1708133 (Refugee)

1708133 (Refugee) [2021] AATA 704 (5 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1708133

COUNTRY OF REFERENCE: Philippines
MEMBER:Damian Creedon
DATE:5 February 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 5 February 2021 at 2:22pm

CATCHWORDS
REFUGEE – protection visa – Philippines – political opinion – Kilusang Magbubukid ng Pilipinas (KLM) Party – race – ‘Lumad’ ethnicity – past harm suffered – fear of judicial killing – land grabbing off Lumad peoples – political activism – return visit to the Philippines – anti-terrorism laws – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
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 and Border Protection on 12 April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
Background
The first and second-named applicants, both citizens of the Philippines, arrived in Australia [in] July 2013 as holders of a [Student] visa. The third-named applicant, also a citizen of the Philippines, was born in Australia on [date]. The applicants applied for protection visas on 26 April 2016. The first-named applicant (applicant) is the primary applicant for a protection visa.
Protection visa application
The delegate of the Minister summarised the applicant’s protection claims in the following terms (not corrected for spelling or grammar):
The applicant claims that he left the Philippines in July 2013 to travel to Australia to study and that his wife and [age] girl are here in Australia with him.
The applicant claims that he is seeking protection in Australia because he does not want to return to the Philippines.
The applicant claims that he finished his studies back in the Philippines. He claims that he was a school leader at University. He claims whilst being a school leader at University some political parties encouraged him to join them as a political activist. He claims that he was drawn to those political parties to support the poor people. He claims that this is why in 1997 he joined the KMP party [in] Cotabato. He claims that he joined KMP because he believed that he could help them and to extend his knowledge.
The applicant claims that KMP helped indigenous people, farmers, the young and women. He claims that his aim was to build a good society for his people. He claims that as a political member of this group he provided them with opinions and assisted in rallies as well as helping the indigenous people in his home. He claims that a result of his involvement in this political party he was harassed, jailed and tortured by the police and the military.
The applicant claims that his leader in [his area] of Cotabato was killed in August 2015. The applicant further claims that political leader [named] who was the chairman was also [killed]. The applicant claims that the political situation in his home country is getting worse and that the government will not be able to help. The applicant claims that the government supports the police and the military.
The applicant claims that the small political parties are the ones who need help but the government never helps them because the government. He claims that corruption, drugs and poverty are the major problems in the Philippines.
The applicant claims that when the government changed in June 30, 2016, President Rodrigo Duarte hard stance on eliminating drugs saw innocent people being killed by police who were given orders to shoot-to-kill.
The applicant claims that the Commission of Human Rights advocates are fighting against the order to shoot-to-kill. The applicant claims that judicial killing is happening in his home country and he is afraid of what will happen to innocent who are killed without any course of investigation. He claims that the police can easily point out innocent people and kill them.
The applicant claims that in September 2 in the Southern part of the Philippines there was a bomb blast, where innocent people including children were killed. The applicant claims the group responsible for this as well as other bombs are a group named Abu Sayyaf group who are associated with ISIS in the Middle East.
The applicant claims that within 24 hours after the bombing the President declared a state of lawless violence. The applicant claims that violence, wars and crimes is the major problems the government currently face. Therefore, the applicant claims that he cannot take the risk of his family returning to the Philippines. He claims that life here in Australia is safe and believes the Australian government protects them.
The applicant claims that his country is very dangerous and fears he will be killed or possibly murdered. The applicant also claims that he currently has been treated for psychological stress due to the torture and harassment he endured in the Philippines.
The applicant attended an interview with the delegate on 8 December 2016 (protection visa interview). Where relevant, the applicant’s evidence to the delegate is referred to below.
The delegate refused to grant the visas on 12 April 2017 on the basis that the applicant does not have a well-founded fear of being persecuted in the Philippines. The delegate also did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that he will suffer significant harm there.
The applicants applied for a review of the delegate’s decision.
Application for review
The applicant was not represented in relation to the review by a registered migration agent.
The applicant appeared before the Tribunal on 25 January 2021 to give evidence and present arguments. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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, 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.
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.
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 themselves 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).
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.
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
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
Material before the Tribunal
Pre-hearing submissions
The applicant provided a number of pieces of documentary evidence to the Tribunal prior to his hearing. In particular, the Tribunal has read and had regard to the following material:
a.Davao’s First Online News, Lumads in Arakan fear military-backed ‘pangayaw’, 19 August 2012.
b.[Information deleted].
c.International Organisation for Self-Determination and Equality, Bowers, I R, Urgent Appeal for Lumad Communities, 17 September 2015.
d.CNN Philippines, Santos, E P, [PH] gov’t under fire over violent Kidapawan dispersal, 2 April 2016
e.CNN Philippines, Ho, A, Santiago, Duerte call Kidapawan violence ‘inhuman,’ ‘barbaric’, 7 April 2016.
f.International Organisation for Self-Determination and Equality, Urgent Appeal for Lumad Communities, 23 April 2016.
g.The Guardian, Ellis-Petersen, H, Rodrigo Duterte to pull Philippines out of international criminal court, 15 March 2018.
h.ICC Press Release, President of the Assembly of States Parties responds to announcement of withdrawal from the Rome Statute by the Philippines, 16 March 2018.
i.Freedom House, Freedom in the World 2018 – Philippines, 5 April 2018.
j.Amnesty International, Report 2017/18 – The State of the World’s Human Rights – Philippines, 5 June 2018.
k.Political posters or flyers bearing the slogan titles: End Lumad Exploitation and Killings! and Stop the Killings!, undated.
The applicant also provided numerous other documents including tax returns, letters of support, and blood donor and community service recognitions which the Tribunal has read and to which it has had regard.
The Tribunal has also viewed and had regard to the photographs provided by the applicant showing the aftermath of street protests in the Philippines; these will be discussed below.
Oral evidence
The applicant is [an age]-year-old Philippines national from Cotabato, Mindanao in the south of the Philippines archipelago. The applicant was born into a farming family, whose primary crops were corn and rice. His father passed away in 2014; his mother and [number] of his siblings are still resident in the Philippines; one of his siblings passed away some years ago.
The applicant and the second-named applicant were married in the Philippines in 2004; the third-named applicant is their daughter and the couple also have [an age]-year-old son who is not a party to the application presently before the Tribunal.
The last occasion the applicant visited the Philippines was in October 2014 on the occasion of his father’s passing; he was in the Philippines for approximately five days.
The applicant’s evidence is that he finished his primary and secondary schooling in Cotabato and commenced university in Manilla in [year]. The applicant studied for and completed a [degree] in [year].
The applicant stated that he first became interested in political issues while in secondary school in Cotabato. He stated that his political views were centred around supporting and promoting the rights of ‘Lumad’ people, a collective name for the indigenous people of the Mindanao region.[1] He stated that he himself is of ‘Lumad’ ethnicity. When pressed by the Tribunal as to the nature of his political awakening, the applicant stated that he began to form and advocate political views while at high school. He stated that he was unable to attend political rallies, being underage, but that he and others expressed their views through local student publications.
[1] See further: Republic of the Philippines, Office of the President, National Commission for Culture and the Arts, LUMAD in Mindanao, >
When pressed on his political opinions, the applicant stated that the primary issue affecting Lumad people was ‘land grabbing’. He stated to the effect that the majority of Lumad people in the region were illiterate and were exploited by ‘powerful politicians’ who were able to threaten violence against the Lumad. When pressed, the applicant stated that, historically, Lumad families were entitled to ‘own’ and farm any land that they cleared for agriculture from the forest. However, there was no ‘paper’ certifying or granting ownership of such land and ‘politicians’ in the region ‘make their own titles’ and assume ownership of the land for development. He stated that his family were victims of such ‘land grabbing’.
The applicant stated that this practice of ‘land grabbing’ was the issue he advocated most strongly against as a high school student. When asked by the Tribunal what the response was to his advocacy the applicant stated that he and others were threatened by ‘police’ and ‘military personnel’ and were, on occasion, subjected to physical assaults, including punching. When pressed, the applicant confirmed that these incidents occurred while he was a high school student. However, the applicant stated that these incidents did not prevent him from progressing to college; he stated that, rather than deter him, his experiences motivated him to further his education.
The applicant stated that he was successfully granted entry to university and moved to Manila in [year]; he enrolled in his courses and began study. When pressed by the Tribunal as to whether there were any ongoing threats made against him as a student in Manila, the application stated:
[Of] course there is.
When further pressed, the applicant stated that although Manila is a larger city and there are many political groups there, he was the subject of harassment by the authorities, by ‘the bodyguards of the politicians’, the same ‘Muslim’ politicians who were active in ‘land grabbing’ in Cotabato. The applicant described them in evidence as a ‘family’ of politicians operating at all levels of Philippine society, and on the national and local political scenes.
The applicant stated that, as a senior in high school, he had not been politically active as a member of an advocacy group, however after he arrived in Manila to commence his studies at university he became a member of a movement known as the ’Kilusang Magbubukid ng Pilipinas’[2] (KMP). When pressed, the applicant stated that he joined the KMP after beginning his studies, although he was regarded as a ‘student leader’ prior to his joining the movement and he had been a ‘student representative’ in high school. When pressed he stated that the process of joining the KMP involved the completion of an application form; he stated that he did not receive a membership card, but ‘at that time’ only a certificate of membership.
[2] Loosely translated as ‘Peasant Movement of the Philippines’: see (accessed 2 February 2021).
When questioned by the Tribunal as to whether he attended meetings of the KMP, the applicant stated that he did. When pressed as to how frequently he attended meetings, the applicant stated that it depended on current events in Manilla and the Philippines as a whole as to how frequently the group met to organise their response. The applicant stated that the responses most often took the form of rallies or attending as a group to protest outside the offices of politicians. When pressed specifically as to his role in organising and attending such events, the applicant stated that he was a ‘team co-ordinator’. When further pressed as to the role of a ‘team co-ordinator’ the applicant stated that he had to gather ‘his’ members, motivate them through ‘making speeches’, to decide upon slogans and make placards aimed to attract the attention of politicians, including the President.
When pressed as to the first occasion that he attended a rally in the role of ‘team co-ordinator’, the applicant stated that he could not remember precisely when. When asked how many such rallies he attended, the applicant stated, ‘more than 10’ across his five years at college. He agreed with the Tribunal’s suggestion of ‘two or three per year’.
The Tribunal then asked the applicant what type of incident would have motivated the KMP to decide to hold a rally. The applicant stated that, politically the group wanted to see ‘stability’ and for the government to ‘hear us’ and that the KMP wanted to help all who were in need, not merely farmers. When pressed by the Tribunal to provide a specific example of an incident that would result in a rally, the applicant provided the example of a rally held in opposition to ‘land grabbing’ in [a named town] in the province of Tarlac. The applicant stated that activists were killed protesting land deals arranged by the Aquino family, including the former President of the Philippines, for their own benefit.
When pressed as to his involvement in the rallies, the applicant stated that he was a ‘team co-ordinator’ and because of that role he was a known and visible member of the opposition to the ‘land grabbing’ and he would be ‘easily targeted’. When pressed as to why he was ‘visible’ the applicant stated that he was one of the ‘front-liners’ and was known to the authorities by name and by sight as well as from intelligence gathering. The applicant stated that he had been arrested on a number of occasions at rallies by ‘national police’; he stated that he had not been detained at every rally he attended as it would depend upon whether he was caught. When pressed he stated that he was detained on around five occasions.
The Tribunal then pressed the applicant as to the nature of his detention and his treatment in custody. He stated that the national police would break the rally up and, as a participant, if caught, he would be detained. When asked to describe this process he stated that upon being caught he would be surrounded by ‘four or five’ police and placed in a headlock. He would then be handcuffed with his hands behind his back and placed in a truck or ute-like vehicle with an open cage on the back into which up to 10 protesters would be placed ‘depending upon how many they captured’.
The applicant stated that he would then be taken to gaol and detained for up to 24 hours. He stated that in the gaol he was verbally threatened, ‘blackmailed’, and then beaten about the body, punched and kicked. He stated that on one such occasion the police intentionally burnt him in several places about his body with cigarettes.

When pressed, the applicant stated all of his arrests by the police followed a similar pattern; when further pressed he stated that the intensity or duration of his arrests, and his mistreatment, did not increase or change despite his having accumulated a number of such arrests.
The applicant stated that he could not recall the last rally that he attended, because he has ‘tried to forget’. When pressed he stated that he recalled being arrested after a rally at the President’s ‘State of the Nation’ address. He was unable to recall the exact date; however, it was after he had left college but before his first job.
The applicant stated that, although he continued as an active member of KMP after leaving university, his attention turned more to finding employment and he attended only one or two further rallies. The applicant state that he found employment in [Country 1] in 2004 and that he had been working outside of the Philippines that time in [Country 1], [Country 2] and [Country 3] primarily as an [Occupation 1], but undertaking any role that was required of him from time-to-time. His most recent work, prior to coming to Australia, was in [Country 4] as a [Occupation 2].
When pressed to describe his relationship with the KMP after leaving college and beginning work in [Country 1], the applicant stated that he retained membership of KMP and was active in supporting the group but was ‘invisible’ (which the Tribunal takes to mean ‘from a distance’). He stated that ‘sometimes’ he had contributed financially to the KMP ‘if [he] had money’. The applicant stated that the KMP did not charge a regular membership fee as most members had limited financial capacity. He stated that the KMP was reliant on donations from members and upon assistance from international groups.
When further pressed as to his role after he left the Philippines, the applicant stated that he was aware that KMP rallies continued but he could not participate in them as he was offshore. Notwithstanding this, he stated that he supported the rallies and the KMP as a ‘coordinator’ from offshore. When further pressed as to the nature of his role, the applicant stated that he would meet with other KMP members via phone calls.
The applicant stated that he did not travel to the Philippines between 2004 and 2012, when he returned to make his Student visa application for Australia. He stated that he was present in the Philippines for some months during this process but was unable to recall precisely how long. He stated that he had searched for work during this time but had been unsuccessful.
The applicant claimed that before he returned to the Philippines in 2012, he had been warned by associates in the KMP to be careful as he was being ‘targeted’. When pressed the applicant stated that he was being targeted on account of his previous activities with the KMP. The applicant stated that he was concerned for his safety when he returned in 2012 and that he kept a low profile so as not to draw attention to himself. He stated that nothing happened to him during his time onshore in the Philippines, but that ‘the threat is there’ and his ‘fear is still there’.
The applicant stated that since arriving onshore in Australia he has retained membership of the KMP and has maintained contact with other members of the group in the Philippines. He stated that he keeps abreast of what is happening from these conversations and from the news media.
When asked what he feared about returning to the Philippines either now or in the reasonably foreseeable future, the applicant stated that he feared that he ‘will die’. When pressed as to why he feared for his life, the applicant stated:
Because of my political views; and …if they know I am back.
When asked by the Tribunal why he would still be of interest to the authorities when his physical involvement in KMP rallies was some 20 years ago, the applicant stated that he is still a member of KMP and that some of the communities know him, and that the communities have informed him that the police have asked them of his whereabouts. When further pressed the applicant was unable to state the last occasion that he was informed about this.
The Tribunal then raised with the applicant his last visit to the Philippines, in October 2014 following the death of his father. The applicant clarified that he did not physically attend his father’s funeral out of fear for his safety. He stated that he was hesitant even to return on this occasion, but that he felt obliged to do so to pay respect to his father before he was buried. The applicant stated that did not have any difficulty passing through Philippines immigration when entering or leaving the country and he was not arrested or detained during his visit for any reason.
The Tribunal asked the applicant if he was on a police ‘blacklist’, he stated that he was not on the ‘most wanted’ list, but to the effect that he was a known member of KMP.
In respect of the current government in the Philippines, the applicant stated to the effect that all opposition groups, including the membership of the KMP, were being targeted as domestic terrorists. The applicant stated that were he to return to the Philippines now he feared that he would be arrested as a domestic terrorist and potentially killed.
The applicant stated in oral evidence that the photographs that he has provided to the Tribunal were taken at a KMP rally in 2016 and that he did not take part in that rally. He provided the photographs to illustrate what he had experienced in other similar rallies.
Documentary evidence provided at the hearing
The applicant provided a number of pieces of documentary evidence to the Tribunal at the hearing. In particular, the Tribunal has read and had regard to the following material:
a.Document entitled, Philippine travel ban covers 34 countries until January 31, 2021, 15 January 2021.
b.ABS-CBN News, CHR seeks protection of students vs abuse in Int’l Day of Education, 24 January 2021.
c.ABS-CBN News, PH virus tally breaches 513,000 with over 1,900 new cases, 24 January 2021.
d.Cabrera, F, 13 people die in Maguindanao clash during law-enforcement op, 23 January 2021.
Analysis, findings and reasons
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Overall, the Tribunal found the applicant’s claims as to his background, education, membership of the KMP and political activism between 1997 and 2002/3 to be coherent and plausible, and to be consistent with generally known facts. His evidence to the Tribunal on these issues was also consistent with his protection visa interview and in giving it he did not convey an impression of concoction or recent invention. In making these findings the Tribunal has made allowance for the passage of time and given the applicant the benefit of the doubt where it is reasonable to do so.
For the following reasons, however, the Tribunal is not persuaded on the evidence available to it that the applicant has a well-founded fear of persecution or that he faces a real risk of significant harm if he was to return to the Philippines now or in the reasonably foreseeable future.
The Tribunal accepts the applicant’s evidence in respect of his family background, his ethnic identity as a member of the Lumad community and his primary and secondary education in Cotabato. On balance, the Tribunal is prepared to accept that the applicant was a ‘student leader’ in high school and became politically aware at around that time. As a politically aware member of the Lumad community, it is reasonable, and the Tribunal accepts, that the applicant would be aware of, and an advocate for, his community in respect of their interests on contentious issues.
Credible country information supports the applicant’s claims as to the practices of ‘land grabbing’ being a contentious issue affecting the Lumad and ‘peasant’ communities in the Philippines for some decades.[3] Country information also supports the applicant’s claims as to the existence of ‘dynastic political families’ monopolising elective offices in the country.[4]
[3] The Diplomat, Haynes, O, The Mendiola Massacre: Decades on, Philippine Land Reform Movement Remains Mired in Blood, 22 January 2021.
[4] U.S. Department of State, 2019 Country Reports on Human Rights Practices: Philippines, (accessed 5 February 2021).
On balance, the Tribunal accepts the applicant’s evidence that he was admitted to university in Manila and that he studied there between [specified years]. The applicant claims to have become a member of the KMP after commencing his studies. On the KMP website the organisation describes itself in the following terms:[5]
Kilusang Magbubukid ng Pilipinas (KMP) is a democratic and militant movement of landless peasants, small farmers, farm workers, rural youth and peasant women. It has effective leadership over a total of 1.3 million rural people with 65 provincial chapters and 15 regional chapters nationwide.
[5] (confirmed by the applicant at the hearing to be the correct website; accessed 4 February 2021).
In respect of its aims and methods, the KMP website provides the following information:
KMP is guided by the rich lessons of our mass campaigns and struggles. It unites with all oppressed and exploited classes, and fights for the interests and aspirations of the entire Filipino people.

KMP continues to consolidate and defend its gains and victories while advancing the peasant struggle against class exploitation and national oppression.

As a militant genuine peasant movement, the KMP struggles for the following:
·    A genuine agrarian reform program and national industrialization as the foundation for over-all economic development;
·    A sovereign nation free from foreign domination and control, and defends the people's civil, political, economic, social and cultural rights;
·    A comprehensive and pro-people social program that provides basic social and public services;
·    A genuine aquatic reform program that upholds the rights of small fisherfolk;
·    Promotion of peasant women rights and welfare that eradicates all forms of discrimination, exploitation and oppression against women and children;
·    Respect for the right to ancestral lands and self-determination of indigenous peoples;
·    Protection of the rights to agricultural workers for fair and living wages, and safe and good working conditions;
·    A nationalist, mass-oriented, scientific culture;
·    Science and technology for the people that serves a national economic program and promotes sustainable agriculture and enviromental protection; and
·    Solidarity and support to the struggles of the peasantry and the people of the world against imperialism.
The farmers' united and militant assertion of their rights and interests is an effective strategy to confront repulsively unequal class relations. KMP carries out painstaking organizing and education work among the peasants as a requisite in building a strong democratic mass organization.

To fulfill its vision and mission, KMP employs various proven effective forms of struggle and massive militant actions to uphold and protect the rights and interests of the peasants. KMP coordinates the farmers' local struggles and campaigns at the national level. It is also linking up with movements and organizations of workers and other sectors of society as well as with struggles and movements internationally.

KMP also struggles for immediate economic relief for the peasants and builds economic organizations, launches programs and projects such as livelihood and production, health, sanitation, disaster relief, and technology-development projects.
In support of his claim to membership of the KMP the applicant provided the department with an unverified copy of a membership certificate, emailed to him in 2016. The delegate gave the applicant the benefit of the doubt in respect of his evidence as a whole as to his relationship with the KMP, including the certificate of membership, and accepted that he was a member of the KMP. The Tribunal respectfully agrees with the delegate’s assessment; the stated aims of the KMP align with those to be expected of a university student in Manila with the applicant’s ethnic background and political awareness. On balance, therefore, the Tribunal accepts that the applicant was a member of the KMP at the time he claims and, if not now an active member, he at least continues to be sympathetic to the movement’s goals.
The applicant claimed in evidence to the Tribunal and in his protection visa interview that as a member of the KMP he attended numerous protest rallies, some 10 to 15, in the five years he was at university between [specified years]. Sufficient, if primary, country information exists for the Tribunal to accept that the KMP engages in protest rallies as part of its advocacy campaigns.[6] Participation in such protest rallies is a reasonable extension of the applicant’s membership of the KMP between [those years] and the Tribunal accepts the applicant’s claims that he did so.
[6] See e.g.: >
The applicant claims to have been detained on around five separate occasions after protest rallies, and to have spent approximately 24 hours in gaol on each occasion. The applicant further claims to have been verbally threatened and beaten about the body on each occasion of his detention and on one occasion he claims that he was intentionally burned with cigarettes on several places about his body.
Credible country information supports the applicant’s contentions regarding the treatment of detainees in the Philippines; the United States Department of State notes that:[7]
The constitution and law prohibit torture, and evidence obtained through its use is inadmissible in court. According to the [Philippines Government Commission on Human Rights] CHR, however, members of the security forces and police were accused of routinely abusing and sometimes torturing suspects and detainees. Common forms of abuse during arrest and interrogation reportedly included electric shock, cigarette burns, and suffocation.
As of August the CHR had investigated 29 cases of alleged torture involving 35 victims; it suspected police involvement in 21 of the cases. In April three police officers were charged with violating laws against torture after beating two civilians in a gaming shop in Cebu, recorded in widely viewed closed-circuit television footage.
(Tribunal’s emphasis)
[7] U.S. Department of State, 2019 Country Reports on Human Rights Practices: Philippines
In support of his claims the applicant provided a medical opinion from [Doctor A] at [named medical centre].[8] [Doctor A’s] opinion states that he was advised by the applicant that:
The patient alleged that he has been tortured during his younger days while he was in college in the Philippines [between specified years].
During the period, he was captured a few times because of his political views, and he was allegedly hit by blunt objects on his body (mostly the [body parts]) and burned with hot objects (lighted cigarettes).
[8] Letter from [a named medical centre] under the hand of [Doctor A], dated 23 December 2016.
[Doctor A’s] opinion, in respect of five ‘old scars’ he identified on the applicant’s body, is as follows:
Clinical examination revealed multiple old scar wounds and evidence of minor injuries, which could be consistent with intentionally inflicted wound[s as described by the patient.
Accordingly, having regard to the evidence before it, the Tribunal accepts that the applicant:
a.participated in a number of KMP protest rallies as a university student between [specified years];
b.was detained after participating in five such rallies;
c.was held in detention for approximately 24 hours on each occasion of his detention; and
d.was subject to verbal and physical abuse, including being beaten about the body, on each occasion and on one occasion was burned with cigarettes.
The applicant’s evidence to the Tribunal as to when he attended his last rally with the KMP was vague but was no later than [year]. This is broadly consistent with his protection visa interview where he stated that the last occasion he was detained was in his ‘college days in [year]’.
When asked by the Tribunal about his fear of returning to the Philippines now or in the reasonably foreseeable future, the applicant stated that he feared that he ‘would die’ because of his ‘political views’ ‘if they know [he] is back’. When pressed as to these fears, the applicant referred to his membership of the KMP and his concern that the Philippines Government would categorise or had categorised the KMP as a terrorist organisation.
Country information informs the Tribunal that on 3 July 2020 the Philippine President Rodrigo Duterte signed into law the Anti-Terrorism Act of 2020.[9] Several international bodies have expressed concern in respect of the Act, including the United Nations[10] and Amnesty International.[11] Their concern centres around the definition of ‘terrorism’ and the risk that the Philippines government may misuse the legislation to target opposition and advocacy groups.
[9] (Accessed 4 February 2021)
[10] (Accessed 4 February 2021)
[11] (Accessed 4 February 2021)

The Tribunal acknowledges these concerns, however there is no country information presently available to suggest that the Philippines government has used the Anti-Terrorism Act of 2020 or any legislation to target the KMP or any of its members as terrorists or that it plans to do so in the reasonably foreseeable future.
The Tribunal notes in this regard country information from the Department of Foreign Affairs and Trade (DFAT) that the Philippines ‘is party to most major international human rights conventions’ and in May 1987 established the independent office of the Commission on Human Rights (CHR).[12] In respect of the CHR, DFAT reports that:[13]
The CHR is fully compliant with the ‘Paris Principles’ (relating to the status of national human rights institutions) and has ‘A’ status (the highest status of national institutions accredited by the Global Alliance of National Human Rights Institutions). The CHR has monitoring and investigative capacity but no enforcement powers.
[12] DFAT Country Information Report: The Philippines, 21 December 2018, paras [2.37], [2.39].
[13] Ibid, para [2.42].
The Tribunal notes the following statement from the CHR on the passage of the Anti-Terrorism Act of 2002:[14]
Statement of CHR Spokesperson, Atty Jacqueline Ann de Guia, on the passage of the Anti-Terrorism Law
The Commission on Human Rights (CHR) has expressed its reservations about the Anti-Terrorism Act—not for its intent to curb terrorism, but on how the law puts at risk the guaranteed rights of the people.
We were present during deliberations at the Senate and House of Representatives even before the President signed it into law today, 3 July 2020.
Our position has been clear: CHR deplores how violences [sic] by terrorists have disregarded individual and collective rights through the destruction of properties and loss of lives. We are against terrorism. But in the pursuit of a safer nation, we cannot compromise our human rights.
With the law’s passage, CHR will hold on to the government’s commitment, alongside the sponsors and advocates of this law, that human rights will be upheld at all cost. This includes commitment to protect free speech; the right to dissent and petition redress for grievances; due process and presumption of innocence; and respect for human dignity and the value of human life among others.
Ensuring that we live in peace is a human right. Let’s not frame human rights as if they are mere hindrances. They are the standards by which we demand actions from the government for a better, dignified life.
CHR will continue to be vigilant against abuses and will remain firm in standing up for human rights.
(Emphasis in original.)
[14] (Accessed 4 February 2021)
While acknowledging the concerns expressed by international bodies, and the cautious statement of the CHR, there is no evidence that the KMP or its members are being, or are intended to be, targeted by the Anti-Terrorism Act or similar legislation or government programmes. Accordingly, the Tribunal considers the applicant’s fears regarding the potential for abuse of the Act to be mere speculation not amounting to a well-founded fear.[15] The evidence does not show a real ground for believing that the applicant is at risk of persecution under the Anti-Terrorism Act on account of his membership of the KMP, his attendance at KMP protest rallies between [specified years] or for any other reason.
[15] MIEA v Guo (1997) 191 CLR 559 at 572.
In respect of the applicant’s general history as an active member of the KMP between [specified years], on his own account the applicant was resident in the Philippines from his graduation in [year] until he departed the Philippines to travel to his first job (in [Country 1]) in early 2004. The applicant makes no claims to being targeted during this period on account of his membership of, or activities with, the KMP or because of his political beliefs; or of being detained, mistreated or persecuted for any reason. Notably, the applicant and the second-named applicant were married prior to his departure in 2004.
Similarly, when the applicant returned to the Philippines in 2012 to make his application for a Student visa, he was able to pass through Philippines immigration and to live there without incident for a number of months until he travelled to Australia, arriving onshore [in] July 2013. The Tribunal finds the applicant’s claims to having been warned about his safety prior to his return to the Philippines in 2012 to be vague and unpersuasive. He offered no details of the alleged warnings, or why he specifically would have been targeted or by whom; and he offered no evidence to suggest why his circumstances in the Philippines would have changed in 2012 when compared to his uneventful residence there between his graduation in [year] and his departure for employment in [Country 1] in early 2004.
Although the applicant claims to have been a ‘front-liner’ and a ‘team co-ordinator’ during his period as an active member of the KMP between [specified years], he provided no persuasive evidence to the Tribunal to suggest that he has a significant profile within the organisation or that he would be targeted on this account if he were to return to the Philippines now or in the reasonably foreseeable future. Further, on the applicant’s own account his incidents of detention occurred as a direct result of his participation at protest rallies. His evidence is that he has not engaged in such rallies since at least 2003 and he gave no indication to the Tribunal that he planned to do so in the future.
The Tribunal has also read and had regard to the materials provided by the applicant concerning the COVID-19 pandemic in the Philippines. At the hearing the applicant advanced a generalised concern that he would not be safe anywhere there on account of the ‘invisible enemy’, clarified by the Tribunal to be a reference to COVID-19. To the extent that the applicant advances a generalised concern for his safety in respect of COVID-19 in the Philippines the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations on this account under s.36(2)(a) or (aa).
Conclusions: first-named applicant
The Tribunal finds that the applicant does not face a real chance of serious harm for the reason of his membership of the KMP, his participation in protest rallies or for any other reason. The Tribunal finds that the applicant does not face a real risk of significant harm arising from his political beliefs in the Philippines.
After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal does not accept that if he were to return to the Philippines now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
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) of the Act. The Tribunal is not satisfied 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 he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. 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 criteria in s.36(2).
Conclusions: second and third-named applicants
The second and third-named applicants’ claims for a protection visa are as members of the same family unit as the first-named applicant. The second-named applicant was invited at the hearing to give evidence; however no further or other issues were raised for the Tribunal’s consideration.
It follows that the second and third-named applicants do not satisfy 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, they do not satisfy the criteria in s.36(2).
Overall conclusions
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Damian Creedon
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2021] AATA 704

5 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction