1510727 (Refugee)

[2018] AATA 928

1510727 (Refugee) [2018] AATA 928 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510727

COUNTRY OF REFERENCE:                  Philippines

MEMBER:Mila Foster

DATE:19 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 March 2018 at 11:19am

CATCHWORDS
Refugee – Protection Visa – Philippines - Fear of violence - Domestic violence – Drug addicted former partner – Applicant did not attend hearing – Lack of evidence of claims

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Philippines, arrived in Australia in December 2010 on a [temporary] visa and has not left since. She applied for the protection visa [in] August 2014 and the delegate refused to grant the visa [in] July 2015.

3. The applicant was represented in relation to the review by a registered migration agent. The same agent assisted her with the protection visa application process.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for protection visa

4. 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.

5. 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).

6. 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.

7. 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’).

8. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such a report in relation to the Philippines on 9 August 2017.

   Claims and evidence presented by the applicant

10. The applicant provided her claims and evidence in her protection visa application, during an interview with the delegate held [in] February 2015, and a psychological assessment dated [in] February 2015. Her protection visa application included certified copies of some pages her expired and current Philippines passports as well as statutory declarations made [in] August 2014 and [February] 2015. The psychological assessment stated that the applicant is highly consumed by her thoughts, desperate to be granted permanent residency in Australia, and provided a diagnostic impression of Generalised Anxiety Disorder.

11. The applicant’s review application included a copy of the delegate’s decision record but no other supporting evidence.

12. On 12 February 2018 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 2 March 2018 and requested that she advise within 7 days of receiving the invitation whether or not she would be taking part in the hearing. At the same time the Tribunal informed her migration agent that a written submission setting all the claims made and maintained by the applicant should be provided by 23 February 2018.

13. On 27 February 2018 the applicant’s migration agent informed the Tribunal orally that the applicant would not attend the hearing because she was suffering from depression. He confirmed this in writing the following day. The Tribunal sought clarification as to whether the applicant did not wish to attend a hearing at all or wished to request that the hearing be rescheduled. On 2 March 2018 the applicant advised the Tribunal, in writing, that she would not be attending the hearing and requested that the Tribunal consider the submissions made in her (protection visa) application to the Department (of Home Affairs). The applicant has thus advised the Tribunal that she does not wish to give oral evidence and has consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

14. Broadly speaking, the applicant is seeking protection so that she does not have to return to the Philippines because she claims to fear being harmed by her husband, being forced to pay him money to support his drug habit, and live a life of poverty and destitution as a result. The applicant claims she was subjected to violence by her husband in the Philippines from about 1991 until 2005 when she left him. [A number of] months after they separated, her husband found her and tried to force his way into her new home. She called the police and he subsequently threatened to kill her and sell their children as sex slaves if she called the police again or tried to hide from him. He also told her that she had to pay him money whenever he asked for it. From 2005 until she left the Philippines in 2010, she regularly gave her husband money because he threatened to kidnap and sell their children to raise the money he needed to pay for his drug addiction.

    Findings

15. I accept on the basis of the applicant’s Philippines passports that she is a citizen of the Philippines.

16. I accept on the basis of the psychological assessment undertaken in February 2015 that the applicant had generalised anxiety at that time. However, the assessment did not indicate the applicant was suffering the disorder to a severe or even moderate degree and the only treatment recommended for management of her condition was counselling. Nor did the assessment indicate that the applicant was so impaired by her condition that she was unable to present her claims and evidence in writing or orally to the Department. Insofar as the assessment was presented as evidence of the factual basis for the applicant’s protection claims (as opposed to merely the applicant’s capacity to present her claims and evidence), I note that the claims were self-reported by the applicant to the psychologist. Thus, while I have had regard to the psychological assessment I have given it no weight in considering the claims and evidence the applicant has provided to the Department.

17. There is no medical evidence before me that the applicant is currently or has more recently been suffering from depression or any other mental illness. I thus do not accept that the applicant’s ability to attend the hearing or participate in the review has been adversely affected by mental illness. 

18. In assessing the applicant’s claims I have given considerable weight to a number of significant issues which undermine her claims.

19. Firstly, the applicant indicated in her protection visa application that she resided at one address in the Philippines from 1998 until December 2010. That however is inconsistent with the claim she made in her first statutory declaration that she left her husband and the matrimonial home in 2005. 

20. Secondly, in the now expired Philippines passport she was issued in 2008,[1] the applicant provided her husband as the person to be notified in case of accident or death. This undermines the claim she made in her first statutory declaration that she left her husband in 2005 because he had been violent towards her for about 14 years, had threatened to kill her and sell their children as sex slaves, and she was forced to regularly give him money after she left him.

    [1] Department file [file number] at f.4, 65.

21. Thirdly, according to the delegate’s decision record, the applicant’s husband had given his permission for their children to travel to Australia with the applicant and the children returned to the Philippines before their [temporary] visas expired. The husband’s willingness to allow the children to leave the Philippines with the applicant and the fact the children returned to the Philippines without the applicant does not appear consistent with the claims the applicant made about her husband in her first statutory declaration – that he was violent and abusive towards her, and had threatened to kill her and sell their children if she tried to hide from him or failed to give him money.

22. Fourthly, the applicant indicated in both statutory declarations that she continued to have contact with her children, who were being cared for by her siblings in the Philippines, and sent money to support them from her earnings in Australia. She told the delegate that she had not however sent any money to her husband. The applicant did not indicate that her children had been harmed by her husband after they returned to the Philippines without her even though she had stopped giving money to her husband. That undermines the applicant’s claim that her husband threatened to sell the children if she did not give him money to pay for drugs.

23. I note that the above issues were raised with the applicant during her interview with the delegate. I have had regard to the responses the applicant gave however they do not overcome my concerns.

24. Further, the applicant told the delegate that she could not relocate within the Philippines to avoid harm from her husband because he could find her using the National Official Survey. The applicant did not detail how her husband could find her using the Survey or why, it seems on the evidence, her husband had not used the survey to find and sell their children since she failed to return to the Philippines and stopped giving him money.

25. Finally, the applicant has not provided information about her circumstances since February 2015. For example, whether she or her children have been contacted, threatened or harmed by her husband. Or why she believes she continues to face a real chance of serious harm or significant harm from her husband if neither she nor her children have been harmed or contacted by her husband.

26. Without the opportunity to obtain oral evidence from the applicant about the above matters and test her claims at a hearing, I do not accept the protection claims she has made. Specifically, I do not accept that the applicant left the Philippines because she was harmed by her husband as she claims. I do not accept that she was subjected to violence by her husband, that she left her husband in 2005 due to the violence, that she made a report to the police because her husband tried to force his way into her home, that her husband subsequently made threats against her and their children, or that she was forced to regularly give money to her husband to finance his drug addiction. I thus do not accept that if the applicant returns to the Philippines she will face any harm from her husband, that she will be forced to give her husband money to support his drug habit, or that she will live a life of poverty and destitution as a result.  

27. Therefore, I am not satisfied on the evidence before me that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, there is a real risk that she will suffer significant harm.

28. As I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason, I am not satisfied that she is a person in respect of whom Australia has protection obligations under the Refugees Convention. Hence, the applicant does not satisfy the criterion set out in s.36(2)(a).

29. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). However, as I am not satisfied that there is a real risk she will suffer significant harm in the Philippines, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

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

    Mila Foster
    Member