1613224 (Refugee)

[2019] AATA 5826

1613224 (Refugee) [2019] AATA 5826 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613224

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Roslyn Smidt

DATE:24 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(aa) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 24 June 2019 at 12:08pm

CATCHWORDS
REFUGEE – protection visa – Philippines – domestic violence – controlling, violent behaviour – apprehended domestic violence order – breaches of order – relocation in the Philippines – government services and family support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65

CASES
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1

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 on 9 August 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who are citizens of Philippines, applied for the visas on 20 January 2015. The delegate refused to grant the visas on the basis that he was not satisfied that the applicants’ fears were well-founded.

   CRITERIA FOR A PROTECTION VISA

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, he or she 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.

4. 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 because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

   BACKGROUND

9. The applicant is [an age] year old woman from the Philippines. She was born in Makati City, which is suburb of Manila. She completed a [Qualification] in Manila.  In 2007 she moved to Cebu City with her former partner. From 2010 to her departure for Australia she worked as [an Occupation 1] for an [Employer]. She obtained a [visa] on 24 July 2013 and arrived in Australia with her husband [in] July 2013.

10. The applicant’s [age] year old daughter and her [age] year old son are included in the application but have not made any individual claims.

    SUMMARY OF CLAIMS

11. The applicant fears that she will be suffer serious physical harm from her former de facto partner.

12. The applicant provided credible and convincing evidence regarding her relationship with her former partner and the violence and threats which she has experienced in the past. Her evidence is summarised below.

13. The applicant met her partner while they were both studying [Subject] in Manila and began a relationship with him in 2007.  He was controlling and violent towards her from shortly after the relationship began. While they were still at college she told him that she wanted to end the relationship and he [showed] a [weapon] which he owned and said that if she wanted to leave they would die together. Shortly afterwards she fell pregnant with her first child and they remained together. After her daughter was born she went to live with her former partner in his home in Cebu where she remained until she and her partner came to Australia to study in 2013.

14. In Cebu the applicant and her partner lived in his father’s home.  Her partner rarely worked and relied on his mother who is an Australian citizen and resides in Australia for support. He was frequently violent and threatening towards the applicant, particularly if she spoke to anyone outside the home. Her father-in-law did little to help or protect her and if he made any comment her partner would tell him that it was not his concern.

15. In 2010 the applicant found work as [an Occupation 1] at [Employer] in an attempt to become more financially independent. However, the violence and threats continued. Sometimes he came to her [workplace] and sat waiting for her until she finished her shift and if she did not return home immediately after finishing work he would become angry, threatening and sometimes violent. On a number of occasions she came home to find her belonging in the street or the door locked so she had to remain outside until her partner finally opened the door. On one occasion she had to remain outside all night.

16. On one occasion in July 2011 after she came home from work her partner held a knife to her face and cut her. Her father in law tried to hold him back and she ran from the house, but he followed her. For protection she went to a [location] where there were a number of people and someone called the police who took her to the hospital. Her husband was detained for three days, but after that he returned home. She believes that believes that he did not face more problems because his family are influential and intervened in some way.

17. Following this assault the police took her to the Women and Children Protection Desk at the local police station.  She asked about the possibility of obtaining a restraining order, but the police officer in charge said that it was a one-time incident and advised her to reconcile. They also told her she could get a protection order from the local authorities (the Barangay), but when she went there she was told that it was not possible to get an order because she was still living with her partner. 

18. Even after this incident the applicant remained with her former partner because of her children and because she was fearful and under psychological pressure. At the hearing I asked whether she had considered returning to her family in Manila. She said that she had not because when she told her mother about her problems her mother told she should not have married her partner and moved to Cebu with him, but she had so she should be a good wife.  In addition her husband knew where her family lived and he had made threats against him so she was afraid that they would face problems.

19. The applicant and her husband came to Australia in July 2013. Her partner intended to apply for residency after he finished a degree in Australia, but he did not complete the course and his student visa was cancelled. He departed Australia on 16 September 2018.

20. The applicant and her former partner initially lived with his mother. The applicant found night casual work as [an Occupation 2]. Her former partner’s controlling and violent behaviour continued. He and his mother took all of her earnings claiming that it was needed to cover the cost of their visas. Her former partner was violent towards her at least once a week and continued to lock her out of the house when he was angry.

21. In late December 2014 the applicant and her former partner argued about their financial situation and he kicked her. The following day he threatened to throw boiling oil in her face. She left the house and went to see a friend who contacted a teacher from her children’s school who was also of Filipino background. The teacher advised her to contact the police which she did. The same day the Department of Housing arranged accommodation for her and her children to a hotel and then moved them to temporary housing in [Suburb]. She returned to her mother-in-law’s house with police protection to collect her belongings.

22. With help from Legal Aid she also organised a Parental Agreement with her former partner which stated that the children would live with her but he was to have access twice a week. She always took a friend when picking up or dropping off her children because she was afraid of her former partner.

23. The applicant never lived with her former partner following this. However, he continued to harass her. In mid-January 2015 he came to house where she was staying looking for her, but could not enter the building which was locked. After the school term commenced he went to the school when she was picking up or leaving her daughter and made threats against her. [In] March 2015 the school sent him a letter banning him from entering school property, but he went to the school again in late March 2015.

24. In March 2015 the applicant obtained a 12 month ADVO as a result of the December 2014 incident.  Her former partner breached this order in March 2015 when his mother came to the house where the applicant was living and made threats against her while he waited outside. He continued to harass her in breach of the order and she reported these incidents to the police, but her husband always left before the police arrived and his mother said he was at home with her, so not all of them were recorded. In addition to coming to her home he used to stand outside her daughters school every day and sometimes followed her when she left.  When this happened she would walk straight to the police station and he would leave.  In addition to this he sent her text messages expressing his anger and displeasure at the fact that she had left him and was making friends. Then in September 2015 he came to her home and followed her daughter inside. She screamed and immediately called the police and he left. This was recorded as a second breach of the order and he was placed on a good behaviour bond for 12 months.

25. After the good behaviour bond was imposed the applicant’s former husband stayed away from her and her children for a time.

26. In about June 2017 the applicant’s former partner telephoned her daughter. He was very angry and told their daughter to put him on speaker phone. He wanted to know the situation in relation to their visas as he was planning to return to the Philippines. The applicant told him not to speak to their daughter and told him that neither she nor their children to return to the Philippines with him.  After that he blamed her for everything and threatened to kill her or harm her in some other way.  This was not the first time he threatened her life, but on that occasion she recorded the conversation and gave it to the police along with a statement. Her daughter was also interviewed by the police. Following that she obtained another ADVO valid for 12 months which banned him from approaching her or her children until their case was heard by the family court. Despite being banned from doing so her husband continued to telephone her daughter and while she told her daughter she should not answer she continued to speak to her father.

27. The applicant said that her husband would also get angry with their children and shout at them and she also feared for their safety if they returned to the Philippines. She said that while the 2017 order banned her former partner from contacting his children he continued to call her daughter while in Australia and continued to do so after returning to the Philippines.

28. The applicant said that she would be forced to live with her former partner if she returned to the Philippines because she would lack financial support and this would mean that she would again face violence from him.  Alternatively she feared that even if she did not return to live with him he would seek to harm her and possibility her children if she returned to the Philippines and lived apart from him. At the hearing I asked how her husband would be aware that she had returned to the Philippines, particularly as she would no doubt return to Manila rather than Cebu. She said that he knew that she would go to her family and he had always managed to locate her somehow no matter where she went. She also said that she believed that her daughter would tell him that they had returned to the Philippines. She indicated that despite the problems they had faced her daughter wished to remain in contact with her father.

29. At the hearing I asked the applicant whether her family could provide her with support if she returned to the Philippines. She said that she is not estranged from her mother and step-father they blame her for her problems and do not want to be involved. Her older brother is supportive, but has his own family and works away from Manila and he would not be able to provide her with support or protection. In addition, her former partner had made threats against entire family and she was reluctant to involve them in her problems.

    CONSIDERATION OF THE APPLICANT’S CLAIMS

30. I accept that the applicant has suffered long term physical, economic and psychological abuse from her former partner. It is also clear that he stalked her and her children, observing them at school and in their home. I accept that he continued to bear a great deal of animosity towards her following the end of their relationship. It is also clear from the evidence that he blamed the applicant for the end of their relationship, his limited access to his children and the failure of his plans to remain in Australia. In these circumstances I accept that it is highly likely that he would seek to harm her in the Philippines if the opportunity arose. The first question that remains to be answered is therefore whether there is a real chance that this would occur.

31. It is clear from the evidence that the applicant would live in Manila where she resided prior to commencing her relationship with her husband and would not return to live with him or in Cebu where he husband currently resides. While this suggests that it is unlikely that the applicant would suffer serious or significant harm at the hands of her husband, in my view the possibility of this occurring cannot be dismissed as remote and insubstantial.  The applicant’s young daughter remains in contact with her father and I accept that she would tell him if she returned home and that as a result it is likely that he would be able to locate her anywhere in the Philippines. His long history of violent and controlling behavior towards the applicant, which includes stalking, suggests that he would seek to use this knowledge to harm her and that the distance between his home and the place of residence chosen by the applicant would not be a significant deterrent to him carrying out his past threats. I also note that the applicant would be a single mother living alone with her children with limited support from her family. In these circumstances I am satisfied that there is a real chance that the applicant would face serious or significant harm on return to the Philippines in the form of significant physical abuse from her husband.

32. Women suffering violence from family members may, depending on the circumstances, come within the scope of the Refugees Convention: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. A majority of the High Court in Khawar held that the refugees test may be satisfied by the selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention related. Importantly, there must be systematic and discriminatory conduct, and mere inaction will not suffice.

33. According to DFAT violence against women is widespread in the Philippines. Police stations have ‘women’s desks’ for women to report violence and a specialist police command dealing with women’s issues exists within the police force , but the effectiveness of these services varies. Some women may turn to Barangay Captains for assistance with domestic violence and some women may be provided effective protection in this way in the form of ‘Barangay Protection Orders’, which are analogous to Apprehended Violence Orders. However, some women report that Barangay Captains insist on trying to reconcile the victim and her abuser, exposing her to further violence.

34. Some women who are victims of violence may be supported by extended family. However, whether or not this is effective protection depends on the individual family. Sources who work with women’s rights in the Philippines told DFAT that some women who seek protection from their extended family may be stigmatised and abused for leaving their husbands. Single women with children are particularly stigmatised.

35. The Department of Social Welfare and Development, local specialist NGOs and some churches provide shelter and counselling services, which are more readily accessible in large cities. Local NGOs told DFAT that these services are too few in number to meet demand. These services generally target the poor, but women from wealthier backgrounds may be accepted. Victims of domestic violence may be stigmatised; there is a taboo about family violence. Some women are reluctant to leave abusive partners for religious or moral reasons. Annulment, a process where the Catholic Church may dissolve a marriage as an alternative to divorce, can take a long time and is costly

36. It appears that some services and protection are available to women, but it is not always effective and is some case local police and officials may well withhold these services as a result of discriminatory attitudes towards women. The applicant’s attempts to access protection in Cebu appear to have failed because of these attitudes. However, she would be returning to Manila where services appear to be better and she no longer living with her husband and may face a different situation there.  In these circumstances I am not satisfied that the applicant would face selective and discriminatory withholding of state protection because of her status as a woman and therefore not satisfied that she has a well-founded fear of persecution in the Philippines for a Convention reason.

1. However, I am satisfied that there is a real risk that she would suffer cruel or inhuman treatment in the form of serious physical harm intentionally inflicted by her husband or people associated with him. Furthermore, while it appears that the authorities in the Philippines seek to provide some degree of assistance to victims of domestic violence, this appears to be relatively limited and in my view the applicant would not be able to obtain protection from the authorities such that there would not be a real risk that she would suffer that harm. I am therefore 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.

   CONCLUSIONS

2. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(aa)

   DECISION

3. The Tribunal remits the matter for reconsideration with the following directions:

   (i) that the first named applicant satisfies s.36(2)(aa) of the Migration Act; and

   (ii) that the other applicants satisfy s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   Roslyn Smidt
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …