1605994 (Refugee)

1605994 (Refugee) [2017] AATA 2141 (27 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605994
COUNTRY OF REFERENCE:                  Philippines
MEMBER:Saxon Rice
DATE:27 October 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 27 October 2017 at 10:48am
CATCHWORDS
Refugee – Protection visa – Philippines – Religion – Catholic – Social group – Domestic Violence victim – Death threats – Post Traumatic Stress Disorder – Remarried in Australia – Inconsistent evidence – No right to enter and reside in any country
LEGISLATION
Migration Act 1958, ss 5(1), 36, 36(2)(a)-(c), 36(2A), 36(2B), 65, 345, 351, 391, 417, 454, 417, 424AA, 438, 499, 501J
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Philippines, applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] April 2016.
The applicant appeared before the Tribunal on 25 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicant was represented in relation to the review by her registered migration agent.
RELEVANT LAW
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.
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).
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.
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’).
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
The applicant’s claims in her application for protection filed [in] March 2014, as summarised in the delegate’s decision record which the applicant provided to the Tribunal, are set out below:
·She left the Philippines to escape a violent and abusive husband.
·She married her husband in the Philippines in October 1990. They had 3 [children].
·After they were married she discovered that her husband was an alcoholic who "chain smoked" was lazy and a gambler. He was unemployed with limited skills and no education. She was the only one supporting the family financially. The applicant remained with him "for the sake of the children".
·The physical abuse became more frequent during the course of their marriage. When he was drunk he forced intimacy on her. If she refused his demands he threatened to kill her.
·She sought assistance, protection and/or a remedy from various authorities following incidents of domestic violence and physical abuse.
·Every time she sought a remedy she was subjected to humiliation by the authorities. The authorities told her that divorce was not legal under Filipino law and that she should return home and fulfil her wifely duties.
·After the birth of her first child she left to live with her parents. She told her parents about the abuse. Her husband joined them at her parents' home promising to be more responsible.
·Her sister offered her employment as a [occupation] in [Country 1]. Her children were left in the custody of her parents. Her husband returned to his parents' home and found employment however he did not provide for his child.
·After a year of working in [Country 1] she returned to the Philippines during a holiday break to seek a formal separation from her husband. Her husband refused and threatened to take their child away.
·She separated from her husband however he continued to threaten her with physical harm and/or threatened to kill her.
·After being married for 21 years in 2012 the applicant separated from her husband with his agreement.
·Given her previous experiences she fears returning to the Philippines because she will be subjected to serious harm and/or death. She will not be provided protection as divorce is not acknowledged under the laws of the Philippines.
·She believes she would come to serious harm because her estranged husband has connections with local law enforcement authorities and his ability to track and know her whereabouts in any region or state in the Philippines she may relocate to.
·She was specifically refused protection in the following incidents:
o1991 – a complaint was not recorded by Barangay officials,
o2000 – police at [ Village 1] police station laughed and told her to go home,
o2006 – at the Philippines National Police Academy she was told officers could not interfere as her husband was their friend and that no serious offence had occurred.
o2011 – Barangay police officers told her they could not interfere as it was a family matter.
o2013 – at the Department of Social Welfare and Development she spoke to a social worker but received not assistance or remedy. Members of the police force and other organisations are subjectively influenced by cultural and religious norms. As a result they hold a reluctance or unwillingness to help her or other women who are victims of spousal violence and rape.
The applicant provided the Department with a copy of her passport, birth certificate, Philippines identity cards, a signed statement dated [December] 2013 and outline of attempts to get protection from Philippines authorities, ‘Marriage Contract’, birth certificates for her three children, hospital medical and discharge certificates dated 2008 and 2013, a copy of a Psychologist Report prepared by [a] Psychiatric Clinic dated [November] 2013, a copy of her Marital Settlement Agreement of Dissolution of Marriage with Dependent or Minor Children (including extract of the Agreement) dated [June] 2012 (translated [October] 2013) and a copy of an Authority to Assume and Retain Care of a Child Agreement for one of the applicant’s children dated [October] 2013. The applicant also provided a number of statements from family and friends and a range of country information in relation to divorce and violence against women in the Philippines.
When lodging the application with the Department, the applicant’s representative also submitted that the applicant is a member of the following particular social groups:
·Abused women in the Philippines; and
·Married abused women in the Philippines; and
·Separated women in the Philippines.
The applicant attended an interview with the Department [in] October 2014. During that interview, she reiterated and expanded on her written claims including the following relevant information as outlined in the delegate’s decision record:
·The applicant confirmed her current address and that she is currently living with her partner. She stated she was not employment and was currently studying.
·The applicant feared for her life on a daily basis for 21 years. She claimed that her husband is still waiting for her to return to the Philippines. She claims that the last words her husband spoke to her was that if he could not win her back he will kill her.
·She claimed that her oldest child had told her that her former husband was asking when she would return. However, her children do not have her address in Australia so they are unable to tell him.
·She claims he only agreed to their separation to prove it was "just a piece of paper". He believes they are still married and he can do what he likes to her.
·The applicant was asked if she had ever been hospitalised as a result of her husband's violence and she claimed that she [was hospitalised] in 2008. Her injuries were mostly bruises and wounds so she never went to a hospital or clinic as a result of the beatings.
·The applicant was asked how many times she reported her husband to the police and she referred me to the "chronology of events" included in her written statement. She claimed to have approached the Department of Social Welfare and Development in [Village 1] but she was told that without any evidence of domestic violence they were unable to help her.
·It was put to the applicant that the legal separation documents she included in her application indicated that her husband agreed to the separation and child custody arrangements. The applicant said she sought advice from a public lawyer about getting an annulment but she was advised that a legal separation would not be useful in that regard. The applicant did not disclose to the lawyer that she was a victim of domestic violence.
·[In] June 2012 she filed the legal separation papers with the law office. She and her former husband signed them in front of a witness and then went to their separate homes. He was living in Cabyao, Laguna and she was living in [Village 1], Laguna at the time. The applicant added that she obtained the separation documents to take to the police to get protection from her former husband.
·The applicant was asked why she had obtained a psychologist report dated [November] 2013. In response she stated that it was so she could get an annulment.
·She claims that she thinks she last saw her husband in September 2013 when he came to her house. She claims he assaulted her and she sought medical attention.
·She was asked about her new relationship and she stated that it began in August 2012. She met her current partner on the Internet through her brother. She talked to her current partner about what was going on in her life and he was very supportive. They are planning to marry if possible.
At her interview with the Department, the applicant provided a further submission dated [October] 2014 which reiterated her claims and provided information on the annulment process. In the submission she commented on:
·Police corruption and bribery.
·Police use of discretion in law enforcement.
·Police trivialisation of marital rape and battering and victim blaming.
·Police view domestic violence as a family matter.
·The Department of Social Welfare and Development treated women with hostility and contempt. They have no clear and effective procedures in handling crimes against women.
·She relocated a couple of times with her children and changed her mobile number but her former husband found them. He gained access to her children. He issued death threats.
·Her former husband has close and powerful friends in positions of authority in various areas.
·She has made a life in Australia and is studying a [Diploma] ,
·Her current partner provides emotional support and look forward to marrying.
[In] October 2017, the applicant’s representative restated that the applicant is a member of the above particular social groups and submitted that:
1.    The applicant's former husband has in the past and will continue to perpetrate acts of abuse and violence on her in the event she returns to the Philippines.
2.    The acts of persecution are not perpetrated because of conventions reasons but because of cultural and religious norms that have continued to allow male married partners to engage in abusive conduct on their female married partners.
3.    The Philippines have laws against spousal abuse and the manpower and capacity to enforce these laws. However, they are not effectively enforced and essentially do not protect the applicant or members of the applicant's particular social group because the country fails to seek retribution for women complaining about spousal abuse and violence. The authorities tolerate and ignore spousal abuse.
4.    Filipino law discriminates against the applicant where being a Catholic married woman is prohibited from obtaining a divorce and yet Muslim Filipino women are able to dissolve their marriage and remarry under domestic law.
5.    Filipino law presents a barrier to annulment in that it is costly and legally complex.
[In] April 2016, the delegate made a decision that the applicant is not a person in respect of whom Australia has protection obligations and refused her application for a Protection Visa.
Prior to the Tribunal hearing on 25 September 2017, the applicant’s representative provided a submission dated 20 September 2017. In that submission, the applicant’s representative reiterated the applicant’s claims (including further country information in relation to divorce and domestic violence in the Philippines) and also requested that the Tribunal, in the event that the applicant’s review is not successful, consider recommending the matter for Ministerial Intervention pursuant to s.417 of the Act given her relationship with an Australian citizen and the health issues of the applicant’s spouse that would be deemed compelling.
The Tribunal notes that the applicant’s departmental file includes a certificate and notification regarding the disclosure of certain information under s. 438 of the Migration Act 1958. The reason given for why disclosure of the information subject to the certificate would be contrary to the public interest is that the folios contain information relating to ‘an internal working document and business affairs’. The folios concerned contain purely administrative material including the Department’s application validity checklists and application and identification test details.
The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason has not been identified for the relevant folios, finds the certificate invalid. In any event, the relevant folios have not been considered relevant to this review because they are purely administrative. The Tribunal advised the applicant of the existence of the certificate and provided her with a copy at the Tribunal hearing. The Tribunal also advised the applicant of its finding to be invalid.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that she is a Philippines national. Philippines is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.
There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.
Tribunal hearing
At the Tribunal hearing, the Tribunal asked the applicant about her background, her family, her education, her employment, where she lived in the Philippines, her reasons for leaving the Philippines, her activities in Australia and why she feared returning to the Philippines.
In Australia, the applicant told the Tribunal that she was working as a [occupation]. She moved to [Town 1 in Australia] in November 2015 and her Australian citizen husband continues to live in [Australian City 1]. The applicant said she moved to [Town 1] because there was an issue with neighbourhood aggression and she was depressed because of the trauma so she moved to [Town 1] where she has family support and the Filipino community is strong and while she travels backwards and forwards to [Australian City 1], they hope her husband will be able to change his housing arrangements to [Town 1].
In the Philippines, the applicant told the Tribunal that, she lived with her parents in [Village 1], Laguna until she was married in 1990. She said her parents still live in the family home. The applicant has one brother living in [Country 2], a sister living in [Country 1], one brother lives with her parents and two other brothers live near her parents in the Philippines. The applicant talks to her parents fortnightly to monthly.
The applicant told the Tribunal that when she married her former husband, they lived with his family for a couple of years until after her eldest child was born. The applicant then worked in [Country 1] for approximately one year and then they moved in with the applicant’s parents for a number of years until she and her husband had built their own house in the same compound as her [parents]. After the couple separated in 2012, the applicant moved to an apartment in a Barangay nearby.
The applicant told the Tribunal that all three of her children were currently living with her parents (assisted by her best friend helping her parents care for the children) because the house she and her former husband had was too damaged by termites. The applicant talks to her children weekly or fortnightly.
The applicant told the Tribunal that she is not aware of exactly where her former husband lives although she is aware that he lives in his hometown of Cabuyao, approximately [distance] drive from her parents. The applicant said that her former husband moved to Cabuyao when she “sent him away” and they separated in April 2012. The applicant was not sure when her children last saw her former husband. The applicant thought it might have been when one of her daughters “bumped into him” around November 2016 when he was in the same area visiting his friends.

The applicant said that her former husband told their daughter that he was still angry with the applicant and he asked her when the applicant would be coming home because he will kill her and he said he did not care if he was jailed. The applicant told the Tribunal that she was not aware of any threats her former husband had made towards their children but she said she had told her children to avoid their father. The applicant said her former husband “uses” the children because he is sure that she will have to return to the Philippines to see them. The Tribunal asked the applicant how often her children bumped into their father since she has been in Australia. The applicant said they did not bump into him very often but the applicant told the Tribunal that her former husband would also visit their neighbours and ask about her.
The Tribunal asked the applicant about the circumstances and her intention in travelling to Australia. The applicant said she came to Australia for recreational activity as her and her (now) husband were just friends when she first arrived. The applicant said her husband invited her to come to Australia in October 2013. She said that at the time, she was also asking her sister if she could find her a job as a [occupation] in [Country 1].
The applicant also told the Tribunal that a friend was talking to her about lodging an annulment and she spoke to a lawyer so the statements from friends and neighbours that she included in her protection visa application were for the purposes of an annulment but then her lawyer said that domestic violence was not a ground for annulment and the annulment process was expensive. The applicant said she spoke to a lawyer twice around October and November 2013 because she hoped to lodge the annulment before she travelled to Australia.
The applicant told the Tribunal that the separation agreement she had with her former husband was just an agreement between them. It was not a legal separation from a court. The applicant said she made this agreement between her and her former husband because she thought she could use it as protection from him but it is not a legal separation, it is just an agreement notarised by a lawyer.
The Tribunal asked the applicant how she thought she could use this agreement for protection from her former husband. The applicant said she was not sure if it was acceptable in Australia but she was obliged to prove that she tried to do something about the situation in the Philippines. The Tribunal asked the applicant how she thought this agreement would protect her and whom she was trying to ‘prove’ something to. The applicant said that it was for no particular purpose but she thought she needed the separation agreement because it might help her protect herself in case something happened. She said they decided to separate in April 2012 and she didn’t know what was happening or what to do so she decided to have the agreement. The applicant said her former husband decided to sign the agreement because he still thinks they are husband and wife and he can still have control over her.
The Tribunal asked the applicant when she decided she wanted to stay in Australia. The applicant said that when her former husband found out she had left the country, he was angry and devastated and the children and friends told her that if she goes back he will kill her so she was afraid. The Tribunal asked the applicant again when she decided she wanted to stay in Australia. The applicant said she decided she wanted to stay after one month because then the friendship had developed into a different kind of relationship.
The Tribunal noted that the applicant arrived in Australia [in] December 2013 and she applied for her protection visa [in] March 2014 and asked the applicant why there was a delay in her application for protection of two months if she decided she wanted to stay in Australia after one month. The applicant said she was trying to figure out what to do and how to do it. The Tribunal asked the applicant if she got legal advice or talked to the Department about her options. The applicant said, no but she spoke to her representative after she was referred by a counsellor.
The Tribunal asked the applicant why she applied for protection. The applicant said that at the time, she could not apply for any other visa so she used the opportunity because she believed she was a victim of domestic violence in the Philippines and because she had some documents that she could use. The applicant also said that if she goes back to the Philippines, then her life is at risk and her former husband will kill her.
The Tribunal asked the applicant if her former husband harmed their children. The applicant said he beat and slapped their son. She then said that he did not harm them physically but threatened them and used them to control her by going to their school and talking to them and asking about her whereabouts. The applicant told the Tribunal that she last saw her husband sometime around mid-2013 when the she was home alone and she was hiding inside a cabinet but her former husband didn’t find her. She said she cannot recall the last time she saw her former husband but there was an incident when she was hospitalised with high blood pressure. The Tribunal asked the applicant if she was referring to her hospitalisation in 2008. The applicant said she thought it was in January 2013 but she cannot recall another incident but he was harassing her.
The applicant told the Tribunal that she told her children to try to avoid their father but if they saw him accidentally, he would ask about her and they are traumatised.
The Tribunal discussed with the applicant the times she claims she sought help in the Philippines. In 2006, the applicant claims she spoke to a neighbour who was also a police officer about her husband. The Tribunal noted that the applicant had also stated that this neighbour was a friend of her former husband and asked why she spoke to this person when she knew he was a friend of her then husband. The applicant said that she spoke to him because he was also a friend of hers and thought he could help.
In 2013, the applicant told the Tribunal that she went to the Department of Social Welfare and Development to ask for protection but she claims they asked her for any records or evidence such as a police report as they can only assist her with evidence. The Tribunal asked why the applicant decided to go to the Department at that time. The applicant said that it was because she was already separated but thought they could help so he didn’t keep bothering her.The applicant said that in the Philippines, domestic violence is not reported very much and it is normal for husbands and wives.
The applicant also told the Tribunal that she sought help from a local doctor in 2013 and he told her to seek help from a psychologist and diagnosed her with Post Traumatic Stress Disorder (PTSD) and referred her to [Dr A] because counselling was not available in her area. The applicant said she asked the Department of Social Welfare and Development about counselling and she was told it was only available for children because it was a volunteer counsellor who was not paid.
The applicant told the Tribunal that she went to her local doctor in late October 2013. The Tribunal noted that the documents the applicant had provided indicated that she saw her local doctor on [date] October 2013 and saw [Dr A] the same day on [date] October and then again on [date] October 2013. The Tribunal asked the applicant how [Dr A] was able to diagnose her in two visits and why the applicant did not continue to see him past [date] October 2013. The applicant said that [Dr A] did some tests and asked her some questions and provided her with sleeping tablets for the depression. She said she did not continue to see [Dr A] because it cost [amount] Pesos and she could not afford to see him on a regular basis so he gave her certification to enable her to get counselling.
The Tribunal noted that the applicant claimed that she relocated a number of times and asked her about this. The applicant’s response was vague and confusing and she said she only actually moved once to an apartment after they had separated and other than that, she had stayed with friends for a couple of weeks at a time during 2012 and 2013. The Tribunal noted that it might be likely that the applicant’s former husband knows where his children are living with her parents and asked the applicant why her former husband did not appear to be bothering their children. The applicant said that he is not interested in them. The Tribunal noted that the applicant had earlier said that her former husband was using their children to get to her. The applicant said she did not know why he was not using the opportunity but she believes he is using the children because he thinks she will go back to them. She said she told her children to go to the Barangay or the police if their father harassed them physically. The Tribunal asked the applicant why she thought the Barangay or the police would protect the children but not her. The applicant said that in the Philippines, they protect the children even if it is from their own parents.
The Tribunal noted that the applicant had described her former husband as very abusive and controlling but that she had said she asked her former husband to leave and they separated in April 2012. The applicant said that this was because her then husband saw that she was determined to live separately and he was trying to be nice so that she might continue to live with him again. She said he was still trying to convince her that they can live together and he would give her space. The applicant told the Tribunal that a friend suggested he agreed to this because the applicant was supporting him financially so he wouldn’t kill her. The applicant said her former husband only got really angry after she left the country and she got married in Australia.
The Tribunal asked the applicant about the separation document she provided and noted that the applicant had said that her former husband signed the document to please her. The applicant said they had only been separated for a few months. The Tribunal asked the applicant why she included in the document that her former husband would have custody of her son in circumstances where she went overseas. The applicant said that her son was [age] years old and can choose whether he wanted to stay with his father and she did not think her son would choose to do that. The Tribunal also asked the applicant why she signed the Carer Agreement regarding her youngest [child] in October 2013. The applicant said that it was because she was considering going to [Country 1] to work.
The Tribunal noted that the applicant had provided a number of statements from family and friends who claim to have been witness to the abuse and asked the applicant if any of those people provided her with assistance or made any reports to the police at the time. The applicant said that there were no reports to the police as they wouldn’t bother to interfere in a family matter and they were threatened by her former husband.
The Tribunal noted that the applicant had provided copies of a police certificate and a certificate issued by the NSI with her application for protection and particularly that the certificate from the NSI was dated September 2013 with the reason for issuing being “travel to Australia”. The Tribunal noted that the applicant had said that she was not invited to travel to Australia until October 2013 and that her Carer Agreement was signed in October 2013 and asked the applicant if she could explain this timeline. The applicant said that she was intending to travel to [Country 1]. The Tribunal noted that the certificate from the NSI stated that it was for travel to Australia.
The applicant said that she met her current husband in 2012 and they had talked about her travelling to Australia and the NSI certificate was required for her visitor visa and it can sometimes take a few months for documents but when she lodged her visitor visa application in November she had all the documentation. The applicant said that her and her husband, [Mr B], had talked about Australia because she mentioned she was considering going to work in [Country 1]. She said the real plan was to go and work in [Country 1] but when he invited her to Australia, she lodged the visitor visa application and she needed all the documents so she lodged her application for the NSI certificate in September to make sure she had it in time. The applicant also said that [Mr B]’s formal invitation may have been in September. The applicant said she only intended to stay for one month and she had a return ticket due to her work [in another country]. The applicant said it all changed when her former husband found out she left the country and she said he went “beserk” and made threats so she got scared.
The Tribunal discussed country information with the applicant in relation to the resources available to assist victims of domestic violence in the Philippines and in relation to state protection and asked the applicant why those services and protection would not assist her in her circumstances. The applicant said that it was a long process and she had no evidence, only the statements of neighbours. The applicant said that domestic violence is still an issue and not well reported and if someone does report domestic violence, it is a long process to be able to get a protection order. The applicant said she was trying to obtain a Barangay Protection Order (BPO) but she did not have evidence and was told that it was impossible to be able to obtain. The applicant said that domestic violence is under-reported in the Philippines and if she goes back and her former husband finds out, the applicant asked how the government could guarantee she would not be killed before she could do this (get a protection order).
The Tribunal noted that the applicant had provided a lot of documents that she claimed was evidence of the domestic violence and asked why she didn’t think she could use that as evidence in the Philippines. The applicant said that it was not the evidence that was required and she needed police reports. The applicant said that the country information is not the reality. The Tribunal noted that the applicant had told the Tribunal she had told her children to go to the police and the Barangay to avail themselves of protection from their father. The applicant said that the police are not properly trained.
The Tribunal noted that the applicant’s description of her former husband and what she fears if she returns to the Philippines appears to be inconsistent with his actual behaviour before she left the Philippines given that they had separated for some time at her request before their separation agreement; her former husband appeared willing to sign a document for “legal separation” that was not an official legal or court separation; the applicant was willing to allow her son to live with her former husband in the event that she travelled overseas; and her former husband was willing to allow a carer to look after their youngest child in the event the applicant travelled overseas which was signed in October 2013. The Tribunal invited the applicant to comment and she stated that her former husband has a high ego. She said he agreed to sign the documents to prove to her that even if he signs, he can still have control over her. The applicant said that friends asked him if he was willing to sign the documents and he was arrogant to prove that he has control.
The Tribunal raised its concern about the marriage settlement agreement and noted that it claimed to be prepared by and following advice from solicitors in the Philippines but in the context of Philippines law it has no value; and that it set out at point 8 that in the event that the mother relocates outside the country of residence for the primary purpose of enhancing her general quality of life, then custody will be shared and the youngest child [will] be in the custody of her Carer, [Ms C] and that the applicant’s son would reside with his father. The Tribunal invited the applicant to comment.
The applicant said that her former husband requested the custody of her son. The Tribunal reminded the applicant that her former husband having custody of her son was only in the circumstances of her going overseas and asked the applicant if her former husband requested custody of their son in those circumstances. The applicant said that she agreed to it because she knew her son would not do it and she cannot answer to what was in her former husband’s mind. The applicant said that when they separated, she decided to go and see a lawyer and ask for the agreement because she wanted to have something that she hoped would be useful in the future if something happened. Although it is not a legal separation, the applicant said that at the time, it was something for her to hold onto because she was traumatised. She said it was so hard to prove all this so it was something to hold onto and it was her decision to do the agreement because she was determined to leave him.
The Tribunal asked the applicant about the medical evidence she claims substantiates her claim of domestic violence and noted that none of the medical certificates or information mentions treatment for any physical injuries; one certificate is issued in November 2013 for a four day period of hospitalisation in 2008; that [Dr A] diagnosed the applicant with PTSD in two appointments; and the psychological report included a self-assessment and report on her former husband in the absence of any assessment of him. The Tribunal invited the applicant to comment.
The applicant said that when she asked for the medical certificates they just say that she was confined during certain dates but they don’t give a full description unless the court orders the release of the records. The applicant said she did not mention to any of her doctors about the domestic violence and that the documents were not intended for applying for a protection visa. The Tribunal asked the applicant why she was obtaining the documents in October and November 2013 when she was intending on coming to Australia. The applicant said she only intended on coming to Australia for one month and she wanted to file for an annulment when she got back to the Philippines.
The Tribunal asked the applicant why she had a number of statements from family and friends regarding the abuse but that none assisted her to do anything about it or go to the police. The applicant said that they were willing to assist her in court but she was not sure that it would be enough to obtain protection in the Philippines. The Tribunal asked the applicant why they didn’t help her at the time. The applicant said that one time, when she had bruises, ‘they’ did not make a report so even if they were willing to testify, if there is no report then it will not be valid. The applicant said she needed a report from the Barangay first.
The Tribunal noted the applicant’s attempts to obtain protection, including that there was a relatively small number over a twenty-one year period; there was no substantiation that any of these attempts were made; her attempts do not appear to accord with country information and she did not avail herself of measures within the system such as protection orders or women’s specialist units at hospitals; family and friends did not appear to assist her to obtain protection; none of the attempts to obtain protection appear to correspond with the times she claims to have been hospitalised; and while she did not think it was worthwhile to go to the police, she had told her children to go to the police or the Barangay for protection. The applicant said that she always gave up when they said that it was a family matter so she felt hopeless. The applicant said that similar women have had similar problems but it was different for children.

In accordance with s.424AA procedure, the Tribunal advised the applicant that there were a number of inconsistencies between her evidence to the Tribunal and her evidence during her interview with the Department. In particular, the Tribunal noted that the applicant told the Department that she agreed for her former husband to have custody of her son but that after the agreement was signed, her son did not go to live with his father. The Tribunal noted that the clause in the separation agreement related to her son living with his father in the event that she travelled overseas and the agreement was not one that meant her former husband had custody of her son from the signing of the agreement. The Tribunal noted that inconsistencies in evidence can cause the Tribunal to doubt the credibility of the claims being made. The Tribunal advised the applicant that she could seek additional time to respond to the information and the applicant requested and was granted an adjournment to talk to her representative. Following the adjournment, the applicant and her representative requested additional time following the Tribunal hearing to respond to the information. The applicant’s representative requested additional time until Friday 29 September and the Tribunal agreed.
The applicant also told the Tribunal that she felt the departmental process was unfair and she felt intimidated by the interviewing officer so she did not know how she answered some questions. The applicant said she was concerned because the interviewing officer asked her about the veracity of some of her documents and she could not answer some of the questions properly because she felt the interview was biased.
The Tribunal also notes that the applicant provided it with a copy of screenshots of a conversation with her daughter on a messenger app from November 2016. The language of the conversation was Tagalog and her representative told the Tribunal that he had not had time to obtain an English translation. The applicant told the Tribunal that the message from her daughter related to the threat her former husband made to kill her when her daughter bumped into him last year. A translation of this message was provided to the Tribunal following the hearing.
The Tribunal asked the applicant if there was anything else she wanted to make it aware of. The applicant said that her husband was sick and she asked the Tribunal to consider letting her stay longer to help her husband because he helped her recover and she feels she owes him a duty to look after him. The applicant also said that she is very concerned that if she goes back to the Philippines, she wants to be with her children but she is concerned she will be harmed by her ex-husband if he finds out she is back. The applicant said that she regards Australia as her second home but if she goes back, she will have to face the same thing and she will be killed. She said there is nothing more she can provide in terms of evidence because it is hard to gather in the Philippines so she has to rely on what she has.
The Tribunal invited the applicant’s representative to make a submission. The representative told the Tribunal that the key issues were the applicant’s claims and the environment that she came from. The applicant also told the Tribunal that more generally in the Philippines, there is a war on drugs so there is nothing about domestic violence in the news, only drugs and corruption.
Following the Tribunal hearing, the applicant provided a statement from a friend in the Philippines who she had indicated would provide oral evidence at the Tribunal hearing but at the time the Tribunal sought to contact the witness, the applicant said she would be at work. [In] October 2017, a signed statement dated [October] 2017 was provided by [Ms D]. [Ms D], stated that she lived with the applicant and her family for a period (not specified) and witnessed how the applicant’s former husband treated her and stated that he was “abusive towards her” and he “was going out with friends and got drunk every single day, gambling, and refused to undertake any work to support the household”. [Ms D] also stated that she convinced the applicant to go to the authorities when her husband burnt his clothes and threatened to burn the house down.
The applicant’s representative also provided a post-hearing submission dated 27 September 2017 addressing a number of concerns raised by the Tribunal throughout the Tribunal hearing including in relation to the applicant’s reason for travelling to Australia; credibility of medical evidence submitted; and credibility and consistency of the applicant’s evidence to the Tribunal and the Department.
Assessment
The issues in this review are whether the applicant has a well-founded fear of being persecuted as defined in Article 1 of the Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of the Philippines, there is a real risk she will suffer significant harm.
The applicant gave evidence to the Tribunal that her application for protection was prepared by her representative on her instruction and the details of her application were true and correct. She stated that she is satisfied that her visa application is accurate and complete. She stated that she has not lodged any documents with the Department or that Tribunal that are false or misleading or incomplete and she has not had and changes in her circumstances regarding her claims since making her protection visa application.
During the hearing, the Tribunal discussed with the applicant her background, her family, her education, her employment, where she lived in the Philippines, her reasons for leaving the Philippines, her activities in Australia and why she fears returning to the Philippines. The Tribunal found aspects of her evidence to be inconsistent, lacking in detail and credibility, unconvincing and inconsistent with independent country information. The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm if she returns to the Philippines in the reasonably foreseeable future for the reasons that follow.
The Tribunal accepts that the incidence of domestic violence in the Philippines is high. However, the Tribunal is not satisfied that the applicant has been a victim of domestic violence in the past or that she faces a real chance of suffering serious or significant harm in the reasonably foreseeable future due to any past relationship if she returns to the Philippines.
The Tribunal is of the view that overall, the applicant’s evidence regarding her husband and their relationship is contradictory and inconsistent. For example, the applicant claims that she was in a relationship with her former husband in the Philippines for approximately twenty-one years, they had three children and during that time, he was constantly violent, abusive and very controlling. The applicant claims that she was hopsitalised on a number of occasions due to the violence of her former husband and attempted (without success) to make reports about her husband’s behaviour and seek protection on a number of occasions.
However, the applicant’s evidence to the Tribunal is also that she never mentioned the domestic violence she was experiencing to any of her doctors (until October 2013 when she claims she was referred to a psychologist); friends and family were aware of the situation and the violence but did not assist her by providing protection or helping her obtain protection from the authorities; she asked her husband to leave in April 2012 and he went to live with his family in Cabuyao; she asked her husband to sign a “separation agreement” (that does not constitute a legal separation in the Philippines) in June 2012 that included custody arrangements for their children in the event that the applicant travels overseas and he agreed; and she began an online relationship with an Australian citizen in August 2012 which resulted in her travel to Australia in December 2013 (and to whom she is now married in Australia).
The applicant’s explanation for these apparent contradictions and inconsistencies was that her former husband has a high ego and that he agreed to sign the documents to prove to her that even if he signs, he can still have control over her. However, the applicant told the Tribunal that some of these arrangements were effectively put into place when she came to Australia and that her youngest child lived with her carer, [Ms C] (although she now lives with her grandparents with the assistance of a friend). The Tribunal also notes that the applicant claimed that her husband saw that she was trying to live separately and he separated to be nice and give her space so that she would continue to live with him. Again, this explanation appears to contradict the applicant’s claim that her husband signed a separation agreement to prove that he will still have control over her.
Similarly, when the Tribunal raised concerns about the detail of the marriage settlement agreement, including that the applicant claimed that it was prepared by and following advice from solicitors in the Philippines but in the context of Philippines law it has no value; and that it sets out at point 8 that in the event that the mother relocates outside the country of residence for the primary purpose of enhancing her general quality of life, then custody will be shared and the youngest child [will] be in the custody of her Carer, [Ms C] and that the applicant’s son would reside with his father, the applicant provided further contradictory evidence that on the one hand, her former husband requested custody of her son and that she agreed to it because she knew her son would not do it. Based on the applicant’s claim regarding her former husband’s control and ego, it appears contradictory to the Tribunal that he would request custody of his son in circumstances that involve the applicant relocating overseas. The Tribunal also finds the applicant’s evidence implausible that everything changed when her former husband found out she left the country and she said he went “beserk” given they had explicitly made arrangements in the event the applicant relocates overseas.
When the Tribunal raised its concern regarding another inconsistency in the applicant’s evidence relating to her explanation of the custody arrangements within the Marriage Settlement Agreement during her departmental interview (that her son was to live with her husband following the signing of the agreement) compared to what she had told the Tribunal (that the arrangements if she relocated overseas were on the basis that she knew her son would not do it), the applicant sought additional time to respond in writing. In response to the Tribunal’s concern, the applicant’s representative submitted as follows on 27 September 2017:
We note that the Tribunal considers evidence provided by the applicant during her Departmental interview and before the Tribunal may have varied to some degree, resulting in inconsistencies in [the applicant]’s claims. Details raised by the Tribunal concern [the applicant]’s son and the custody of this child with his father, the former spouse.
We are instructed that such a traumatic experience as domestic violence, coupled with the harrowing need to relive such eventualities on no less than two (2) occasions have impacted upon the review applicant’s ability to coherently articulate details in regards to her claims. As per the hearing record, [the applicant] was confident in leaving her [age] year old child with her former spouse, despite her experiences, as she was aware her child would A) be able to fend for himself and B) he would not remain the care / household of his father given his age.
Further, we are instructed by [the applicant] that she and her former spouse were, then, still married and hence the presumption of equal shared parental responsibility remained in force. We are instructed that the review applicant made genuine efforts to resolve the dispute through mediation with her former spouse in regards to the best interests of their children.
The Tribunal has had regard to the applicant’s claim (reiterated by her representative) that she felt she was treated unfairly and intimidated during her departmental interview and claims that the applicant’s evidence has varied due to her ‘traumatic experience’. However, the Tribunal finds that all of the explanations provided by the applicant contradict the information set out in the “Marriage Settlement Agreement” she provided with her protection visa application. The English translation of the agreement states that the applicant has full custody of the children and the father shall have “reasonable access”. The agreement also states as follows:
8. in the event Mother is relocating outside the country of residence for the primary purpose of enhancing her general quality of life, we agree to share physical custody of our children as follows:
(I) [Child 1] – currently in a relationship, willingly lives separately and apart from both parents, is capable of supporting herself and can – competently – manager her own financial affairs;
(II) [Child 2] – in the trusted person’s custody, and all rights and responsibilities regarding adequate food, daily needs, nurturing, medical care and other decisions, belongs to this legal guardian – [Ms C](born [date]) …
(III) [Child 3] – living in the custody of his father is essential for the child’s adjustment: [His father] has the legal authority to make major decisions on [his] behalf [and] is fully responsible of his child welfare and well-being.
As outlined above, the “Marriage Settlement Agreement” only refers to ‘shared custody’ of the children in the event that the applicant relocates “outside the country of residence for the primary purpose of enhancing her general quality of life”. The Tribunal again notes that the applicant’s explanations for why these arrangements were included in this agreement was because “her former husband requested custody of her son and that she agreed to it because she knew her son would not do it“.
In addition, the applicant told the Tribunal that after she asked her husband to leave, she decided to go and see a lawyer and ask for the agreement because she wanted to have something that she hoped would be useful in the future “if something happened”. Although it is not a legal separation, the applicant said that at the time, it was something for her to hold onto because she was traumatised. The applicant said on a number of occasions that she wanted the agreement for future protection. However, the applicant never used or attempted to use the agreement for that purpose. Instead, the applicant told the Tribunal that she gathered a range of other ‘evidence’ such as her medical reports and obtained statements from a range of family and friends in October and November 2013 in order to support the lodging of an annulment. The applicant then told the Tribunal that domestic violence was not a ground for annulment, which suggests that all the material was prepared for no purpose.
Similarly, the Tribunal raised its concern about the ‘medical evidence’ the applicant claims substantiates her claim of domestic violence and noted that none of the medical certificates or information mentions treatment for any physical injuries; one certificate is issued in November 2013 for a four day period of hospitalisation in 2008; that [Dr A] appears to have diagnosed the applicant with PTSD in two appointments; and the psychological report included an assessment of her former husband as suffering from a “personality disorder, antisocial type with underlying intermittent explosive personality traits with aggressive features” in the absence of any actual assessment of him. The applicant also told the Tribunal that she visited her local doctor once in October 2013 and he diagnosed her with PTSD and referred her to [Dr A].
The Tribunal notes that following the Tribunal hearing, the applicant’s representative submitted as follows:
We note that the psychologist report – regardless of how the Tribunal interprets comments made in relation to the former-spouse – articulates that the review applicant is a victim of domestic violence and suffers from Post-Traumatic-Stress-Disorder. Clearly, the Tribunal would agree, a psychologist would not make such findings and comments were this assessment not grounded and reasonable.
Although the Tribunal has the capability of accepting or dismissing evidence where such actions are warranted, we note that the Tribunal does not purport to be a healthcare professional and, as such, it would be prudent for the Tribunal to accept the contents of a psychologist report, composed by a government-licensed psychologist in the Philippines, in relation to this matter as reliable. With this in mind, we ask that the Tribunal place appropriate weight on the psychologist report.
The Tribunal notes that the applicant said that when she asked for the medical certificates they would just say that she was confined during certain dates but they don’t give a full description unless the court orders the release of the records. However, the applicant also told the Tribunal that she did not mention to any of her doctors about the domestic violence. In any case, the Tribunal also notes that none of the information provided by the applicant refers to any physical injuries suffered by the applicant the Tribunal is not satisfied that any of this evidence substantiates the applicant’s claims regarding her former husband.
While the Tribunal does not purport to be a medical expert, the fact that the psychologist report makes a ‘diagnosis’ of the applicant’s former husband in the absence of any actual assessment of him, causes the Tribunal to have significant doubts about the veracity of this report and it accords it appropriate weight. Similarly, the applicant’s evidence that her local doctor diagnosed her with PTSD in one visit before referring her to other doctors also causes the Tribunal to doubt the veracity of both the applicant’s claims and the medical assessments.
In relation to the applicant’s claims regarding her attempts to obtain protection, the Tribunal finds these contradictory and inconsistent with independent country information.
The Tribunal discussed with the applicant her attempts to obtain protection and noted that there was a relatively small number over a twenty-one year period; there was no substantiation that any of these attempts were made; her attempts do not appear to accord with country information and she did not avail herself of measures within the system such as protection orders or women’s specialist units at hospitals; family and friends did not appear to assist her to obtain protection; none of the attempts to obtain protection appear to correspond with the times she claims to have been hospitalised. The Tribunal also noted that while the applicant did not think it was worthwhile to go to the police, she had told her children to go to the police or the Barangay for protection.
The Tribunal discussed country information with the applicant in relation to the resources available to assist victims of domestic violence in the Philippines and state protection, including:
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.
While country information indicates that domestic violence remains a problem in the Philippines, 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.
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.[1]
[1] US Department of State, Country Report on Human Rights Practices for 2014 – Philippines, 25 June 2015, section 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,[2] it was stated that:
[2] UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: Philippines, UNHCR Refworld, 9 July 2012.
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.
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.[3]
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.
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. If after due notice and hearing, the court is convinced of your friend's application, it will issue a permanent protection order for her.
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.[4]
[3] Country of Origin Information Service Section, State Protection – Solo Parent, 8 December 2015.
[4] Country of Origin Information Service Section, Domestic Violence – State Protection – Corruption, 20 October 2015.

While the Tribunal notes the applicant’s evidence that the country information is not the reality, in light of the country information outlined above, the Tribunal finds the applicant’s claims regarding her attempts to obtain protection to be inconsistent with the available protection orders and/or ability to avail herself of one of the women and children's unit within the PNP that have 1,833 desks throughout the country to deal with abuse cases.
The Tribunal has had regard to the statements provided in support of the applicant by family and friends. The Tribunal notes that the applicant told the Tribunal that none of these family members or friends assisted her to obtain protection on the basis that they were threatened by her former husband. The Tribunal also notes that the applicant said that her family and friends were willing to assist her in court but she was not sure that it would be enough to obtain protection in the Philippines. The applicant also suggested that because she did not have a report from a Barangay, none of these statements would be valid.
However, the Tribunal finds it inherently contradictory that the applicant’s family and friends would not assist her to obtain protection at the time she claims she needed it because they were being threatened by her former husband but that they would provide written statements for use in court proceedings that would not assist the applicant to actually obtain protection. For this reason, the Tribunal places little weight on these statements.
The Tribunal has had regard to the applicant’s explanation that she always gave up when she was told that it was a family matter so she felt hopeless. However, when considered together with the Tribunal’s other concerns, the Tribunal does not accept this reason explains why the applicant has no substantiation of any of her attempts to obtain protection; that she did not avail herself of measures within the system such as protection orders or women’s specialist units at hospitals; that her family and friends did not appear to assist her; and that none of her attempts to obtain protection appear to correspond with the times she claims to have been hospitalised.
In addition, the Tribunal does not accept that the applicant would tell her children to go to the Barangay or the police if they felt threatened by their father or if he was violent toward them but that, in line with country information outlined above, the applicant could not follow this same process. In light of the country information outlined above, the Tribunal does not accept the applicant’s explanation that similar women have had similar problems but it was different for children.
The Tribunal has also had regard to the messages between the applicant and her daughter in which the applicant’s daughter states that her father has threatened her mother. In light of the overall concerns of the Tribunal, it places appropriate weight on this evidence.
Contributing to the Tribunal’s findings is that the applicant did not apply for a protection visa until approximately three months after arriving in Australia and just prior to the expiry of her visitor visa. The applicant told the Tribunal that she decided she wanted to stay in Australia after one month and the Tribunal notes that her statement accompanying her protection visa application is dated [December] 2013, eight days after her arrival in Australia. If the applicant genuinely held the fears claimed, the Tribunal would have expected her to have lodged a protection visa application, or to have at least made inquiries with the Department, shortly after her arrival in Australia and well before the expiry of her visitor visa.
Cumulative assessment
Considering the applicant’s individual circumstances and country information on a cumulative basis, the Tribunal finds her fear of persecution is not well-founded as required by Article 1 of the Convention.
Considering the applicant’s individual circumstances and country information on a cumulative basis, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines that there is a real risk that she will suffer significant harm.
Ministerial Intervention
[The applicant]’s agent requested that the Tribunal give consideration to referring the case to the Department for consideration by the Minister pursuant to s.417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal has considered [the applicant]’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter.
The Tribunal notes that [the applicant] can still make a request directly to the Minister.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Saxon Rice
Member

[2017] AATA 2141

27 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction