1712656 (Refugee)

1712656 (Refugee) [2023] AATA 2758 (26 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Alkafaji (MARN: 1386318)
CASE NUMBER:  1712656
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Melissa McAdam
DATE:26 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 May 2023 at 11:49am
CATCHWORDS
REFUGEE – protection visa – Philippines – interfaith marriage – religious marriage to Muslim husband – expecting child – fear of father – father’s connections to officials – unable to relocate in Philippines – referred for ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 8 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Philippines, applied for the visa on 25 February 2016.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Protection visa application
The following is a summary of the claims and information the applicant provided in her Protection visa application:
a.She was born in [year] [in] the Philippines. She submitted a copy of her Philippines passport.
b.She is in a de facto relationship with a man.
c.Her parents, younger sister and younger brother are living in the Philippines. She is in contact with her relatives in the Philippines through [social media] messages.
d.She had no paid employment in Philippines.
e.She arrived in Australia [in] June 2014 on a Student visa.
f.When she got engaged to a Muslim man her parents threatened to hunt and kill her wherever and whenever she returns to the Philippines.
g.Her father has connections with the police and government because he has a position in the Catholic church.
h.Her mother cut the applicant’s hair so that her church suspended her. Her father pointed a gun at her face when she insisted on going to the church.
i.She was brought up in a very religious conservative family. When she was young her parents were very hard working and absent from home most of the time. The applicant [has] two siblings. When she was [age] she learned to cook, clean the house and look after her siblings because her parents were not there because of their work.
j.The applicant developed a very close relationship with her Aunt [A]’s family. Aunt [A] is her father’s [sister]. They lived next door and her kids are the applicant’s age. However they were not Catholic. They belonged to the “Church of God in Christ Jesus”. This religion is very strict, for example the women should not cut their hair, should use only long skirts when going out, in general there is no Christmas and it was not allowed to eat Christmas food, it was not allowed to go and eat in a festival involving Catholic churches, it was not allowed to eat cooked blood, etc.
k.The applicant’s other aunt, ‘Aunt [B]’ is not married and is a pastor in the “Church of God in Christ Jesus”. The applicant’s Aunt [A] and her husband are pastors in the same church as well. They spent most of their time in the church to preach to other members. Aunt [B] used to take the applicant with her when she needed to preach to people. She told the applicant that their religion is the truth and encouraged the applicant to join and serve God with them.
l.The applicant accepted the new religion freely as she saw in it the correct path to follow to achieve her aspirations and hopes. Her parents were very upset. Her mum cut her hair as a punishment for the applicant’s new conversion to the new faith.
m.The applicant believed and still believes in this church and the faith which revolves around it contrary to what her parents believed in. The applicant was not regarded as a Catholic.
n.There was a time that the applicant got scammed in the street and she lost the only money that the family had, which her mother had just borrowed from her sister. Her mother told the applicant to use the money to buy food for the week but the applicant went home without food and money. Her mother was very angry with the applicant and blamed the applicant’s religion for being stupid. Her mother said it was the last time that the applicant could attend her religion. She didn't allow the applicant to go to her church from then on. She did not give the applicant any money.
o.One time the applicant’s father pointed his gun at her face when the applicant insisted on going to her church. Her mother also cut the applicant’s hair to prevent the applicant from going to her church. Because her mother cut her hair the applicant was suspended from the church and was not allowed to serve in the church for a period of time. She was suspended from going to the church until her departure from Philippines in 2014.
p.The applicant was [age] years old when she changed her religion. She would go to her new church every Saturday and Sunday, with her cousins and auntie to serve. The applicant would go home late because of her service in the church. The applicant would go to the church programmes that were scheduled for after school.
q.The applicant’s parents started to say that the applicant wasn't focusing upon school anymore and that she was always outside, late at night and was avoiding their religious festivities. When her parents celebrated Christmas her family usually cooked food to celebrate but the applicant wasn't allowed to eat it so she just ate with her aunt and cousins.
r.The applicant saw that her parents were not happy as they felt the family is not complete. When they prayed the applicant didn't join them and just stayed inside the room.
s.When the applicant was in her first year of college she had a boyfriend from her religion. She tried to bring him home to meet her parents. They said that they didn't like him because he belonged to the applicant’s sect. They wanted the applicant to be with someone who is Catholic, especially because her father is an influential figure in the local church.
t.At the time she was studying for her Bachelor [degree] which was expensive and the government in her local place didn’t give any scholarships so the applicant had to pay the whole tuition every semester.
u.When her parents knew about her boyfriend they threatened her that she will stop going to school anymore and just stay at home to do household chores, so the applicant decided to break up with her boyfriend so she could continue studying and finish college.
v.In Australia she started a new life. She found a room to rent in [Suburb 1] and met [Mr A] there. He is a Muslim refugee from [Country 1]. He was nice, always smiling and good to talk to. The applicant felt like she found a friend. They developed a good relationship and would chat and go out. He was funny and made her laugh easily. The applicant felt that a new life was given to her when she met him. They decided to live together.
w.They were happy to see each other after work and school, eat together, and know each other more. They had a lot of differences in culture, attitude, age, food preferences and most importantly religion. The applicant is Catholic and [Mr A] is Muslim. The applicant does not cover her body with a Hijab and she eats pork, etc. But they accept each other for who and what they are. The applicant respects his beliefs and he does the same for her. They love each other. He gives the applicant everything he can to make her happy.
x.One day [Mr A] asked the applicant to marry him and she said yes. The applicant was very happy. She told her family about it but they said no. They said that they don't want another religion and she had made it worse to choose someone who is a Muslim. Her parents were very angry and threatened that if she came back to the Philippines, they will kill her. The applicant was shocked to know that they would do this to her.
y.Her father has been a close friend with the City [Official 1] in [City 1], He also knows some officers in the police department. He will use his connections to find and kill her if she goes back anywhere in the Philippines.
z.Her father has a gun in his room which he used when he pointed it at her. He takes it with him when he goes outside. Most of the neighbours are scared to do bad things to her family as they know her father will go after them. When the applicant’s uncle, her father’s [brother], was arrested for a rape case, her father just went to the police and talked to them so her uncle was let out of jail.
aa.The applicant fears for her life if she is forced back to the Philippines. She will be persecuted because of her religious beliefs and relationship with [Mr A]. Her family and community will never tolerate such a relationship with a Muslim guy. The authorities in the Philippines cannot protect her as her father has a lot of connections with them.
Departmental Interview
The following is a summary of the information provided by the applicant in her Departmental interview held on 19 May 2017:
a.The applicant’s lawyer committed an error when he described the applicant’s partner as ‘[Country 2 person]’ in her Protection visa application form. He is [Country 1 person].
b.She is not currently working but worked when she was on a Student visa. She was studying [subject]. She worked through an [agency]. Her boyfriend is financially supporting her. He has a [business]. Her boyfriend does not help support the applicant’s family. The applicant has no savings.
c.The applicant gave the delegate her parents’ name and address in Philippines. Her parents sell [product] in the market. They rent a stall in the market. Her siblings don’t work.
d.She last spoke to her family in January or February 2015. She spoke with her mother, about her tuition fee and about [Mr A]. She told them she needed her next semester tuition fee to be paid and her mother said she would do so. Then the applicant told her mother she has a boyfriend who is Muslim. Her mother told the applicant she had told the applicant previously she should have a boyfriend who is Catholic. She told her mother she loved her boyfriend. Her mother said don’t ever come back here if the applicant is with him. If she did then her mother would have her killed.
e.She lived in [Suburb 1] and gave the delegate her address. She lives with [Mr A]. The rent is $400 a week. They occupy only one bedroom so only pay $200.
f.The Delegate asked if she had ever sent money to her parents and the applicant responded yes when she was working. The last time may have been December 2014. She had not sent them money since then. The delegate put to the applicant that the department had AusTrac information indicating that she had been sending money to her parents up until early 2016. The applicant responded that her parents told her to give them back the money they had given her. The Delegate put to the applicant that the information she had provided was inconsistent. The applicant responded that in 2014 she sent her own money to her parents, but the money she sent them afterwards was their money which she just returned.
g.She learned about Protection visas when her parents stopped sending her the tuition fee. She can’t return to the Philippines. If she goes back her family will have her killed for having a relationship with a Muslim. In around April or March 2015 she decided she cannot return to Philippines.
h.Her father has a gun and connection to the government. It is her mother and father she fears in the Philippines, no one else. There is nothing else that she fears in the Philippines.
i.She had a relationship with a non-Catholic person in the Philippines. She had a relationship with someone from the Church of God and this caused a problem with her parents. Her family were so mad at her they cut her hair. Her father pointed a gun at her face. This was in 2008 when she was 18 maybe. The Delegate put to her she was born in [year] so she would have been [age] years old in 2008. The applicant responded this was what she remembered. She was insisting she go to that church because she was happy there.
j.Her mother borrowed money from her sister and told the applicant to go buy food with it. The applicant saw a man and spoke with him and he told her he was a relative. She was at home when her father put a gun to her face. Her mother was home too. He did this because of the money she lost when she met the man going to the market. The delegate put to the applicant that her parents were conservative Catholics so it was difficult to believe they would do this.
k.The applicant had no further problems with her parents. She could not attend her church if she had short hair.
l.Her father serves during the mass at the Catholic church sometimes. It is a voluntary position. If there is an event he attends so he can serve his fellow Catholics. The City [Official 1] is his friend and the police. She does not know the name of the [Official 1]. When her father has problems he goes to the [Official 1]. They became friends because the city hall is close to her family’s home. She asked her father about the [Official 1] but her father told her she was too young to understand.
m.The applicant’s father knows certain police but the applicant has not met or seen them. She does not know who they are. She just knows her father used his connections when his brother was charged with rape.
n.The applicant is not legally married to [Mr A].
o.The Delegate put to the applicant that her parents had financially supported her to come and study in Australia. She responded that they did this because she did what they wanted. She stopped attending her church because they cut her hair and she was not allowed to attend.
p.Wherever she goes in the Philippines her family will find her because of their connections.
q.After January 2015 the applicant changed her mobile number so her parents could no longer contact or threaten her.
r.She didn’t lodge her Protection visa until 2016 because she did not know what to do and was in shock. She did not know who would help her. She was afraid.
s.She had nothing more to say.
Delegate’s Decision
The Delegate was not satisfied that the applicant and [Mr A] were a legally married couple but accepted that they were in a relationship and that [Mr A] is Muslim. The Delegate found that the applicant’s claim to fear harm from her parents was not credible.
Information to the Tribunal
Pre-Hearing Submission, 23 March 2023
On 23 March 2023 the applicant submitted medical records regarding her pregnancy; a written submission from her representative; and a further written statement to the Tribunal in which she outlines the following:
When I talked to my mom on January 2015, I asked her to send me some money for my tuition fee for next semester (February 2015). As I do not have the funds (roughly $7000) to pay for it, she agreed to send it. Then we casually talked, I mentioned to her I have a boyfriend and he is from different country and a Muslim. When she heard me, her voice suddenly changed and sounded angry. She asked me “What happened to your mind? Why are you still stupid? Why don’t you understand we want you to have a relationship with same religion (Catholic)” I answered to her that I love this person ([Mr A]) I cannot keep following what you guys want, I am not a kid anymore I know what is right and wrong now. I obeyed everything you wanted me to do. She said, “From now you are not our daughter, Do not ever come back here in the Philippines and show us your face, I will use your dad’s gun to kill you and we will do everything to find you anywhere here to kill you, we will use our connections to easy catch you. We know you wont last in that country without our help”. You need to return to us every cents we spent to help you come in Australia! But I answered to them that not all the money came from them, my auntie (mom’s sister) helped for almost half of it and my dad even lend the money to his sister (she promised to return on time) which she didn’t return that’s why I had to find additional funds to use. I was angry how they talked to me down and disown me, I followed everything they wanted me to do.
After that phone conversation with my parents. I was shocked, scared and angry at the same time. I didn’t believe this would have happened to me especially in this foreign country that I arrived roughly 7 months only. I fear my parents. I know what they can do from what I experienced from them before when I was younger, I’m still holding the trauma they gave me when my dad held his unregistered gun to my face while my mom didn’t even blink an eye to stop and protect me, she even told me I deserved it. I was scared that they might keep threatening me and I decided to change my mobile number to avoid any communication from them, I cannot keep getting harass by my parents. Being here in Australia is already a struggle and this happening to me at the same time is too much to handle.
I fear for my safety if I ever send back to the Philippines because of my dad owning an unregistered gun and use his connections with his friend City [Official 1] of [City 1] together with the policemen. He always visit the [Official 1] in his house to support him in his campaign election and sometimes drinks alcohol with him and his subordinates. But when I tried to ask him about the [Official 1], he always says I’m still young for it and I should not involve myself in any of this. I remember there was a time when my uncle was arrested for rape case with a [age]year old girl, my dad only called the [Official 1] to help him get my uncle, later that day my uncle was released from jail without any bail.
I fear my parents if I ever come back to the Philippines they will kill me with their own hands if they see me or if I relocate anywhere in the Philippines my dad can easy call the [Official 1] and the policemen to find me, torture and kill me. My dad can easily pay them any amount to get it done as soon as possible to finish from me as an embarrassment in the family.
On [date] June 2016, [Mr A] and I went to Imam (Muslim priest) to get married to religion and we didn’t go to registry office to get a marriage certificate.
My mom asked me to return the money they spent to help me come here when she knew about my relationship with [Mr A], I was only working casually when I was on student visa. It was only enough for my basic needs. When [Mr A] gives me some money I sometimes save some of it to help me pay my debt to my parents.
When I converted to Church of God in Christ Jesus, my parents were not happy about it. They started looking for any small mistakes I do every day. There was a time when I got scammed when I was on the way to the market to buy our food worth for 1 week. That time my mom only borrowed that money PH Peso 1000 (30 AUD) from her sister so we can buy some food. The scammer stopped me and told me that he is my relative and he knows my parents and just came back from U.S and has some gift for us and I don’t know why but I believed this person he asked me if I have some money and I said I have money to buy food, he said don’t worry you can give me your money and I will buy you some food. I gave him the money and waited for him where he left me. I waited for maybe about 2-3 hours, but he didn’t come back. I just realized that he took the money and left. I was very scared and crying I didn’t know what I was going to do and what will I tell my parents how I lost the money; I know my mom only borrowed it from her sister so we can buy some food for a week. I came home and told them what happened, they were both very angry to me, I told them I am very sorry and they didn’t talk to me and ignored me for few days. There was a church schedule on a day, and I asked their permission so I can attend the church they answered to me “No, from now you will not attend any gathering on that church, you are not allowed to go anymore, when you converted to that religion everything becomes a disaster here in our family, this religion makes you stupid!’’. I was crying and begging them to let me attend the church. And to my surprise, my dad quickly took his gun and pointed it out to my face telling me “From now you are not allowed to attend any gathering on that religion!” I stood there and looked at my mom waiting for her to do something, but she done nothing she even said that I deserve it and I need to learn to follow what they want me to do.
When I was still studying, they always threaten me that if I do not follow what they want they will not let me finish my studies; even when I made small mistakes at home, they always scare me to drop off the school. Even the money for my tuition fee it wasn’t coming from them, my auntie helped me to financially in school, but they still threaten me anyway. I followed whatever they say to me to make them happy and proud of me.
When I was new to Australia and the next school semester was about to start in February 2015. I asked my parents to help me for the tuition fee as I don’t have the funds with me, but they didn’t help me, they threatened me instead. I talked to our school adviser [and] told her I was not able to enrol for this semester because of financial problem. She told me if I didn’t continue the studies the school must have already reported you to immigration for not enrolling. That’s why I thought I was already unlawful non-citizen that time.
I didn’t know what to do and I was new to this country. I was scared to ask for advice, I only do self-research and not everything I can find on internet. I do not have money to pay for migration lawyer or experts on this field that’s why it took me long time to seek help and applied for protection visa.
I believe the Church of God in Christ Jesus is the true religion unfortunately I was not able to still be part of it because my mom cut my hair and forced me to eat the food they cooked for catholic festivals, forced me to wear jeans instead of long skirts. I was only allowed to pray in catholic.
Tribunal Hearing, 29 March 2023

The applicant appeared before the Tribunal on 29 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [Mr A].
The following is a summary of the information provided by the applicant at the hearing:
a.She and her husband married in front of an Imam. They have not yet registered their marriage. They plan to do so before their child is born. The [B] is due on [date].
b.She and her husband live together in [Suburb 1]. Her husband has a temporary protection visa and may be eligible for a permanent visa.
c.The Tribunal asked the applicant if she has a religion now. She responded that she would say she is a Christian Catholic. She is not attending church. She attended church once but felt like something was missing. Since her experiences with her conservative Catholic family in the Philippines she is wary of what religion does to people. She has lost faith in Christian Catholics. She believes in the Christian bible and Jesus Christ but she no longer reads the bible. Religion was important to her before she came to Australia but she has since lost some of her faith. She has doubts. Her doubts are about whether God is still there and whether God will help her.
d.Her relationship with her husband began in 2014. Her husband is Muslim. He prays several times a day and occasionally attends the mosque. He is observing Ramadan. The applicant is not interested in adopting Islam but she can see there is good in Islam despite other people’s negativity. She can see that her husband is a good person.
e.She has met her husband’s friends. She has not met his family because they are overseas and only speak in Arabic. He talks to his mother in [Country 2] and his family know she is pregnant. She thinks they approve of her and her husband’s relationship.
f.When the applicant told her family she was in a relationship with a Muslim man her mother told her she would use her father’s gun to kill the applicant. Her mother will do this because her family are very conservative and want everything to be perfect. They think the applicant is a disappointment. Her parents will kill her because they want everything to be perfect.
g.The Tribunal asked the applicant if her father had ever been physically violent to her and she responded yes one time he waved a gun in front of her face. He is very aggressive and would slap her and hit her with his belt when she made mistakes at home. He would also hit her brother and sister but not as much.
h.Her father would be [age] years old now. She does not know if he is still alive.
i.If she tried to live away from her parents they would hunt and find her. They have not tried to find her in Australia because they have no connection here. They have connections in the Philippines. Her father has a connection to the local [Official 1] and the police. Her father can bribe his connections to find the applicant in the Philippines. He works at a stall in the markets. Her mother has a little more money than her father because she inherited some from her parents when they passed away. The applicant believes her parents would spend their money to bribe people to find and kill the applicant.
j.The applicant continued to send money to her family in the Philippines until 2016 because they told her she had to repay their loan to her. The applicant sent money to her family in the Philippines up until some time in 2016 because she was working casually then. She was trying to repay this as she did not want her problem to get any bigger. She still owes them about $10,000.
k.The Tribunal asked the applicant why the remittal records obtained by the department show that her mother transferred money to the applicant in September 2015. She responded that she can’t remember.
l.The applicant uses social media and she has a [social media] site. She gave the Tribunal the name of her [social media] account and stated she had no problem with the Tribunal viewing her [social media] account.
m.The Tribunal asked the applicant if any of her siblings had children and she responded no. The Tribunal asked her if she thought her parents would like to have a grandchild and she responded yes but not one from a different religion.
n.If she had to return to the Philippines she hopes her husband would go with her. However he can’ t because of her problem with her parents.
o.She would be able to live in another city in the Philippines if her parents do not hunt her down.
p.The Tribunal put country information to the applicant about inter-faith marriage and anti-Muslim sentiment being at a low level in most parts of the Philippines. The applicant responded that there are Muslims in the Philippines but the majority of people are Christian Catholic so she thinks it is still a big problem because of religion.
q.She is scared her family can easily find her because of their connection to the [Official 1] and police. She sees on the television that there are too many rape cases and people pay the police to do that job. The police rob the people. The police rape and kill people. It is coming from the police. The police may rape and kill her if the order comes from her parents to do so. They don’t care and will do what they want.
The following is a summary of the information provided by the applicant’s husband at the hearing:
a.He and the applicant were married in 2015 by an Imam. They live together in [Suburb 1]. His wife is due to give birth to their [B] in about [number] months’ time.
b.Most of his family are in [Country 2]. His father is in London. He thinks his father has a permanent visa there but does not know how. His father has not told [Mr A] the whole story. His father married another woman and has another family with her there. [Mr A] has not told his father about the applicant and her being pregnant. He does not communicate with his father. He has told his mother and she is happy. She is in [Country 2]. She has no residency or citizenship there. She has no legal status because she has no documents.
c.The applicant explained a little about her problems to him. She told her parents she would marry him and they did not accept this and threatened her. He has not spoken to them as they do not accept him.
d.If they were in the Philippines he would not be able to protect the applicant and she cannot protect herself. Her parents will harm her because they don’t accept him. There are many reasons, religion is just one reason. They don’t accept the idea of someone not from their family or religion.
e.He does not know of the applicant sending her family money after she told them of their relationship. He doesn’t think she did.
The following is a summary of the further information provided by the applicant at the hearing:
a.Her father would hit her in the Philippines even for small mistakes. The Tribunal asked her if she could recall one of the more serious incidents. She responded that once she was walking home with some other children and playing. Her dad just shouted at her and pushed her into the bushes. She didn’t do anything wrong. At times she doesn’t know where his anger is coming from.
b.She can’t go anywhere in the Philippines because of their connections to find her and they would hire someone to do harm for them.
Post-Hearing Submissions
On 30 March 2023 the Tribunal wrote to the applicant under s 424A of the Act, inviting her to comment and respond upon information in financial transaction records indicating that on 24 September 2015 her mother sent her AU$415.00.
On 5 April 2023 the applicant’s representative emailed the Tribunal with a message stating:
“The applicant advised that she had no idea why her mother sent her the amount specified in the tribunal letter, the applicant confirms that she sent this money back in the same day as she was not sure why her mother did that in the first place.”
Country Information
DFAT’s most recent ‘Country Information Report’ on the Philippines, published in August 2021, does not contain any reference to inter-faith marriages. In relation to Christians and Muslims the report states the following:
Christians
The Philippines is a majority Catholic country with significant numbers of non-Catholic Christians. The Catholic Church has a significant influence in daily life, although it is not as politically active as it was in the past, and there are signs its influence may be waning. While the Catholic Church is seen as conservative on many social issues such as contraception or LGBTI rights, many non-Catholic Christians, especially evangelical Christians, may be more conservative. Views and beliefs within the church are not necessarily uniform and Filipino society is generally conservative even on matters about which the churches do not take a stand.
Some leaders of the Catholic Church have been outspoken against the Duterte government’s war on drugs. On 30 January 2017, the Catholic Bishops’ Conference of the Philippines (CBCP) issued a public statement opposing the war on drugs. On 18 February 2017, the CBCP held a prayer rally in Manila where around 20,000 people gathered to register their concerns about killings related to the drug war. Religious leaders who criticise the government or its policies have faced harassment and violence.
Former members of Iglesia ni Cristo have alleged senior church leaders are involved in serious corruption. Church figures have been accused of kidnapping and murder, and some former members have fled overseas. The church is politically influential. In February 2018, President Duterte named Iglesia ni Cristo Executive Minister Eduardo Manalo his Special Envoy for Overseas Filipino Concerns.
DFAT assesses that, as followers of the majority religion, Catholics and other Christians do not face discrimination or violence on the basis of their faith. Non-Catholic Christians can practise their religion freely. Although the Church is influential, those who disagree with church teaching on social issues face a low risk of societal or official discrimination.
Muslims
Most Muslims reside in the southern region of Mindanao and are members of ethnic minority groups. Some indigenous groups have syncretic Islamic characteristics without necessarily being Muslim. Islam is the majority religion in the five provinces of Western Mindanao that make up the Bangsamoro Autonomous Region of Muslim Mindanao (BARMM). Some Muslims have also moved to large urban centres such as Manila and Cebu and formed communities in those cities.
Sharia – Islamic law – is practised in part in the BARMM and Muslims from outside the BARMM can travel there to access Sharia courts. Sharia applies to personal laws such as marriage, custody and inheritance, but has no jurisdiction in criminal, financial or property matters. The Presidential Decree No. 1083 states that Muslim personal laws apply only to Muslims, and where Sharia conflicts with general laws, the latter prevail.
Some Muslim communities in the south, particularly in rural areas, will refer financial, criminal or property matters to community elders or councils which may informally provide Sharia remedies or punishments. The structure of these councils depends on the local tribe and, in some cases, may simply involve discussions among two elders.
The long history of conflict and secessionist activity in Mindanao has led to a level of distrust between the Christian majority and the Muslim minority. The Office of the President’s National Commission on Muslim Filipinos (NCMF) reported no formal incidents of discrimination against Muslims in 2019, but stated that subtle forms of anti-Muslim societal discrimination existed throughout the country. While some Muslim groups have expressed concern the Anti-Terrorism Act may be used to discriminate against them, DFAT assesses this as unlikely due to the safeguards built into the act.
DFAT assesses that anti-Muslim sentiment outside of majority-Muslim areas does exist, but it is generally low-level. In Muslim majority areas, Sunni Muslims face no risk of discrimination or violence on the basis of their faith.
DFAT’s 2017 Country Information report on The Philippines contains the following:
Interfaith marriage - There is no official data on the incidence or nature of interfaith marriages in the Philippines and given the majority of the population are Roman Catholic, interfaith marriages are relatively rare. Male and female members of Iglesia Ni Cristo (INC) Christian Church are required to either marry from within the membership, or have their spouse join INC within six months of marriage. Based on anecdotal information DFAT understands that if a Muslim woman marries a non-Muslim man, the man would have to convert to Islam. Conversely, if a Muslim man marries a non-Muslim woman, the woman would not need to convert but their children would automatically be Muslim.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted her Philippines passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied she is a citizen of the Philippines. The Tribunal assesses the applicant’s claims against the Philippines as her country of nationality and receiving country.
Credibility
The applicant claimed she joined a non-Catholic church in the Philippines when she was around [age] years old but faced active resistance from her parents who eventually forced her to stop attending the church. The applicant has been reasonably consistent about this claim and the Tribunal gives her the benefit of the doubt regarding the core aspects of this claim, namely that she joined a non-Catholic Christian church but was forced by her parents to stop attending it.
The applicant claimed that her mother cut the applicant’s hair so that she would not be allowed to attend her church. She also claimed that her father pointed a gun at the her to tell her to stop attending her church. Given that the applicant was still a teenager who lived with her parents and under their control, and her parents’ strong opposition to her church, the Tribunal considers that, although extreme behaviour, this may have occurred on one occasion respectively. The applicant has consistently written and spoken of these incidents. The Tribunal therefore gives the applicant the benefit of the doubt that these two things did occur.
The applicant has stated that she has grown away from religion since coming to Australia; that she now identifies as Catholic Christian; but that her Christianity is not as important to her as it was in the Philippines because she has lost some of her faith and has doubts about God. The applicant gave this evidence candidly at her hearing and the Tribunal accepts it.
The applicant claimed late in her Tribunal hearing that her father would hit her when she was growing up in the Philippines. She did not indicate or make any reference to such abuse from her father in her Protection visa application or her subsequent written statement. For example she made no mention of any physically violent reaction from either of her parents when she lost the large sum of money they had entrusted her with. When the Tribunal initially asked the applicant if her father had been violent to her she responded “once” and then referred to the time he pointed his gun at her. She later changed her evidence to state he had hit her a lot. The Tribunal asked the applicant in the hearing to give an example of an instance when her father was most physically violent and she spoke of a time when she was a schoolchild and he pushed her into some bushes for unknown reasons. Given this would have occurred when she was a child, that it did not involve the applicant being hit, and that she had not previously mentioned any actual physical violence by her father, the Tribunal does not accept that he did hit the applicant when she was growing up in the Philippines.
The Tribunal accepts that the applicant is in a marital relationship with a Muslim man in Australia and that they have had a religious marriage here. The Tribunal accepts that they live together and that the applicant is pregnant with her partner’s child and due to give birth [soon].
The applicant’s claim that she is estranged from her family in the Philippines and that they wish to kill her because of her relationship with a Muslim man in Australia was contradicted by her evidence in her 2016 Protection visa application that she remained in contact with her family, that she continued to send them money even after she declared her relationship to them, and that her mother also sent her money after this.
The applicant has explained that she continued to send her parents money because they insisted she pay back money they had given her to study in Australia. She also stated that she does not know why her mother sent her money in September 2015. The Tribunal does not accept these explanations. There is no plausible reason why the applicant, who had little money in Australia and was not financially secure here, would go to such efforts to send money to her parents if they had made it quite clear to her that they wanted, and intended, to kill her. There is also no plausible reason why her mother would send the applicant money in Australia if the applicant’s mother wanted to kill the applicant.
The Tribunal therefore does not accept that the applicant is estranged from her parents and that they have threatened to kill her if she returns to the Philippines.
Fear of Harm in the Philippines
The applicant stated at her Tribunal hearing was that her only fear in the Philippines was of her parents who want to kill her because she has married a Muslim man in Australia.
The Tribunal has accepted that the applicant joined a non-Catholic church in the Philippines and was forced by her parents to stop attending that church; that since coming to Australia she now identifies as a Catholic but religion has lost importance to her; and that she is in a marriage relationship with a Muslim man in Australia.
If the applicant returns to the Philippines it is very possible that her parents would not be favourable to her developing some disinterest in the Catholic faith and marrying a Muslim man in Australia. The Tribunal is not however satisfied that their disapproval would take the form of seriously or significantly harming the applicant. The applicant was not able to establish to the Tribunal’s satisfaction that that her parents had such propensity.
While the Tribunal has accepted that the applicant’s father pointed a gun at the applicant in the past, this is vastly different from a wish to actually inflict physical harm upon the applicant or to shoot her. The available country information also does not indicate that this is a potential outcome for children who oppose their parents’ wishes relating to religion and marriage. Her parents’ disapproval could motivate them to withdraw support for the applicant, including not letting her live with them as well as not providing her any financial or emotional support. However the Tribunal is not satisfied there is a real chance they would seriously or significantly harm her. The Tribunal is also not satisfied there is any real chance the applicant’s parents would try to locate her in another part of the Philippines to try to do her harm.
The applicant is now [age] years of age. She is married and about to give birth to a child. She would be returning to the Philippines as a mature woman who has made an independent life for herself, with a family, in Australia. She does not need to live with her parents. She has also demonstrated that she is able to live financially independently from them. She also confirmed that she would be able to live in another part of the Philippines, away from her parents. The Tribunal considers that the applicant would be able to live away from her parents in the Philippines and without their support, with no real chance of incurring and serious or significant harm.

The country information also indicates that while there may be some disapproval from some in the community that the applicant has married a Muslim man it is not at the level that would rise to serious or significant harm. There is also no indication from the applicant that she faces serious harm others in Philippines society because she has married a Muslim man. On the basis of the information before it the Tribunal is not satisfied that there is a real chance the applicant will face serious or significant harm from Philippines society because she has married a Muslim man.
On the basis of the above reasons and findings the Tribunal is not satisfied the applicant has a well-founded fear of persecution in the Philippines as defined by s.5J of the Act. The Tribunal is also not satisfied there is a real chance she will be subject to significant harm on return to the Philippines.
Concluding Paragraphs
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The applicant’s partner holds a Protection visa but it is a temporary Protection visa of class XD. The Protection visa the applicant is applied for is a class XA visa. She therefore does not satisfy s 36(2)(b) or s 36(2)(c) 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 of the same class as the one she has applied for.
Accordingly, the applicant does not satisfy the criterion in s 36(2).
Ministerial Consideration
Having regard to the applicant’s circumstances and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 417, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
The Ministerial guidelines provide that those cases with strong compassionate grounds, which, if not recognised, would result in serious and ongoing harm, irreversible harm, and continuing hardship to an Australian citizen or permanent resident, may be considered. Furthermore, circumstances not anticipated by relevant legislation, clearly unintended consequences of legislation, or the application of relevant legislation leading to unfair or unreasonable results in a particular case should be taken into account. Additionally, Australia’s obligations under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights may be considered.
The applicant's partner currently holds a Temporary Protection visa and is expected to satisfy the eligibility criteria for a Subclass 851 Resolution of Status visa. Additionally, the applicant's child, who is due to be born soon, is also likely to meet the criteria for a Subclass 851 visa, based on the partner's visa status. The applicant’s partner and child should therefore obtain permanent residence in Australia. The applicant would be able to establish significant ties to the Australian community. Separation from her family unit would result in ongoing hardship and irreversible harm to each of them and not be in the best interests of her child, soon to be born.
Furthermore, the applicant appears to be ineligible for a grant of a permanent residence visa under the criteria for a subclass 851 visa, even as a member of her partner’s family unit. According to Parliament’s Explanatory Statement for the amending legislation, the Migration Amendment (Transitioning TPV/SHEV holders to Resolution of Status Visas) Regulations 2023 (the Amendment Regulations) the intention was to amend the Migration Regulations so as to provide “a clear and permanent pathway to resolving the status of TPV and SHEV holders … who engage protection obligations” and “members of the same family unit as someone who does”. This should include the applicant, however the method of her arrival to Australia may result in her being unlikely to meet the relevant criteria for a subclass 851 visa. If this is the case then it is arguable it is a situation of the “application of relevant legislation leading to unfair or unreasonable results”.
Based on the applicant’s circumstances, including her partner’s status as a holder of Temporary Protection (XD 785) visa and eligibility for a Subclass 851 Resolution of Status Visa, as well as her pregnancy with their child, and in accordance with the ministerial guidelines relating to the Minister’s discretionary power under s417, the Tribunal respectfully refers this matter to the Department for ministerial consideration.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa McAdam
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.
…

[2023] AATA 2758

26 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Jurisdiction