is exacerbated by several factors including her gender and status as a single woman in a country that does not legally recognise foreign divorces of Filipino women. The representative also stated that the threats made against [Applicant 1’s] life are made all the more tenable by the fact that [the ex-husband] is from a wealthy family and has personal ties to organised crime in Manila and he had hired contract killer [Mr B] to murder [Applicant 1] should she return to the Philippines.

26. [Applicant 1] attended an interview with the department [in] February 2015. She provided the following relevant evidence as set out in the delegate’s decision record:

    ·In relation to her ex-husband’s current whereabouts, [Applicant 1] said her auntie had told her recently that he is in [Country 1] but she cannot verify this and that a friend had told her that her ex-husband has a girlfriend because she viewed the information about him on his Facebook page.

    ·[Applicant 1] said she had no contact with her ex-husband since he departed Australia in 2009.

    ·[Applicant 1] said that her ex-husband did not have any contact with her family members in the Philippines and he did not visit their eldest daughter at all.

    ·[Applicant 1] worked to support herself and her daughters, her parents and siblings in the Philippines worked and she said her family’s lifestyle in the Philippines is at a ‘middle level’.

    ·In relation to her family’s view about her divorce from her ex-husband in Australia, [Applicant 1] said her family were shocked when she told them and they were sad and worried about her and her kids. [Applicant 1] said that her family had asked her to return to the Philippines so her family could care for her after her marriage had ended.

    ·[Applicant 1] agreed she has a stable family network to rely upon in the Philippines even though she is a divorced woman and her children talk to family members in the Philippines, sometimes in their limited Tagalog at least twice a week.

27. In a statutory declaration dated [in] September 2017, [Applicant 1] also provided the following additional information:

    ·Approximately [a number of] months ago, her ex-husband contacted her daughter, [Applicant 2], on Facebook. He wished them Merry Christmas and they talked on and off after this.

    ·Her ex-husband then sent [Applicant 2] and [Applicant 3] money, the last time being around October 2016.

    ·During this time, he kept asking [Applicant 1’s] daughters to come and live with him in [Country 1] and when they said they didn’t want to do this, he messaged [Applicant 1] and told her that [Applicant 2] should not be doing her apprenticeship and dropping out of school.

    ·Her ex-husband started telling lies to [Applicant 2] about the domestic violence in the past and told her it was all fake. He said that if it had happened in the Philippines nothing would have happened, the laws in Australia are too soft.

    ·Her ex-husband also messaged a friend of hers, [Ms A] and asked her questions about [Applicant 1’s] daughters. [Ms A] ignored him.

28. [Applicant 1’s] representative also provided a pre-hearing submission reiterating earlier claims and country information, including that [Applicant 1] faces a well-founded fear of persecution by virtue of her status as a woman in the Philippines.

    [Applicant 2’s] current application for protection

1. [Applicant 2’s] claims for protection as set out in the delegate’s decision record which she provided to the Tribunal are as follows:

   As a child living with her parents in the Philippines she was taken by her father everywhere. She saw her father's gun in her room in one of her drawers. She was shocked and too scared to tell her parents that she had seen it. She was also fearful of being accused of lying by her father as he regularly accused her and her mother of lying to him.

   After the applicant's arrival in Australia in May 2007, she witnessed her father become angry and aggressive towards her mother.

   The applicant saw her parents arguing and her father yelling and shouting at her mother. When she asked her father to stop he would yell at her and compare her unfavourably to her mother. The applicant also saw her parents physically fighting.

   The applicant's father came home late one night, drunk, and tried to get into the bedroom but it was barricaded by a bed. He tied the door to the bedroom to prevent them from leaving. Following this the applicant, her sister and her mother slept in the same room together out of fear of her father.

   The applicant and her sister and mother moved to a friend of her mothers. Her father turned up to where the applicant and her younger sister, [Applicant 3] were living and took [Applicant 3] with him. Her father refused to return [Applicant 3] to her mother. The police were called and after about a week [Applicant 3] was returned to her mother with the assistance of the police. The applicant was told by her sister that in the time she was taken by their father she only ate [fast food] and did not shower.

   The applicant is aware that her mother gained a divorce from her father in Australia. The applicant understands that her mother's divorce will not be recognised in the Philippines as divorce there is not permitted.

   The applicant believes her father will not be happy as her mother has divorced him in Australia and will not accept or recognise their divorce.

   The applicant fears that her father will try to locate her in the Philippines and access her Facebook page. He has previously tried to add her on different Facebook pages. The applicant's father has accessed her email account and emailed her friends.

   The applicant fears that she and her younger sister, [Applicant 3] will be forced to live with her father in the Philippines.

   The applicant fears that if forced to live with her father in the Philippines he will be physically abusive and controlling toward her. The applicant is unfamiliar with the Philippines and has only lived in Manilla as a child.

   The applicant fears that the police in the Philippines are corrupt and will not offer her protection from her father taking her from her mother.

   The applicant is fearful of her father's contacts and the fact that he has a gun. She fears her father will kill her mother as he has threatened to do so in the past. The applicant fears her father will also kill her because he has compared her to her mother.

2. [Applicant 1’s] representative submits that [Applicant 2] is at particular personal risk due to:

   ·Her young age and gender;

   ·Her status as a child of a divorcee in the Philippines;

   ·Her inability to speak, read or write in Tagalog (official language in the Philippines);

   ·She has spent her formative years in Australia;

   ·Her father has tried to contact her on the internet;

   ·Her personal safety is threatened by her father's intent on revenge:

   ·She will be kidnapped by her father; and

   ·Membership of a particular social group, 'family member of a divorcee in the Philippines'.

   [Applicant 3’s] current application for protection

3. [Applicant 3’s] claims for protection as set out in the delegate’s decision record which she provided to the Tribunal are as follows:

   The applicant was [age] years old when her father came and took her by car from the house where she, her sister and her mother were staying after fleeing from domestic violence.

   The applicant lived with her father for some days before her mother came with a policeman and took her back to live with her sister and her mother.

   The applicant is aware that her mother applied for and was granted a divorce in Australia.

   The applicant fears if she goes back to the Philippines she will be kidnapped by her father.

   The applicant is scared she will have to live with her father and not be able to see her mother and her sister.

   The applicant fears that the police will not be able to offer her protection in the Philippines because her father is very powerful.

4. [Applicant 1’s] representative submitted that [Applicant 3] is at personal risk because of:

   ·Her young age and gender;

   ·Her status as a child of a divorcee in the Philippines;

   ·Her inability to read or write in Tagalog (official language in the Philippines);

   ·She has spent her formative years in Australia;

   ·She has been kidnapped by her father in the past and poorly cared for at that time;

   ·Her personal safety is threatened by her father's intent on revenge;

   ·She will be kidnapped by her father and abused by him; and

   ·Membership of a particular social group, 'family member of a divorcee in the Philippines'.

   Evidence

5. The evidence before the Tribunal includes the following relevant material:

   ·The second completed protection visa form, lodged [in] March 2014.

   ·Photocopies of the applicants’ birth certificates.

   ·Photocopies of the applicants’ Philippines passports.

   ·Statutory declarations from each of the applicants, signed and dated [in] March 2014.

   ·Signed, undated submission from the applicant’s representative.

   ·Signed submission from the applicant’s representative dated [in] March 2014.

   ·Signed statement dated [in] January 2015 from [a witness].

   ·Signed submission from the applicant’s representative dated [in] March 2015.

   ·The Refugee Review Tribunal Decision Record of 22 October 2010.

   ·The applicants’ Departmental interview [in] February 2015.

   ·The delegate’s protection visa assessment records (‘delegate’s second decision record’) of [June] 2015.

   ·The applicant’s online application for review on 26 June 2015, which include copies of the delegate’s decision records.

   ·Signed submission from the applicant’s representative dated 27 September 2017.

   ·Signed statutory declaration dated 27 September 2017 from [Applicant 1].

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of reference

6. The applicants claim and the Tribunal is satisfied on the basis of the personal details provided, that they are nationals of the Philippines. Philippines is therefore the receiving country for the purpose of assessing the applicants’ claim for protection.

7. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s36(3).

   Tribunal hearing

8. During the hearing, the Tribunal discussed with the applicants their background, their family, their education, their employment, where they lived in the Philippines, their activities in Australia and why they fear returning to the Philippines.

9. [Applicant 1] told the Tribunal that prior to 1990, she lived with her parents in [Manila], Philippines. From 1990, she moved into her own house in the same compound as her parents and other family members and lived there through her marriage until she travelled to Australia with her then husband and two youngest children in 2006. [Applicant 1] told the Tribunal that her parents continue to live in the family home with her eldest daughter (who is now [age]-years-old) and her sister is currently living in her house. [Applicant 1] said her father works [in an occupation] and her mother, a [different occupation]. [Applicant 1] told the Tribunal that one of her sisters and her brother live in the same compound with her parents and her other sister lives in greater Manila.

10. [Applicant 1] told the Tribunal that she speaks to her mother, father and eldest daughter in the Philippines almost daily using ‘Viber’. Her brother and sisters are all married with children and she speaks with them weekly. [Applicant 1] said that [Applicant 2] and [Applicant 3] might talk to their sister and relatives in the Philippines a couple of times per week but they have some difficulties with the Philippines language (although her family in the Philippines can speak English).

11. [Applicant 1] told the Tribunal that she completed a [course] and undertook work experience in [City 1 in Australia]. She said she continues to [work] full-time and another part-time job in order to support her family in Australia and daughter in the Philippines.

12. [Applicant 2] told the Tribunal that she left the Philippines when she was around [age]-years-old. She completed approximately [a few] years of school in the Philippines and completed to [a grade] in Australia before beginning a [course] where she has completed two years of a three to four-year apprenticeship and she is working [full-time]. [Applicant 2] said she that in addition to her grandparents and sister in the Philippines, she talks to her aunties and cousins, particularly using Facebook.

13. [Applicant 3] told the Tribunal that she was [age]-years-old when she left the Philippines and is now in [a grade] at school. She said that other than her sister and grandparents, she does not talk to other family members in the Philippines as much.

14. The Tribunal asked the applicants what they feared in returning to the Philippines. [Applicant 1] said that she fears her husband will find out if they return and he will take the children from her. [Applicant 1] said that her former husband has influence because he has money and he can bribe policemen and this is considered a family matter so the government does not care. She said that she feared her former husband would start to control them again through his behaviour and she was sure he would not change. The Tribunal asked how [her ex-husband] would control them when they were not living together. [Applicant 1] said they were still legally married.

15. [Applicant 1] also said that she fears her former husband knows where she lives and he will humiliate or harass her in front of other people. The Tribunal noted that they lived in a compound in the Philippines with security. [Applicant 1] said yes, but the security can be bribed because people want money. [Applicant 1] told the Tribunal she also feared being killed by her former husband because of the past violence. The Tribunal noted that [Applicant 1’s] representative had also made a submission in relation to her status as a single woman and a divorcee and asked her what her fears were in relation to this. [Applicant 1] said that being a single mother in the Philippines will mean humiliation. She said that throughout the violence and problems she experienced with her then husband when they lived in the Philippines, she never talked to anyone about it because it was embarrassing. The Tribunal noted that it appeared that attitudes were changing in the Philippines, including support for single parent households and a majority of Filipinos supporting legalising divorce. It also noted that it might not consider her fear of humiliation as amounting to significant harm. [Applicant 1] said it was embarrassing to her family and she would be considered lower class because she was single.

16. The Tribunal noted that while [Applicant 1] was still legally married in the Philippines, legal separation, annulment and nullity of marriage were available and asked the applicant if she had made any enquiries or obtained legal advice about these options. [Applicant 1] said she had not yet made any of these enquires. She said that it costs a lot of money and takes a long time and she would rather keep the money for her children.

17. The Tribunal asked [Applicant 1] how she thought her former husband might take the children from her. [Applicant 1] said it was because he had tried to communicate with the girls and he was asking them to go with him to [Country 1]. [Applicant 1] said he last contacted [Applicant 3] approximately two months ago saying to her “if you want to come let me know”. He last contacted [Applicant 2] around December 2016. The Tribunal asked [Applicant 1] how he would be able to take the girls to [Country 1]. [Applicant 1] said that her former husband said he had papers. [Applicant 2] added that her father had sent her an official document that she showed the Tribunal on her phone. The document appeared to relate to an application for [Applicant 2] (as a child, then under the age of 18) to join her father’s [Country 1] citizenship. [Applicant 2] said that she thought he wanted them to leave their mother and he was bribing them to come to [Country 1] and if he doesn’t get what he wants, he turns violent.

18. The Tribunal noted that [Applicant 2] was now an adult could make her own choices and that [Applicant 3] would require the consent of her mother in order to obtain a visa that enabled her father to take her from the Philippines to [Country 1] and asked [Applicant 1] whether it was likely her fear would be realised. [Applicant 1] said that her former husband has money so he can forge documents and he can say he has consent.

19. [Applicant 2] told the Tribunal that she feared returning to the Philippines because she was concerned for their safety regarding her father. She said her father was very controlling when they lived together and she was afraid that he would harm her mother and force them to live with him. The Tribunal noted that she was now an adult and asked how she thought her father might force her to live with him. [Applicant 2] said that it didn’t matter about age because she was his property regardless.

20. [Applicant 3] told the Tribunal that she feared returning to the Philippines because [Mr B] was a ‘hit man’ and she feared he could hurt them and that her father would pay him to do something. The Tribunal asked [Applicant 3] why she thought her father or [Mr B] would do that. [Applicant 3] said that they are best friends and he might still be mad at them. Later in the hearing, [Applicant 1] told the Tribunal that neither [Mr B] nor any other of her former husband’s gang members had made any threats against them.

21. The Tribunal noted that the applicants’ representative also submitted that considerations for [Applicant 2] and [Applicant 3] included that they were women, ‘children of a divorcee’ and had limited knowledge of the Philippine language, Tagalog. [Applicant 2] said that she doesn’t know much about the Philippines because she didn’t live there long enough to see what it might be like to be treated as an older woman. She said that language is an issue and she would have to go to the city. She said she was also concerned that if people find out she cannot speak Tagalog, they might come after her because they will think she is rich. She was not aware of what it might be like to be a child of a divorcee because she has not experienced it. [Applicant 3] did not add anything further.

22. [Applicant 1] said that language will be hard for her children. She said Filipinos do not speak much English and they will think they are rich if they speak English and crime rates are high for abduction and ransom. [Applicant 1] said it will not be safe for them because she is single with no husband to protect them. The Tribunal noted that [Applicant 1] had said she had family in the Philippines who had asked her to return so they could look after them when she had the original problems in Australia and asked whether her family could offer them protection. [Applicant 1] said that she did not think her family could offer much protection because her former husband was in influential person because he has money and he is a gambler. The Tribunal noted that [Applicant 1] said that after they were married, her former husband lived with her and her family and asked why they did not live with her former husband’s family if he was more influential. [Applicant 1] said that her husband controlled the money.

23. The Tribunal also noted that it was not aware of country information to support a claim that people returning from English-speaking countries or people who speak English in the Philippines are considered rich and at risk of harm and that this was a new claim. The Tribunal provided the applicants’ representative with time following the Tribunal hearing to provide further information in relation to this claim.

24. The Tribunal asked the applicants about what they knew of [her ex-husband] and his current situation. [Applicant 1] said that she understood (through [friends]) that he was living in [Country 1] and he moved there approximately six months after he left Australia, around 2010. She said he has [Country 1] citizenship and he has [a business] [in Country 1]. [Applicant 2] also noted that she understood he had also opened a [some shops] in the Philippines [in] March 2016. She said he went back the Philippines to open the shop and she was aware that he was also in the Philippines in January 2015 when he went to their aunt’s place.

25. [Applicant 1] told the Tribunal that her former husband had not had any contact with any other of her family members in the Philippines and none of his family had any contact with her family. She said he had not filed any custody applications in the Philippines and he never visited their eldest daughter who still lives in the Philippines. [Applicant 2] noted that in March 2016, her father wanted to take her sister and her grandparents out when he was in the Philippines but her grandfather said no because he knows what her father is like.

26. The Tribunal asked the applicants about their recent contact with [her ex-husband]. [Applicant 1] said her former husband messaged her through Messenger about getting the children. She said she thought this was around 2014 and then again in October 2016. [Applicant 1] said she responded and then blocked him.

27. [Applicant 2] told the Tribunal that she started talking to her father in early 2016 after he sent her a message on Facebook wishing her a merry Christmas. [Applicant 2] said they corresponded in Tagalog on Facebook and he offered to help her and he then provided $[amount] to assist with materials for her apprenticeship and he transferred the money after she provided her bank account details. She said he also transferred $[amount] for [Applicant 3’s] birthday. [Applicant 2] said that when she told him they were going to [City 1 in Australia] for her [birthday], he transferred her $[amount]. [Applicant 2] said he then asked about the validity of her and [Applicant 3’s] passports. [Applicant 2] said he then sent her a message wanting her to come to [Country 1] and told her she could have a [designer item] if she came. [Applicant 2] said that her father kept asking her if her mother had decided to let her and [Applicant 3] go to [Country 1] and her father then said that her mother always thinks of herself. [Applicant 2] said she had previously blocked him on Facebook but he opened a new account.

28. The Tribunal discussed a range of country information with the applicants in relation to state protection for women in the Philippines, support for victims of domestic violence, divorce and community attitudes toward single parents and women’s rights in the Philippines. The Tribunal noted that the country information indicates that there are a number of legal protections for victims of harm including protection orders; that there are government and non-government agencies that provide support and advocate on behalf of victims of domestic violence; that the state has legislated to criminalise domestic violence and that generally state protection mechanisms mandated in recent years accommodate women who are victims of domestic violence. The Tribunal noted that while the number of cases reported is increasing, those cases are being investigated and convictions have been obtained. In particular, the Tribunal noted that violations under the Anti-Violence Against Women and Children (VAWC) Law have seen charges against perpetrators pressed and violations punished to a level higher than similar acts in the Revised Penal Code, making this law one of the most punitive against gender-based violence in Asia.[1]

    [1] Likhaan Centre for Women’s Health with support from Asian-Pacific Resource Centre for Women’s Health (ARROW), Country Profile on universal access to sexual and reproductive rights – Philippines, 31 August 2014.

1. The Tribunal asked the applicants why they could not avail themselves of these measures in their circumstances. [Applicant 1] said that the country information is just documents and it is not the reality. [Applicant 1] said that the Philippines government doesn’t give money to these things because it is focussed on the drugs issue and not family matters. The Tribunal asked [Applicant 1] if she was aware of any of the measures available in the Philippines including protection orders and the support of non-government organisations. [Applicant 1] said that it is not the reality. She said they will laugh at her and say it is a family matter. [Applicant 1] also said that it is only temporary help because they don’t have the resources. The Tribunal asked [Applicant 1] if she could take advantage of the support of her family to assist her. [Applicant 1] said that they have their own expenses. The Tribunal noted that the relationship she described with her family didn’t sound like they would let her come to harm. [Applicant 1] said that her former husband can do what he wants because he has influence and the situation is the same for her daughters. [Applicant 2] told the Tribunal that the Philippines is a developing country with a lot of crime so the country cannot take care of domestic violence issues.

2. The Tribunal discussed country information in relation to kidnapping and abduction, including that the Philippines Commission on Women reported on 1 March 2013 that there had been twenty abductions and kidnapping which was a decrease in this type of crime. Kidnapping and abduction tended to be more for political reasons and particularly in relation to issues affecting Mindanao. The Tribunal noted that in addition to the country information, [Applicant 2] was now an adult and [the ex-husband] would require [Applicant 1]’s consent in order to take [Applicant 3] to [Country 1] and therefore, the Tribunal needed to consider the likelihood of this fear being realised. The Tribunal also noted that if [the ex-husband] did anything illegal in relation to his children (or [Applicant 1]), he would be putting at risk his [Country 1] citizenship and in order for him to forge any documents, he would need to provide those to the [Country 1] Embassy for assessment. [Applicant 1] said that the issue is becoming bigger and if her former husband wants to get at her daughters, he can.

3. The Tribunal also discussed the current economic and employment situation in the Philippines in relation to DFAT’s report 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 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.

4. 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. The Tribunal asked the applicants if they would like to comment on this information. [Applicant 1] said that the unemployment rate is getting higher and competition for jobs means employers prefer more qualified and experienced people and she is concerned about her age. [Applicant 2] added that she did not finish [school] so this may affect her chances of employment.

5. The Tribunal noted the claim in relation to [Applicant 2] and [Applicant 3’s] language ability in the Tagalog language and put to the applicants that there may be a level of discrimination in relation to their language ability in Tagalog but that this may not be considered serious or significant harm. [Applicant 1] told the Tribunal that [Applicant 2] and [Applicant 3] may experience bullying because they hardly speak Tagalog.

6. In accordance with s.424AA procedure, the Tribunal advised the applicants that according to an article [dated] [in] October 2016, [Mr B], was killed in an incident. The Tribunal noted that if the news report was accurate, the applicants’ fear that [Mr B] might be hired by [her ex-husband] to kill or abduct the applicants would not be realised. The Tribunal advised the applicants that they could seek additional time to respond to the information (including in a post-hearing submission) and [Applicant 1] requested and was granted an adjournment to talk to her representative. Following the adjournment, [Applicant 1] told the Tribunal that if [Mr B] is dead, her former husband can do what he wants and he can hire someone else to do it.

7. The Tribunal took evidence from [Ms A], a friend of [Applicant 1] and former nanny to [Applicant 2] and [Applicant 3]. [Ms A] told the Tribunal that she did not see [the applicant’s ex-husband] do anything wrong and she did not know him for very long in Australia. [Ms A] told the Tribunal that [he] sent her a message in 2016 and he was asking about his children. [Ms A] said that she [replied]  and told him to contact his children and that if anything bad happens to his family in Australia, she will let him know. [Ms A] also told the Tribunal that in the message from [the applicant’s ex-husband], he blamed [Applicant 1] for [Applicant 2] not finishing [school] and for dating a ‘western, coloured guy’, saying that she is a bad person.

8. The Tribunal asked the applicants if there was anything else they wanted to make the Tribunal aware of. [Applicant 3] told the Tribunal that she gave her father a chance but her psychologist told her that people like him won’t change – his pattern is that he is nice and then violent. She said she is not intending on getting in touch with her father. [Applicant 1] told the Tribunal that she wants to have a peaceful life with no fear and a normal family with no harm. She said she doesn’t want her former husband to take her children or harass her.

9. The Tribunal invited the applicants’ representative to make a submission. The representative told the Tribunal that [Applicant 1] has experienced physical, verbal and emotional abuse from her former husband and this has impacted her a lot and has made it difficult for her to talk about. The applicant’s representative submitted that [the applicant’s ex-husband] could not control himself for the sake of his Australian visa and harmed [Applicant 1] in Australia and on that basis, [the applicant’s ex-husband] is unlikely to care about his [Country 1] citizenship. He said that the applicants would be returning to their family home which [her ex-husband] knows and there is country information that indicates that for every point raised by the Tribunal, there is countering information. The representative told that Tribunal that while not completely relevant, the Philippines President talks openly about the police killing people in the ‘war on drugs’ so while indicatively there is all the policies and legislation in place (in relation to domestic violence) but if the police are murdering people in the Philippines then he questioned the implementation of the policies and legislation. He also referred to a general breakdown in law and order and, while stating that the Philippines is not a warzone, the applicant’s representative submitted that having rights on paper requires the state to enforce those rights.

10. The Tribunal provided the applicants’ representative with time following the Tribunal hearing to provide further information in relation to claims raised in relation to [Applicant 2] and [Applicant 3]. On 17 October 2017, the Tribunal received the following statement from the applicant’s representative:

    Following the hearing on 4 October 2017 we were given an opportunity to provide further submissions on particulars raised during the hearing in relation to [Applicant 2] and [Applicant 3].

    We will not providing anything further, we continue to rely on the submissions previously provided to the Tribunal which covers the claims [in] full detail.

    Country information

    Violence Against Women in the Philippines

11. The US Department of State 2013 Human Rights Report for the Philippines finds that:

    '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. ....The DSWD extended assistance to 521 victims of physical abuse and maltreatment as of September, a statistic that likely significantly underreported the level of violence against women. '[2]

    [2] US Department of State, Philippines - Country Reports on Human Rights Practices 2013, 27 February 2014.

12. The Report finds that the state has implemented a range of resources to address the widespread domestic violence occurring against women and children:

    'The PNP and DSWD both maintained help desks to assist victims of violence against women and encourage the reporting of crimes. With the assistance of NG0s, the CHR, and the Philippine Commission on Women, 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 1,909 desks throughout the country to deal with these matters, an increase compared with 2012.[3]

    [3] US Department of State, Philippines - Country Reports on Human Rights Practices 2013, 27 February 2014.

13. Despite these measures, enforcement has been uneven and violence against women in the Philippines continues to be a significant problem.[4] The Philippines is a traditionally patriarchal, male-dominated society. Since the legislation was passed, the number of cases or reported intimate partner violence has been steadily increasing.[5] For instance:

    From January to April of 2012, 5,629 cases were reported. ...as of August (2013) the Philippine National Police (PNP) reported 9,687 cases of domestic violence against women and children: 2,908 were filed in court, 781 were under investigation, 1,409 were settled, and 4,589 were referred to other agencies for further investigation. There have been a number of convictions although the success of the measures to protect women and children cannot be accurately monitored.[6]

    [4] Freedom House, Freedom in the World 2015 – Philippines.

    [5] United Nations, Steep rise in gender-based violence, Integrated Regional Information Network, 30 May 2012.

    [6] United Nations, Steep rise in gender-based violence, Integrated Regional Information Network, 30 May 2012.

14. The 2008 National Demographic Health Survey estimated that one in five Filipino women between the ages of 15 and 49 had experienced physical violence, while 14.4 per cent of women have been physically abused by their husbands.[7]

    [7] United Nations, Steep rise in gender-based violence, Integrated Regional Information Network, 30 May 2012.

15. According to Nharleen Santos-Millar, Policy Development and Advocacy Division Chief of the Philippine Commission on Women (PCW):

    Violence against women is a societal concern. Everyone needs to be sensitized - judges who think they need to save the family no matter what, communities who pressure women to stay with their abusive husbands - you can't undo a mindset like that overnight.[8]

    Divorce and community attitudes toward single parents

    [8] United Nations, Steep rise in gender-based violence, Integrated Regional Information Network, 30 May 2012.

16. Divorce is forbidden under the Philippines Civil Code since 1950 because of the influence of the Catholic Church in the country.[9] However a survey conducted by the polling group Social Weather Stations (SWS) in 2015 found that at least 60 percent or three out of five Filipinos want divorce to be legalised.[10] A bill proposed by the Gabriela Women's Party is currently before parliament aimed at legalising divorce and to help resolve the issue of irreconcilable separations.[11]

    [9] UCA News, Philippine lawmakers take aim at divorce law despite strong public support, 25 March 2015.

    [10] UCA News, Philippine lawmakers take aim at divorce law despite strong public support, 25 March 2015.

    [11] UCA News, Philippine lawmakers take aim at divorce law despite strong public support, 25 March 2015.

17. Support for single parent households in the Philippines is evidenced in the introduction to Parliament of a Solo Parents Bill to extend the rights given to single parents under the Solo Parents Act.[12] The legislation introduced aims to ease the burden of 14 million solo parents by giving single parents 20 per cent discounts on the purchase of milk formula products, medicines and supplements and diapers and reduce the high social cost due to the absence of fathers or mothers at home as well as the financial difficulties encountered by single parents.[13]

    [12] Journal Online, Support for Solo Parents Bill grows, 27 March 2011.

    [13] Journal Online, Support for Solo Parents Bill grows, 27 March 2011.

18. An increasing number of couples are starting families out of wedlock:

    A growing number of Filipinos now treat marriage as an option, rather than a requirement, for starting families, said Nene Baligad, a member of a unit of the National Statistics Office that licenses people who officiate weddings. 'Nowadays, some couples just live in and only get married after having four or five children,' she told AFP.[14]

    Women's rights

    [14] The Straights Times, Marriage going out of fashion in the Philippines, 15 July 2011.

19. The US Department of State 2013 Human Rights Report for the Philippines finds that:

    Women are accorded the same rights as men regarding the ownership, acquisition, management, administration, enjoyment, and disposition of property and assets. Married women generally have property ownership rights equal to married men.

    Although women faced workplace discrimination, they continued to occupy positions at all levels of the workforce.

    A legal annulment may terminate a marriage, but its costs and bureaucratic burdens precluded it as an option for many families. Many lower-income couples simply separated informally without severing their legal marital ties. The law provides that in child custody cases resulting from annulment, illegitimacy, or divorce in another country, children under age seven are to be placed in the care of the mother unless there is a court order to the contrary.

    Children age seven and older normally are also to remain with the mother, although the father may dispute custody through the courts.[15]

    [15] US Department of State, Philippines - Country Reports on Human Rights Practices 2013, 27 February 2014.

20. According to Freedom House (2011):

    The country has been particularly successful in closing the gender gap in education and health. After nine years of lobbying by women's groups, the Philippines ' Magna Carta of Women, a comprehensive package of legislation on gender equality, was signed into law in August 2009. The legislation, guided by the framework of the international Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), lays out the state's responsibilities in recognizing, protecting, and promoting the rights of women.[16]

    State Protection for women

    [16] Freedom House, Countries at the Crossroads 2011: Philippines, 1 January 2012.

21. In the Philippines, progress has been made in addressing and eliminating violence against women by both government and non-government organisations:

    Some of the more significant laws passed/were RA 8353 (or the Anti -Rape Law) and RA 8505 of the Rape -Victim Assistance and Protection Act; the Anti-Sexual Harassment Law (or RA 7877) and the Anti -Trafficking of Persons Law. The Family Courts Act of 1997 (RA 8369) established family courts in major cities all over the country. It is expected to foster a more proactive approach to protecting the rights of women and children against domestic violence and incest.[17]

    [17] University for Peace, Peace and Conflict Monitor, A deeper look at violence against women (VAW): The Philippines Case, 1 January 2009.

22. Another milestone in the advocacy to eliminate Violence Against Women (VAW) includes:

    The Republic Act (RA) 9262, known as the Violence Against Women and their Children Law, was passed in 2004. It broadened the definition of abuse to include physical, emotional and economic harm. It also made violence by an intimate partner (anyone with whom a woman has a sexual relationship) a public crime, and made it possible for anyone -not just the victim - to file a case against a perpetrator.

    Since the legislation was passed, the number of cases of reported intimate partner violence has been steadily increasing, from 218 in 2004 to 9,021 in 2011. Violations of RA 9262 make up the largest component of reported acts of violence against women (VA W), including rape, sexual assault, and physical injury.[18]

    The passage of RAs 9262 and 9208 paved the way for the creation of inter -agency councils that will specifically look into the issues and concerns related to the implementation of these laws. The Inter -Agency Council on Violence Against Women and Their Children (IACVAWC) for the RA 9262 and the Inter -agency Council on Anti -Trafficking (IACAT) for RA 9208 are currently developing policies, programs, systems, and procedures to further strengthen the implementation of the two laws. Likewise, the Supreme Court developed the Rule on Violence Against Women which spells out the Court's procedures and guidelines in handling VA WC cases.[19]

    [18] United Nations, Steep rise in gender-based violence, Integrated Regional Information Network, 30 May 2012.

    [19] University for Peace, Peace and Conflict Monitor, A deeper look at violence against women (VAW): The Philippines Case, 1 January 2009.

23. According to Marlene Po, a kagawad (county official) of Barangay San Lorenzo in Makati City and chairperson of the Committee on Culture and Education

    Women can run to their barangays if she is in danger, and the barangay can give the woman counselling and shelter, if the VAW case is really serious, the barangay will help the abused file a case in court and even help her issue seek a temporary restraining order.[20]

    [20] Manila Bulletin, Comic books heighten awareness of violence against women, 10 May 2011.

24. Country information regarding legal protections for victims of harm indicates that any woman who experienced any form of violence from her husband, live-in partner or persons with whom she had dating or sexual relationship may be issued a protection order to prevent the latter from inflicting further acts of violence on her and her children.[21]

    [21] COISS, State protection – Solo parent, 8 December 2015.

25. Another immediate remedy for the victim is to go to their barangay and apply for a Barangay Protection Order (BPO). According to the Public Attorney's Office in the Philippines:

    …upon the receipt of her application, their Pun ong Barangay, or in his absence, any available Barangay Kagawad, shall make an ex-pane determination of the basis of the application, and ([warranted, shall immediately issue the BP0 on the same date of the application. The BP0 shall be effective for fifteen (15) days.[22]

    [22] COISS, State protection – Solo parent, 8 December 2015.

26. A victim of domestic abuse may also file a verified petition for a permanent protection order (PPO) before the family court of the place where she is residing. The Public Attorney's Officer advised that:

    Upon filing her petition for permanent protection order, the court shall make an at-pane determination on the issuance of a temporary protection order (TP0). If warranted, the TPO issued by the court shall be effective for thirty (30) days. Thereafter, the court shall schedule a hearing on the issuance of .a PPO prior to or on the date of the expiration of the TPO. (Section 15, Ibid.) If after due notice and hearing, the court is convinced of your friend's application, it will issue a permanent protection order for her.[23]

    [23] COISS, State protection – Solo parent, 8 December 2015.

1. Moreover, all temporary protection orders and permanent protection orders issued under RA 9262 shall be enforceable anywhere in the Philippines. The respondent who violates the terms of the orders shall be punished with a fine ranging from five thousand pesos (P5,000.00) to fifty thousand pesos (P50,000.00) and/or imprisonment of six (6) months.[24]

   [24] COISS, Domestic violence – State Protection – Corruption, 20 October 2015.

2. Violations under the Anti-Violence Against Women and Children (VAWC) Law have seen charges against perpetrators pressed and violations punished to a level higher than similar acts in the Revised Penal Code, making this law one of the most punitive against GBV in Asia.[25]

   The law provides immediate and long term relief through protection orders that women can avail of in the barangay (village) or the courts. Generally, Philippine laws that uphold the right to protection against gender-based violence and the right to sexual and reproductive health (SRI-I) services are strong.[26]

   Further, ‘women have made many social and economic gains in recent years’.[27]

   [25] Likhaan Centre for Women’s Health with support from Asian-Pacific Resource Centre for Women’s Health (ARROW), Country Profile on universal access to sexual and reproductive rights – Philippines, 31 August 2014.

   [26] Likhaan Centre for Women’s Health with support from Asian-Pacific Resource Centre for Women’s Health (ARROW), Country Profile on universal access to sexual and reproductive rights – Philippines, 31 August 2014.

   [27] Freedom House, Freedom in the World 2013 – Philippines, 23 April 2013.

3. Although a criticism of the GBV laws is they have:

   ...blind spots that detracts from substantive gender equality such as the non-mandatory prosecution of violence against women (VAW) and the forgiveness clause in marital rape, which effectively extinguishes the crime of rape. Barriers to the effective implementation of laws also detract from their power, which can include financial, geographic and political barriers.[28]

   Support for victims of domestic violence

   [28] Likhaan Centre for Women’s Health with support from Asian-Pacific Resource Centre for Women’s Health (ARROW), Country Profile on universal access to sexual and reproductive rights – Philippines, 31 August 2014.

4. Country information indicates that a number of government and non-government agencies provided support to women who are subject to domestic violence and that the state has legislated to criminalise domestic violence. Overall, the Philippine government has made efforts to curb violence against women with the creation and the application of various laws that specifically address the issue. Research indicates that although the application of these laws may not be adequate to protect women in all circumstances and may be unevenly enforced at various levels of society, generally state protection mechanisms mandated in recent years accommodate women who are victims of domestic violence.[29]

   [29] COISS, Philippines: CI150618143050259 – Article 33 of Revised Penal Code – Prosecutions – Domestic Violence – State Protection, 24 July 2015.

5. According to the US Department of State in June 2014 the Department of Social Welfare and Development (DSWD extended assistance to 223 victims of physical abuse and maltreatment. The Philippine National Police (PNP) and the DSWD both maintained help desks to assist victims of violence against women and encouraged the reporting of crimes. With the assistance of NG0s, the Commission on Human Rights (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.[30]

   [30] COISS, Philippines: CI150618143050259 – Article 33 of Revised Penal Code – Prosecutions – Domestic Violence – State Protection, 24 July 2015.

6. In a presentation by the Philippines, as the state under review in a July 2012 UN Human Rights Council report of the working group on the Universal Periodic Review, it was stated that:

   There has been a general improvement in gender-sensitive handling of cases relating to violence against women and children. There are over 27,000 violence against women (VA W) desks in villages throughout the country, over and above the 1,868 women and children protection desks in police stations nationwide, staffed by 3,240 female police personnel. Women and children protection units in regional and district government hospitals are being upgraded to better serve victims of rape and domestic violence. The Supreme Court has trained over 2,000 judges and court personnel on the Convention on the Elimination of All Forms of Discrimination against Women and gender sensitivity.[31]

   [31] COISS, Philippines: CI150618143050259 – Article 33 of Revised Penal Code – Prosecutions – Domestic Violence – State Protection, 24 July 2015.

   Assessment

7. The issues in this review are whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country of the Philippines, there is a real risk they will suffer significant harm. The Tribunal also must consider whether [Applicant 2] and [Applicant 3] have a well-founded fear of being persecuted as defined in Article 1 of the Convention.

8. On the basis of the applicant’s submissions, the Tribunal accepts that the applicants were subject to physical and emotional violence for the duration of the marriage until their husband and father departed Australia in October 2009, including that [the ex-husband] took [Applicant 3] in September 2009 and this action required police intervention to return [Applicant 3] to her mother.

9. On the basis of the applicants’ evidence the Tribunal finds that the reason for which [the ex-husband] may seek to harm them is essentially and significantly a personal reason and not for a Convention reason such as their religion, political opinion or membership of a particular social group.

10. In this regard, the Tribunal notes that the applicants gave oral evidence that [the ex-husband] is a dual citizen of the Philippines and [Country 1]. The applicants also told the Tribunal that [the ex-husband] is resident in [Country 1]; that he went to live in [Country 1] shortly after he departed Australia in 2009; and he currently runs a business there. While the applicants told the Tribunal that they are aware that he has visited the Philippines in 2015 and 2016 and he owns a business there (of which there is no evidence), the applicants also told the Tribunal that [the ex-husband] has not made any custody application for his eldest daughter who still resides in the Philippines; he has not visited his eldest daughter; the applicants are not aware of any threats made towards them by any of [the ex-husband]’s associates; the person the applicant’s claim had been hired to kill [Applicant 1] is reported as deceased; and when [the ex-husband] suggested taking his eldest daughter and her grandfather ([Applicant 1]’s father) out for dinner (through [Applicant 2] and [Applicant 1]) during his last visit to the Philippines, [Applicant 1’s] father refused on the basis that he knew what his former son-in-law was like and the applicants did not claim that there were any repercussions from that decision.

11. On this basis, the Tribunal has some doubts about the likelihood of the second and third applicants facing a real chance of serious harm or any of the applicants facing a real risk of significant harm from [the ex-husband] if they return to the Philippines in the reasonably foreseeable future.

12. However, given the applicants’ evidence is that [the ex-husband] continues to hold Philippines citizenship and may now run a business in the Philippines, the Tribunal accepts that he is likely to travel to the Philippines (albeit irregularly). On this basis and for the purposes of this review, the Tribunal is prepared to accept that the applicants face a real risk of significant harm in the reasonably foreseeable future from [the ex-husband].

13. The issue before the Tribunal is whether the applicants could obtain state protection such that there would not be a real risk that they will suffer significant harm. Considering the country information outlined above, the Tribunal is satisfied that the Philippines authorities have established a range of measures and are reasonably effective in addressing domestic violence. The Tribunal also notes that although there is corruption within the system, there is nothing in the information provided by the applicants to indicate that the state is unable or unwilling to protect them in their particular circumstances.

14. Accordingly, the Tribunal does not accept that the authorities would be unable or unwilling to protect the applicants in their circumstances. There is no evidence to show that the authorities have refused to do so. The applicants have not tested this and have not lodged a complaint to the police regarding domestic violence prior to their arrival in Australia. The applicants provided no reason why they could not take advantage of this protection or the judicial system, only that [Applicant 1] thought that the country information was “not the reality”.

15. The Tribunal acknowledges country information referred to earlier, particularly that there are organisations that provide a range of social welfare services for women and children experiencing domestic violence. The government's implementation of a range of resources to address the incidence of gender-based violence (GBV) is monitored by a range of different government agencies among which are the National Statistics Office (NSO), Department of Social Welfare, Department of Health, Philippine National Police (PNP), Department of Justice, Civil Service Commission and the Commission on Higher Education.[32] In addition, there are legal protections for victims of harm which indicate that any woman who experienced any form of violence from her husband, live-in partner or persons with whom she had dating or sexual relationship may be issued a protection order to prevent the latter from inflicting further acts of violence on her and her children.

    [32] Likhaan Centre for Women’s Health with support from Asian-Pacific Resource Centre for Women’s Health (ARROW), Country Profile on universal access to sexual and reproductive rights – Philippines, 31 August 2014.

16. As outlined above, all temporary protection orders and permanent protection orders issued under RA 9262 are enforceable anywhere in the Philippines. Violations are punishable by fines and/or imprisonment and violations under the Anti-Violence Against Women and Children (VAWC) Law have seen charges against perpetrators pressed and violations punished to a level higher than similar acts in the Revised Penal Code, making that law one of the most punitive against gender-based violence in Asia.

17. The Tribunal notes that [Applicant 1] stated that she did not report her husband to anyone previously because it was embarrassing. While the Tribunal accepts that there may have been or continue to be a ‘stigma’ or societal discrimination attached to the issues of marriage, divorce and domestic violence in the Philippines,[33] country information above also indicates that attitudes are changing. Country information also indicates a considerable focus on this issue and reports of prosecutions.

    [33] Department of Foreign Affairs and Trade, Country Information Report: The Philippines, 9 August 2017.

100.   The Tribunal has considered the applicants’ claims that state protection is only temporary help because they don’t have the resources and that the Philippines is a developing country with a lot of crime so the country cannot take care of domestic violence issues.

101.   In relation to the overall effectiveness of authorities in the Philippines, as noted earlier, the Tribunal relies on country information showing that the Philippines’ state protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. Police and indeed the government have been making a concerted effort since at least 2008 to protecting the rights of women and children against domestic violence and there is no evidence that the police have refused the applicants any assistance.

102.   The country information indicates the government has taken this issue seriously and has committed significant resources to do so. This in the Tribunal’s view demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicants by the Philippines State, that protection is durable and that the Philippines State is willing and able to offer such protection.

103.   Overall, on the available evidence, the Tribunal is not satisfied that the police have failed to act or would fail to act if requested to offer the applicants’ protection from [the ex-husband]. On the basis of the available evidence, the Tribunal is satisfied that effective state protection is available to the applicants. Therefore, the Tribunal finds that [Applicant 2] and [Applicant 3] do not have a well-founded fear of persecution due to the state failing to protect them from their father and that none of the applicants face a real risk of significant harm from [the ex-husband] because effective protection measures are available to them. 

104.   The Tribunal has considered the applicants’ claim that [the ex-husband] has hired [Mr B], to kill them and the fear that [the ex-husband] will kidnap [Applicant 2] or [Applicant 3] and take them to [Country 1] with him.

105.   As discussed with the applicants during the Tribunal hearing, according to an article [dated] [in] October 2016, [Mr B] was killed in an incident. On this basis, the Tribunal does not accept that the applicants face a real chance or a real risk of significant harm from [Mr B]. While the Tribunal notes [Applicant 1’s] evidence that even if [Mr B] is dead, her former husband can do what he wants and he can hire someone else to do it. However, [Applicant 1] also told the Tribunal that she was not aware of any threats made towards them by any of [the ex-husband]’s associates. Indeed, while the Tribunal acknowledges that [Applicant 2’s] evidence was that her father appeared to suggest visiting his eldest daughter and former father-in-law in the Philippines when they were corresponding in 2016, [Applicant 1’s] evidence was that her former husband has not directly contacted her family in the Philippines or his eldest daughter who still resides in the Philippines since he departed Australia. As such, the Tribunal is not satisfied that [the ex-husband] would seek to harm the applicants by way of hiring a killer or that there are any credible threats against the applicants.

106.   In relation to the applicants’ fear that [her daughters] may be kidnapped by [the ex-husband], information from the Philippines Commission on Women indicated that kidnapping and abduction tended to be more for political reasons and particularly in relation to issues affecting Mindanao. While the Tribunal understands the applicants’ fear in this regard, the Tribunal notes that [Applicant 2] is now an adult and therefore, [the ex-husband] would require her consent in relation to any travel outside the Philippines and similarly, [Applicant 3] would require the consent of [Applicant 1]. The Tribunal notes that [Applicant 1] claimed that her former husband would forge documents, the Tribunal does not accept the likelihood of this occurrence in the context of [Country 1] immigration laws and international child abduction obligations. Therefore, the Tribunal is not satisfied that [the daughters] face a risk of abduction to [Country 1].

107.   The Tribunal is also satisfied that the applicants have a strong family network in the Philippines to return to. [Applicant 1’s] family indicated that they wanted her to come home and they would assist her and the children following the issues she experienced in Australia. While the Tribunal acknowledges [Applicant 1’s] statement that her family have their own expenses, it is evident to the Tribunal that the applicants’ could take advantage of the support of their family to assist them and [Applicant 1’s] father has demonstrated that he is not willing to meet with [the applicant’s ex-husband] given he refused the suggestion of dinner when [the ex-husband] was last in the Philippines in 2016.

Fear of harm as women, single mother and children of a single mother

108.   The Tribunal is satisfied that [Applicant 1] is a single mother with three children. The Tribunal is also satisfied that [Applicant 1] has been married previously in the Philippines and she divorced her Filipino husband in Australia.

109.   In relation to [Applicant 1’s] claim to fear harm, discrimination and shame as a single mother in The Philippines and because of her status as a divorced woman, the Tribunal accepts that divorce is not legal in the Philippines. On this basis, [Applicant 1’s] Australian divorce will not be recognised in the Philippines and as such, the Tribunal does not accept that the applicant will be considered a divorcee in the Philippines or that [the daughters] will be considered ‘children of a divorcee’ as put forward by their representative. However, the Tribunal accepts that [Applicant 1] is likely to be considered a single parent and [the daughters], children of a single parent.

110.   The Tribunal has considered a range of information as outlined above which finds that there are indications that Philippine society is becoming more tolerant and accepting. 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.[34] 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.[35] The Tribunal has not seen more recent evidence that indicated this trend had reversed.

[34] Department of Foreign Affairs and Trade, Filipino Single Mother, 20 November 2002.

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

111.   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.[36]

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

112.   The Tribunal has also considered the country information referred to in the applicant’s written submission regarding violence against women. The Tribunal has also considered other sources of country information as outlined above and including 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…[37]

[37] US Department of State, Philippines – Country Report on Human Rights Practices 2015, 13 April, 2016.

113.   The Tribunal has also considered DFAT’s Country Information Report and notes that the information is consistent with other country information considered.

114.   The Tribunal accepts that country information indicates that some women may suffer serious or significant harm in the Philippines. The Tribunal has noted above that the applicants have family in the Philippines and is satisfied that the applicants would be provided support and protection by their immediate and extended family. The applicants have not claimed that they would be turned away but have essentially claimed that it would place them in difficulties to be expected to support them as they have limited financial means.

115.   The Tribunal has considered the country information and referred to this during the hearing and accepts that [Applicant 1] may face a level of discrimination 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.

116.   However, the Tribunal must consider whether there are substantial grounds for believing that there is a real risk the applicants will suffer significant harm or whether [Applicant 2] and [Applicant 3] have a well-founded fear of being persecuted for these reasons if they return to the Philippines.

117.   While [Applicant 1] stated at the Tribunal hearing that her family had their own expenses, she did not claim that they will not support her and the children or that they would abandon them if they were to return to the Philippines. As outlined in the delegate’s decision record, [Applicant 1] told the Department that her family had asked her to return to the Philippines following her separation from her husband in Australia so that they could care for her. The Tribunal also notes that the applicants have an ongoing relationship with their family in the Philippines and they are in regular contact. On this basis, the Tribunal is satisfied that the applicants will have strong family support in returning to the Philippines.

118.   The Tribunal notes that according to country information the issue of single parents (and separation) is not as serious as it used to be and that societal attitudes are changing, however the Tribunal accepts that the applicants may still experience level of discrimination because of the conservative nature of Philippine society. The Tribunal does not accept that [Applicant 1] will be targeted as a single mother and [Applicant 2] and [Applicant 3] will not be targeted as children of a single mother 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 or significant harm, for any reason discussed above.

Employment prospects and language capability

119.   [Applicant 1] fears that she may have difficulty in finding employment in the Philippines due to her age and gender and that [the daughters] have limited knowledge of the Tagalog language. [Applicant 2] also told the Tribunal that she is not sure whether she will have difficulty in finding employment given she has not completed [a certain grade] in Australia.

120.   The evidence before the Tribunal indicates that [Applicant 1] has completed a [a course] and has held consistent employment in Australia in order to support her daughters, including her daughter in the Philippines. [Applicant 2], while not completing [her] education, has completed past [a grade] and is part way through an apprenticeship. She also told the Tribunal that she was recently communicating with her father in Tagalog on Facebook. The Tribunal acknowledges that [Applicant 3] left the Philippines at a young age and therefore, her language ability in Tagalog is likely not to be at the same level as her sister or her mother as she mostly communicates in English and she is still at school.

121.   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.[38]

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

122.   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. On this basis, together with the educational and employment backgrounds of [Applicant 1] and [Applicant 2], the Tribunal is not satisfied that they will face difficulty in finding employment in the Philippines.

123.   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.[39]

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

124.   In relation to [Applicant 3], the Tribunal is satisfied that she will have ongoing access to education and she would be able to complete her secondary education in the Philippines and would, subject to satisfactory achievement be able to access tertiary education.

125.   Given [Applicant 2] has demonstrated her ability to communicate in the Tagalog language with her father as recently as 2016, the Tribunal is not satisfied that she will experience any form of harm on account of her language ability if she returns to the Philippines. The Tribunal accepts that [Applicant 3’s] language ability in Tagalog may be limited and this may result in a level of discrimination. However, the applicants did not provide any evidence of this claim and it notes that many Filipinos are also fluent in English. As such, the Tribunal does not accept that any discrimination [Applicant 3] may experience would amount to serious or significant harm.

126. Overall the Tribunal does not accept that the treatment claimed by the applicants, namely being looked down on and viewed unfavourably by those in their community for reasons of being a divorced woman, a single mother, children of a single mother, difficulty finding work, or [Applicant 2] or [Applicant 3’s] language ability in Tagalog has the requisite level of seriousness as to amount to serious or significant harm. The Tribunal does not accept that the applicants will be denied access to basic services in the Philippines to the extent that they would be denied the capacity to earn a livelihood or denied the capacity to exist. The Tribunal also does not accept that [Applicant 3] will be denied access to education if she were to return to the Philippines. The Tribunal therefore concludes that the harm feared by the applicants 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.

127.   For the sake of completeness, the Tribunal has also considered the applicants’ claim that they may be targeted as returnees from a western country and may be considered to be wealthy. When given the opportunity to provide evidence of this claim, the applicants’ representative declined to provide any further information. The Tribunal is not aware of any country information to support this claim and as such, does not accept that the applicants will be targeted upon return for being considered as returnees from a western country.

CONCLUSIONS

128. 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

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

Saxon Rice
Member