1719348 (Refugee)

1719348 (Refugee) [2023] AATA 3046 (13 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1719348
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Melissa McAdam
DATE:13 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 13 June 2023 at 11:25am
CATCHWORDS
REFUGEE – Protection Visa –Philippines – experienced inhuman treatment and physical harm from cousin – sexual orientation as a homosexual – membership of a particular social group – 'Lesbian in the Philippines' – health and financial issues – anxiety disorder and a depressive disorder – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 July 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 22 October 2015.
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 Manila in the Philippines. She submitted a copy of her Philippines passport.
b.She is single. She lived in Cabuyao, Laguna in the Philippines.
c.Her mother is living in the Philippines.
d.She departed the Philippines in December 2012 and arrived in Australia on a Visitor visa.
e.She left her country because she felt her life was in danger. She experienced inhuman treatment and physical harm from her cousin [Mr A]. He threatened and assaulted her on a regular basis.
f.She experienced physical harassment in school and society because of her sexual orientation as a homosexual.
g.She experienced maltreatment from her other relatives who humiliated her in public and spread false information about her to destroy her reputation.
h.If she returns to her country she thinks she will again suffer painful and traumatic experiences of family abuse, physical and verbal harassment because she is homosexual.
i.Her life will be worthless and she has no hope or future. Her relatives have already damaged her dignity and personality. She cannot build a good future because her reputation is not good in the eyes of society. She will again suffer from anxiety and depression.
j.She suffered severe depression which impacted her ability to have a normal life. She has low self esteem which made her unable to defend and protect herself. She decided to leave her country to Australia. In Australia she has become happy, healthy, confident, secure and full of dreams.
k.She is scared to go back to the Philippines.
l.Her cousin [Mr A] threatened and assaulted her because he has a sadistic violent nature. He considers the applicant a disgrace and bad luck because she is a child born out of wedlock and homosexual. She was bullied by people in society.
m.She sought help from the Barangay Justice officials. She also went to the house of a former community councillor who told her to make an amicable settlement and reconciliation.
n.She tried to move to another province Bicol but it was very difficult for her there due to language barriers and difficulty finding work. Wherever she goes she can be persecuted as a homosexual.
She submitted copies of the following documents with her application:
-The applicant’s Philippines passport.
-The applicant’s identity cards from the Philippines
-The applicant’s Birth Certificate
-An Affidavit from a named person who in 2003 witnessed the applicant’s cousin [Mr A] challenge the applicant to a fight while holding a pair of scissors. At the time the applicant was [age], “skinny and small” while [Mr A] was “a big fat man”. [Mr A] shouted at the applicant that he would kill her. He tried to punch the applicant but his mother then collapsed so he stopped fighting.
-An Affidavit from the applicant’s mother, describing herself as a ‘single mother’ and stating that she was present in January 2003 when [Mr A] pushed the applicant. He then tried to continuously annoy her and had a heated argument with her. He went to a kitchen and took a knife and tried to stab the applicant but his wife took the knife from him and begged him to stop. The applicant’s mother then told the applicant to run and protect herself.
-An Affidavit from a named person who states she has known the applicant since the applicant was a child. The applicant is an illegitimate child who grew up with her mother. They lived under one roof with her aunt and cousins. The applicant was verbally abused and experienced degrading treatment from her aunt and cousins. She was hospitalised several times due to a weak immune system. The applicant turned out to be homosexual when she reached her teenage years and was further despised and rejected by her immediate family.
-The applicant’s medical records showing hospital admissions.
-The applicant’s school transcript and other education records.
-Photographs of the applicant as a teenager and in her twenties.
With her application she submitted a typed statement in which she wrote:
I am [name], was born on [date], a Filipino citizen, never been
married and no children. I am currently residing in Australia illegally however, I arrived in Australia on a valid visa and I was immigration cleared on my arrival through e676 tourist visa that I have applied at the Australian Department of Immigration in Philippines and was granted to me on 16 of February 2012 that was valid for 1 year and multiple entry.
I am applying for a Protection Visa subclass 866, and I am writing this statement as a support for my protection claims.
I am a child out of wedlock of my Mother [name] to a married man [name], and it is one of the many reasons why I encountered persecutions and harm in my country.
That my relatives consider me as a shame and disgrace of the family for being an illegitimate child and grew up as a HOMOSEXUAL.
I grew up under the custody of my mother and used to live with my Auntie, [name],
and her children [Mr A] and [Ms B] in one house. However, I never felt love from them, despite, they treated me as their slave and experienced maltreatment from their hands. They have a bitter feeling towards me, as they consider me as the bad luck of the family when they encountered financial hardship when my mother got pregnant to me because she needed to leave her job to avoid my father after she found out that my father is married and still committed to his family. It is a big loss for the family because my mother is the breadwinner that supports the financial needs of her sister, niece and nephew.
I have experienced physical and verbal abuse and suffered degrading treatment from the hands of my relatives. These treatments became worst when I started to show up my real sexual orientation being a homosexual. I changed my appearance, to look like a man. This gave me a bad reputation, I have been the topic of all the gossips that damaged my personal dignity and have been bullied in our community and school. I experienced physical and verbal harassment from the people around me for being a homosexual. Even in school, I experienced being insulted every day and my things were being destroyed and stolen. All these experiences affected my self-esteem, I've had an inferiority complex due to trauma that affected my speaking ability and interacting with people. It also affected my studies because in every school I enroll, I always experience the same persecution, inhuman and degrading treatment. As a result, I have been enrolled in 4 Universities and did not finish any course. However, I still maintained my good moral character in all the schools and universities that I have enrolled, despite of my traumatic experiences because my mother kept telling me that the only wealth we have is a good heart and good manner that I should keep to make myself worthy to achieve my dreams.
Despite of not finishing my studies, I still managed to take two short courses that I have studied for 7 days each course and decided to apply for a job rather than to continue my studies but all my job applications were unsuccessful as I always fail to answer all the job interviews confidently due to inferiority complex.
I was very depressed and felt that my life is worthless as my relatives and people around me
made me feel that I am just burden in the family. They kept destroying my reputation by spreading false information about me in our community regarding my sexual orientation. They kept making trouble with me, and humiliate me in public.
There was a time that I have decided to ask help from the Authority when I received a life threat
from my cousin [Mr A] on the 19'th of January 2003 around 7:30 pm that he will kill me. And on the next day, the 20'th of January, [Mr A] committed attempted assault against me by attempting to stab me, I just ran to avoid being stabbed by the knife he is holding. After those incidents, I went to the house of one of the Community Justice Officials, [name] to seek help from him, however, he just told me that the procedure to resolve family issues and physical harm within the family is through amicable settlement because as stated in Family Court Republic Act No. 8369, the courts shall preserve the solidarity of the family and provide procedure for reconciliation. This Family Act did not work to achieve peacefulness in my life despite, it made my life lonely and hopeless.
I have tried relocating to Bicol, one of the provinces in Philippines, however, due to language
barrier, I found it hard to interact with people that made myself more depressed and experience
Anxiety. I also found it more difficult in looking for a job in the provinces that made my life more
hopeless.
I have experienced Severe Depression that made my Immune System weak. I have been
admitted to the hospital frequently and have been sick every month due to high fever from bacteria and mosquito bite infections. Having a poor health, due to depression, cost us a lot of money that made us more suffer in financial difficulty.
However, after all the trials we have encountered in life, my mother still got the chance to obtain a good job in [a workplace] and deployed as an [Occupation 1] in our Town. My mother then endorsed me to one of the supplier in the [workplace] to work for them seasonally to manage extra projects and being paid through commissions. I then got the chance to save money and apply for a visa to look for an
opportunity to relocate in other country where I can have a peace of mind.
As a success, I have been granted an e 676 tourist visa on 16'th of February 2012 and arrived in Australia on March [date],2012. I've had a different feeling ever since I stepped my feet in Australia, even though I just stayed in Australia from [date] of March 2012 to [date] of May 2012 on my first travel due to 3 months stay visa condition.
Australia gave me hope and I realized that there is still a chance for me to achieve a peaceful life. I tried to look for any opportunity for me to stay longer in Australia but I failed do it. And the sad thing is I needed to go back to Philippines due to my Visa condition. I travelled back to Philippines on [date] of May 2012 and faced again the life of persecution and back to suffering depression and Anxiety. My immune system became weak again and have been admitted to the hospital and been sick very often due to depression. After 6 months of suffering from depression and poor health, I then decided to go back to Australia, holding a valid e676 multiple visa that was granted to me on my first travel to Australia that is valid for 1 year.
Australia did not, disappoint me, because this country gave my life back to me, although I find it hard to look for a job here due to not having a work permit and tax file number here in Australia, I still managed to survive because My friend [name] who used to be my
classmate since 1999 helped and accommodated me as he lives in Australia as Permanent Resident. He provided all my needs as he knew how I suffered persecutions and Trauma. He gave me hope and strength. He became an inspiration to me in achieving my goal as he also suffered inhuman and degrading treatment through the hands of his father but I can surely say that Australia changed his life for better and I believe that my life can also be change here in Australia. Ever since I live in Australia, I became confident, joyful, secured and healthy. I then completely proved that the cause of my poor health when I was in Philippines is depression because ever since I lived in Australia, I have never been sick, despite, I became healthy, active and energetic. I easily recovered from depression and got the chance to build dreams for my good future that is impossible for me to do achieve in my country.
I then felt fear to go back to Philippines and go back to my miserable life so I decided to overstay my visa and become an illegal immigrant in Australia. My visa expired on, [date] of June, 2013 after the validity of the e676 bridging visa I have applied here in Australia that was granted to me on 22'nd of March 2013. I felt so guilty after I overstayed my visa because I disobeyed the immigration rules and I felt that I am a bad person, but I cannot help, because I couldn't feel any strength and hope that I would be able to bear again the life I had in my
country. And I can't see any good future for me in my country. If I will go back to my country, my life will just become miserable because aside from the possibility that I will suffer again from persecution, there is no chance for me to have a job in our country due to age limit requirement and the chance that I might be having a poor health again. I am getting old and I am dreaming that one day, I will be able to build a good future, and I believe, I can have a good future here in Australia.
I'm sorry if I disobeyed the Immigration rules. I hope it is still not too late to correct the mistake
that I have done. Please give me a chance to become a Lawful Citizen here in Australia and correct my mistake. I am begging you to Please consider my application.
I prepared my protection visa application by myself and didn't ask help and advice from anyone
instead, I just followed the procedures and information I have gathered from I am a bit worried that there may be a possibility that the documents I provided may be insufficient as I am not knowledgeable enough in processing a protection visa. However, I am willing to submit any additional documents needed to support my protection claims in case I failed to provide any of the documents needed to complete my application. …
The applicant subsequently submitted another typed statement in which she wrote the following:
I left my country because I want to flee from my miserable past and to free myself from persecution, degrading treatment, maltreatment and physical abuse that made me feel to have fear to reside and return to my home country. I just want to elaborate more about my two claims for protection. My first claim is the danger, threat and attempted assault that I faced in the hands of my cousin [Mr A] that him and his mother and sister has a bitter feeling towards me since I was born as they didn't accept me in the family because I am an illegitimate child and my mother lost her good Job her because she got pregnant to me that made my mother to completely leave his Job to avoid my father because she found out that my father
is married and has kids. Losing my mother's Job affected the family of [name] because my mother is the bread winner in the family and this bitter feeling they had for me pushes them to maltreat me. I suffered verbal abuse and physical abuse most of the time from the hands of [Mr A]'s family ever since I was a child.
When I started to become homosexual and look like a boy, [Mr A] then became more violent that he threatens and harass me on daily basis that led him in attempting to assault me. You might wonder why my mother let this happened to me. Actually, my mother was not always around because when she left her Job, she started to sell [products] by walking around house to house to earn for a small money for a living. My mother is aware about the maltreatment of his family to me but we cannot move to different place because that time we don't have money to move to different house and so my mother just tried to pretend it is okay without her knowing that My personality has been affected, I have had an inferiority
complex and because of this, I became prone to bully. And here it started my second claim.
When I grew up and turned to be a homosexual and grew up having an inferiority complex, I experienced being bullied at school and usually outside the school. I experience being insulted, being punched, kicked, hurt physically and verbally. Most of the people who witnessed what happened to me, instead of helping or showing sympathy* they Just laughed and they maybe think it is Just part of teenage life for them to become silly and make fun with people but honestly, it affected my whole being so much. Maybe in the eyes of people it is a minor thing but for me it is a nightmare that until now I can feel how it affected my personality. I lost my
confidence and focus in achieving my dreams. As you can see on my photo that I attached on my application where I was wearing a girl's school uniform in a boy look, you can notice at the back there were medals and photos of me while receiving honours and awards showing I have been top and achiever in school ever since I was a child.
When I started to experience physical harm, it affected my studies as I was always depressed and out of my mind all the time. When I started to go to university, I still cannot understand why
I always face persecution and being bullied for being a homosexual, maybe because I act weird because mu personality has been affected by traumatic past. I moved to different universities but still my mind cannot focus anymore due to depression and fear. These are the reasons why I left my country I am longing for a place where I can start a new life and live normally. When I first came to Australia, I found the place I have been looking for. In my almost 3 months stay in Australia, in 2012, it made me realize the real meaning of life, when I travelled back to Philippines because my visa was about to expire. My world turned into darkness, I cannot feel the safety and peace of mind that I felt when I was in Australia I have been sick since then and cannot handle my life. I fear of what will happen to my condition in my country as I experience
severe depression, I was always sick and it cost us a fortune. I cannot find a Job nor continue my studies.
For these reasons I left my country and travelled back to Australia again on [date] of December 2012. Since then my life started to live normally. No more sickness. No more persecution, no more maltreatment, no more that my claim for protection is not as serious at what a normal asylum seeker experience. My claim may sound weak or Just commonly happens in life and my claim cannot be easily proven as my the dangers, persecution, degrading, treatment and inhuman treatment that I experienced was happened long time ago and I really struggled on how to find too much evidence of my claims. All I can provide are the proof of the damage into my life that only Australia can help me to recover and rebuild the damage in my life.
Departmental Interview, 18 May 2017

The following is a summary of the information provided by the applicant in her Department interview:
a.She has aunts and uncles and cousins in the Philippines.
b.Her mother is sick and old but still works in an office.
c.She lived at her home when she returned to the Philippines after her visit to Australia.
d.She did not know what a Protection visa was when she first came to Australia. She had a miserable life in the Philippines. She experienced maltreatment and physical and verbal abuse from her relatives in the Philippines.
e.She has been a homosexual since a child. Her family consider her a disgrace and don’t want her. They don’t love her because her mother was a good earner and supported the family until the applicant was born. She was bullied and harassed at high school. At [age] she started showing she was homosexual by wearing clothes like a man and cut her hair. She told her mother who was angry a little but she could not do anything.
f.The people in the family curse her. She never felt love from anyone except her mother.
g.Her cousin [Mr A] is violent. He lives in the same house as the applicant. Every day he is threatening and one day he went at her with a knife.
h.She came to Australia in 2012 and found what she was looking for. When she returned to the Philippines she was sick and her immune system went down. When she is in Australia she is healthy. Every week in the Philippines after her return there she was depressed.
i.She could not do well in her studies in the Philippines because of her environment there but she is doing well in Australia.
j.She can’t move to a new part of the Philippines. Her mother cannot move. The only place she can go is Manila because they speak the same language. But it is too expensive in Manila.
k.Her mother tried to support the applicant in Australia. She has diabetes so cannot do much.
l.There is a compound with separate living places for people in the family.
m.[Mr A] has plenty of time to make trouble and cause problems for others. He has friends.
n.She met a girlfriend when she studied [subject]. The woman went to [Country 1]. They talked together by vivo and she visited the applicant in the Philippines for a month. Then their relationship continued long distance. The applicant felt she loved her then, but not now. She was attracted to her. When they broke up the applicant felt she didn’t want a relationship with anyone. They were together for maybe one year. The applicant has some videos of them together. They broke up because it was long distance. She doesn’t really know the reason. The other woman was trying to avoid the applicant and the applicant found out she had a man.
o.She has not had any relationship since and has not become involved in a homosexual scene in Australia.
p.Before she joined some sites but no one responded to her. When she goes out she is shy. Sometimes people ask her her situation and the applicant feels bad because they have a good life already. Sometimes she has a crush. But the applicant feels small especially if the person has a good job. She feels bad to say she doesn’t have a job.
q.She doesn’t usually mingle with others. She was like this in the Philippines too.
r.In the Philippines they judge you on who you are, unlike here.
s.In the Philippines her mother had [connections] so the applicant had a contract for work in a [workplace]. She [did specified job]. She worked from home.
t.She was [age] when she left the Philippines.
u.The month her partner was with her in the Philippines they lived together in the applicant’s house. They lived like husband and wife. This was in 2009. They shared everything. They went out with friends and the applicant’s mother. She just told her mother the woman was her friend. The applicant told her friends they were in a relationship.
v.When her partner returned to [Country 1] she started to ignore the applicant. One day she told the applicant she was living with a man. It’s too much for the applicant to handle and she does not want a relationship.
w.She noticed that she was interested in boys’ clothes. At [age] or [age] she started to have crushes on girls but she can’t talk as she is shy. She found it easier to express her feelings on internet chat.
x.She is in love with a person in Sydney but has not told her as she does not want to get hurt.
y.She had a crush on her classmate [name] in the Philippines and they exchanged letters. It was not like a relationship. She was a straight girl. The applicant felt like a man when she interacted with the girl. The applicant felt like a lesbian because her heart was beating when she talked to her.
z.The applicant had lesbian and gay friends in the Philippines but not in her home area. It was in her school locale. The applicant joined [a sport] team and most of the people on it were homosexual. They would talk about girls and girlfriends. There was a girl the applicant fell in love with but she was in a relationship with another girl.
aa.The applicant does not drink so she does not go to bars in Sydney. She is not comfortable in crowded places.
bb.There are some gay groups in the Philippines. The applicant joined one but did not enjoy it because it is not particularly lesbian. It is called [name]. It is an internet chat room.
cc.She doesn’t have homosexual friends in Australia. She doesn’t have many friends here. She just goes out with the people in her house. She has learnt to live alone as it is less trouble.
dd.She met a person on a train who told her about Protection visas in Australia. He told her he was applying for a Protection visa. She was scared of doing anything because she thought she might go to detention because she does not have a visa.
ee.She was cooking and the oil burned her so she searched for some help for people with asylum and found [Organisation 1] and went there and also to the [Organisation 2].
ff.She does not know what will happen to her if she goes back to the Philippines.
Delegate’s Decision
The Delegate accepted that the applicant is a lesbian but was not satisfied there was a real chance she would face serious or significant harm in the Philippines.
Information to the Tribunal
With her review application the applicant enclosed the following written materials:
-A 12 page densely typed statement addressing the reasoning in the Delegate’s decision.
-Supporting evidence regarding the applicant’s health issues and medical treatment, education, her housing in the Philippines, her lack of capability to support herself in Australia and the general economic situation in the Philippines. She also submitted copies of documents she had previously submitted to the department.
Pre-Hearing Submission
On 20 March 2023 the applicant submitted excerpts from an article regarding bullying of LGBT students; medical records regarding health issues the applicant has faced in Australia; and a further written statement to the Tribunal in which she outlines the following:
… I am once again writing to give further information to support my application for the review of my Protection visa application. Based on the statement provided by the decision maker as mentioned in the DIBP Decision Record Letter on part 6 of page 3 paragraphs 1 to 3, under Refugee criteria assessment-s36(2)(a) of the Act, it is mentioned in paragraph 1 and 3 that "ln accordance with s 5J(1)(a) of the Act, I am satisfied that the applicant fears persecution for reason of membership of a particular social group being 'Lesbian in the Philippines'. " and "On the information provided I am willing to accept the applicant is a lesbian. "
In this statement mentioned in the DIBP decision record, my case officer is convinced that I have a fear of persecution for the reason of membership in a particular social group being a Lesbian. However, according to my case officer, A fear of being persecuted is well-founded if there is a 'real chance' that an applicant may be persecuted. A 'real chance' may be below a 50 per cent chance; however, a real chance is not a remote chance. There needs to be a real substantial basis for a fear of persecution in order for it to be well-founded. "
Please allow me to demonstrate that I have a well-founded fear of persecution and have suffered and will suffer serious harm if I return to my home country.
I experienced violence, discrimination, harassment, and humiliation in the community, at universities as well as from the hands of my relatives due to my sexual orientation. I have a well-founded fear of persecution and will suffer serious harm if I return to my home country due to the following reasons:
Section 5J paragraph (4)(d) significant economic hardship that threatens the person's capacity to subsist;
The violence, discrimination, harassment, humiliation, and persecution I encountered in my home country have affected my ability to live a normal life. It has damaged my physical and mental health.
I am vulnerable and weak not only because of the damage that persecution has affected me but also the health issues that I possess that will result in a severe mental health problem that will be a threat to subsist in my home country. I am weak to face the change of environment if I return to my home country knowing I have not been protected by law when I was in danger in my home country.
Section 5J paragraph (4) (e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
Protection from authorities
There was no effective protection, available when I encountered serious harm in my home country. Currently, the situation in Philippines is still the same. According to the article in the link provided below, it states Philippines is rich in law but poor in implementation.

Although there is a law or ordinance in 10 cities against the discrimination on the basis of gender orientation and sexual identity, these policies have not been adequately enforced due to absence of effective implementation and monitoring as reported on based on the interview conducted by Human Rights Watch.
Also, in another article below, although Philippines is considered as a gay-friendly country. it is reported that Filipino Lesbian, Gay, Transgender and Bisexual (LGBT) community, especially LGBT students are struggling with bullying and discrimination from families, communities and schools. The main barriers of the organization were the poor support from the government along with the lack of funding and workforce. The lack of legal protection, mental health issues and discrimination at different places were big challenges to Filipino LGBT students.
Section 5J paragraph (4) (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
I transferred to 4 different Universities and tried my best to finish a degree however each university I attended, I encountered severe persecution and humiliation. The articles below state the disadvantage of being a homosexual in acquiring a job. In addition to this is the effect of the persecution on me to attain an established life and also the poor health that I posses that continues to worsen.
Tribunal Hearing, 29 March 2023
The applicant appeared before the Tribunal on 29 March 2023 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.She lives by herself [in] a studio apartment.
b.She supported herself in Australia with some savings, then she used her mother’s credit card for the first two years here. For three years she found a friend who gave her accommodation. After 2015 Red Cross helped her apply for the SRSS but this stopped in 2018/9. Then [Organisation 1] and the [Organisation 2] helped her to get work rights. She worked for a contractor for [a workplace] then got another job in a [workplace]. Last week, because of her health issues they asked her to stop working. Her workplace is trying to lodge a worker’s compensation claim for her. Her employer wants to give her light duties. She has [a medical condition]. Her doctors don’t know if she will get better. She is using her sick leave for now.
c.Her salary when she is working is enough to support herself and help her pay off her credit card.
d.She identifies as a homosexual and a woman. She is not transgender.
e.Her religion is the Church of Christ. She attends the church in Australia.
f.She graduated from high school in the Philippines. She then attended four different universities. The first one was the [University 1] where she studied [Discipline 1] for one or two semesters. She next attended the [University 2] where she studied [Discipline 1] for one or two semesters. Her third was the [University 3] where she studied [Discipline 1] for one or two semesters. Her final place was the [University 4], where she studied [Discipline 1] for two or three semesters.
g.She passed some units during her studies and failed some.
h.She changed universities in the Philippines because she experienced persecution. She had short hair and looked like a man. At the [University 1] she was always bullied and criticised. She was called a tomboy. Others would swear at her and punch her. A classmate, [named], punched her. She doesn’t know why he did that. He was teasing her saying ‘are you a man, can you fight me’ and then he punched her in the chest. It was painful and she was hurt but she didn’t say anything.
i.The other students saw [the classmate] punch the applicant. No one tried to help her. She did not make a complaint about it she just stopped going to school and dropped out.
j.She did not meet any other gay or lesbian students at University because her class was small. She did not personally know other gay or lesbian students but she saw them. She could tell by their appearance, their hair and the way they dressed. She saw one who was a ‘gay’. That is the word used in the Philippines for a man turning himself into a woman. For a woman turning herself into a man they use the word ‘lesbian’.
k.She did not approach other gay and lesbian students because since she was a child she has felt isolated, even at school. She doesn’t talk much.
l.She doesn’t remember if she tried to get help or support at university.
m.At [University 2] she did not experience physical harm. It’s just that she became sensitive. In the University the students always play around and when they see her appearance they say something. She suffered damage from when she was a child.
n.She left [University 2] because she was sensitive to how she was treated and got sick all the time. She became sick because of the pressure. She was mentally fragile and could not bear her experiences. She wanted to start somewhere new without hearing anything.
o.At the [University 3] there was a time where her teacher humiliated her in class so she dropped out and didn’t attend anymore. She thinks she came a bit late to the class and the male teacher embarrassed her and criticised her sexuality. He suggested that she was doing something immoral. He said she was doing immoral acts and that was why she was late. She thinks that was the last time she attended the school.
p.At [University 4], she didn’t experience much persecution but she had problems with her community and family. Because of her health she was unable to continue at the university.
q.She did not work in the Philippines. She tried to work but there was quite a few issues. She did some work for a few weeks at [Company 1] but her co-workers did the same thing. She can’t explain it. They don’t treat her so well, they are a bit arrogant. They mention always about her experience. She only worked there for two weeks. It was in [a specified] part of [Company 1]. She didn’t see any other gay and lesbian workers in her section.
r.In Australia she has obtained a Diploma in [Discipline 2]. She found it hard to look for a job. She wants to try to obtain an Advanced Diploma. She is still enrolled but is experiencing mental health issues at the moment.
s.She has been diagnosed with a major depressive disorder. There was also something in her brain. It causes depression. She still has it. It is rated 8.86 and it is very dangerous. It causes her to be very sensitive and fragile.
t.Her mother is still in Cabuyao. She has another house in same city. They still have the one in the family compound and her mother will go back there. The applicant would be able to live in her mother’s house which she rents out. However it is too close to her other relatives as they are only five minutes away. She still fears them. It is hard to explain, until now they say things about her. Also her mother wants to rent the house for additional income.
u.Her cousin [Mr A] tried to get into her mother’s house while her mother was there. He didn’t say anything. Her mother went out of the room and noticed the door open. She thinks it was [Mr A] because she went to some distant relatives and [Mr A] went to that person and was boasting that he can kill someone. He was saying a lot of bad things to the applicant’s mother about the applicant. He mentioned something about the documents he wants. The applicant’s family is suing [Mr A] and he is trying to get the evidence. The applicant doesn’t know what he is trying to get.
v.The applicant’s family are suing [Mr A] because of the threat. He made a threat. Her family didn’t tell the applicant the whole story. By her family she means her aunt, uncle and mother. [Mr A] threatened to harm the whole family. She can’t explain more as they don’t want to tell her.
w.The break in at her mother’s home happened in December. It was the day [Mr A] received the summons. Her mother told the police about the break-in and it was added to the complaint. The applicant thinks it is mentioned in the summons to [Mr A]. She thinks the lawyer is filing the report. If her family win in court then [Mr A] will be arrested. He also has a lawyer.
x.[Mr A] is about ten years older than the applicant. He has had an aggressive attitude since a child, maybe because of jealousy. He is mainly focussed upon the applicant’s sexuality. He doesn’t fear anyone. He even fights the police and officials. He threatens everyone. The applicant doesn’t think he has any mental health issues. [Mr A] lives in the family compound with his wife and children. Two of his children moved out and only one is left. [Mr A]’s wife is submissive but the children fight back. [Mr A] is violent to them but they fight back.
y.The applicant’s mother recently retired and has some money. She will receive the pension from about July but it is not enough to live on. She spent her savings on the applicant so the applicant wants to help her. They are all experiencing financial hardship.
z.The applicant is waiting to hear from the doctor whether she can return to her employment. She can do sit down work. Her company is willing to offer her different work. They are very supportive of the applicant and are aware she has mental problems. They a bit sceptical about whether the applicant can do office work requiring thinking but they are trying to find ways she can resume work.
aa.The applicant’s employer is the [Employer 1] in [Suburb 1]. The applicant did room attendance. She worked at nights. They trust her and made her full time after eight months. She had a meeting with HR and currently there is no work to accommodate her for 10 minutes standing only. They contact her from time to time by email to discuss her mental health. She can submit some of these emails to the Tribunal.
bb.She did not really have gay and lesbian friends in the Philippines. She met a couple of couples at school and University but just had quick chat with them, they were not friends. She does not have gay or lesbian friends in Australia. She has no friends in Australia.
cc.When she is not working she just stays at home, doing nothing, because she works night shifts. She [does specified work].
dd.She calls the [Organisation 2] from time to time for support with her mental health. She visited them last [year]. She doesn’t know that the [Organisation 2] runs support groups for gays and lesbians. She only visited it twice. When she is amongst people she finds it hard to talk sometimes.
ee.The Tribunal asked the applicant if she could live in Manila in the Philippines and she responded that she did not know how to start her life again because of the damage. She is not sure if she could find work there. Even to come to the Tribunal for the hearing she was in pain and stressed.
ff.She has a psychiatrist. She was also referred to a psychologist during lockdown. Her work will organise some mental health support for her as they are worried she has no work at the moment.
gg.The applicant had a relationship with a woman in the Philippines. She was the applicant’s classmate but she doesn’t look gay, she is really straight. It was very sweet but she moved to [Country 1]. They didn’t tell anyone. It was in 2009. The applicant is [age] now so it was when she was about [age] or [age]. They were in a relationship for less than one year. She lived near the applicant. She moved to [Country 1] and she has a young sister in her custody so the applicant was the one checking on the young sister. Sometimes she visited the Philippines. They had a long distance relationship on line. She moved in with the applicant when she returned to the Philippines. She could not stay with her sister because it was a boarding place with rules. They had feelings for each other before she left the Philippines but it then became official on line. She visited and stayed with the applicant for one or two months.
hh.The applicant liked her because she understood the applicant and cared about her. But then she moved back to [Country 1] and they tried to continue the relationship but it didn’t work out. The applicant thinks she has already submitted photographs of them together but she no longer has any. Her name was [name]. They are still friends on [social media] but they don’t talk anymore.
ii.The applicant has met someone in Australia but the applicant is scared to tell her she likes her. The applicant knows her through her work.
jj.At the time she applied for the Protection visa she saw progress in her life and wanted to start a new life. After she received the department’s refusal she has gradually returned to not knowing how to stand on her feet anymore. She won’t be able to survive in the Philippines at the moment with her situation. She is vulnerable because of the adjustments and with the fear she faces.
kk.[Mr A], his sister and his friends cause the applicant problems in the Philippines. When [Mr A] held a knife at the applicant his two friends stood behind him. They also threatened her. She doesn’t know why, she thinks it is because of what she is.
ll.She feels safe in Australia but not in the Philippines. Even though she is not in a good economic situation here she is safe.
mm.There aren’t psychiatric doctors for her in the Philippines. She was just treated in hospitals randomly in the Philippines for her immunity problems. She didn’t get treatment for her mental health in the Philippines. It is not easily accessible. There may be some support but it is not accessible. It is also very expensive.
nn.At her work in Australia people know she is a lesbian because they can feel it by the way she talks and dresses. She does not speak femininely. There was one time one of the ladies saw the applicant had white skin. She pulled her dress down to show her bra. She laughed and said that confirms you are a man.
Post-Hearing Submissions

Following the hearing on 30 March 2023 the applicant submitted the following further materials to the Tribunal:
-     A copy of the applicant’s work roster showing her days off sick.
-     Screen shots of text messages between the applicant and her work colleague [name].
-     Email messages between the applicant and her work supervisors.
On 8 and 9 April 2023 the applicant submitted the following further materials to the Tribunal:
-     A NSW Workers Compensation Certificate of Fitness dated 20 March 2023. It describes her diagnosis as ‘Plantar Fascitis of both feet’ and ‘anxiety disorder’. It states she has capacity for full-time work but can only stand 10 minutes per hour, with limited carrying, pushing and pulling ability.
-     A letter dated 3 April 2023 from an insurance agency informing the applicant that her claim had been accepted and that she would receive a small weekly payment plus coverage of her medical treatment costs.
-     Screen shots of text messages between the applicant and her work colleague [name].
-     Copies of the applicant’s work roster showing her days off sick.
-     A Diploma in [Discipline 2] in the applicant’s name dated in July 2018.
-     The applicant’s academic transcript for her [Discipline 2] diploma.
-     A typed letter from the applicant.
In her typed letter the applicant writes the following:
I’m writing to provide details of my employment and health status as requested. I am currently employed by [Employer 1], trading as [name].
I’ve been diagnosed with Major Depressive Disorder hence despite I have managed to complete my studies in [Discipline 2] here in Australia, I still ended up working as a [Occupation 2] doing physical work as my mental health issues hinder me from doing office work.
I only experience stress and depressing moments at work, mostly when I make mistakes, as it takes time for me to overcome them as well as when I receive negative comments from people around me. I am so lucky I have managers who support me and listen to me when I’m down and understand me when I am being emotionally sensitive. Attached and submitted are supporting documents including screenshots of emails to my manager that illustrate how my managers support me to overcome and handle my mental health problems/depression.
I suffered physical health issues during my employment however, I was able to recover quickly than recovering from mental distress. Until it came to the point that I’ve been advised by the Doctor to be off work indefinitely as I am physically unfit to perform my daily duties at my current work. Attached and submitted here is my certificate of capacity issued to me on 20 March 2023. The diagnosis is plantar fasciitis, anxiety, and depression.
The pain in my foot started in October 2022, however, I still strived my best to manage the pain at work. My managers are very supportive since it has been brought to their attention that I am suffering from pain at work, and they organised light duties for me however my Boss still noticed my condition is getting worse after giving me a light duty. I’ve been advised by the manager to see a Doctor and obtain a certificate that states the applicable light duty that would help me recover from pain.
After seeing a Doctor, the Doctor assessed that the main contributor to the pain I suffer every day is the tasks I perform at work. The Doctor refused to issue me a medical certificate that states applicable light duties however instead, he issued me a certificate of work capacity and advised me to apply for worker’s compensation.
I’ve spoken to my manager about this and informed her that I don’t want to apply for worker’s compensation and instead I just requested some flexibility at work without realising the Doctor has sent through the application. (screenshot of email attached and submitted).
On 27 March 2023, I’ve been invited to a meeting with the general manager, operations manager, and HR Manager. I’ve mentioned my decision to cancel the worker’s compensation application. However, upon noticing by the managers that the recovery from my condition would take a long time, they advised me to continue the application hence I can keep the job and they can look after me and support my recovery.
I still have some capacity to work, but I would only be allowed to stand 10 minutes every hour which the office job would suit, however, due to my condition with anxiety and depression as a hindrance, the treatment for my mental health issues can be included in my return-to-work program. (list of treatments included in the insurance letter). The application for the workers’ compensation has been approved and liability was accepted by the insurance on April 3. 2023.
As mentioned above this letter along with the screenshots attached and submitted. It demonstrates I am very sensitive to everything that I hear and encounter due to mental health issues or could be it because of my condition where some part of my brain was not developed due to my large brain cyst. I’m so vulnerable to verbal and physical abuse. I am weak and unable to protect myself or overcome any verbal and physical abuse.
Australia has changed my life through the help of organisations that help vulnerable people and through the help of workplaces that was governed by implemented regulations that protect the right of every person and ensure our security and safety.
The recovery from the damage of dangers I faced in my home country took a while to improve however I’ve seen so many positive changes since I moved to Australia unlike when I was in my home country, where my situation and condition were getting worse.
I was able to finish a course after 4 unsuccessful attempts to earn a degree in my home country. Through the help of the established organisations in Australia that help Asylum Seekers, I was able to secure a job and be able to live a normal life.
I have never encountered danger in this country nor encountered persecution due to my sexual orientation. Although I can’t establish social life outside the workplace at this time due to working in night shift. I am still able to interact socially at work with my workmates including with homosexuals at work. (screenshot of conversation attached)
Australia is the country that gave me hope to move forward and forget my past. Looking back and remembering my past weakens me. It is so hard for me to fully explain how Australia helps me to feel safe and free from danger. However, I felt and witnessed so many changes in me that now I can surely say I am free from the danger that once damaged my life that resulted in my inability to live and establish a normal and safe life in my home country.
I understand there are so many articles that were published on the internet that announce organisation that would help me to be free from danger. However, it is just good to read the purpose of the organisation but it has never been proven it has served its purpose to every individual, especially to a vulnerable person like me.
The help of every organisation in my home country is limited and due to my medical condition, my sensitivity to verbal abuse and my fear is too high. The weight of verbal/physical abuse or danger I might encounter in my home country might be considered a minor situation in the opinion of others but simple verbal/physical abuse or fear I encounter can cause major damage in my life due to my medical condition and damage from the dangers I suffered in the past in my home country.
I may not be financially wealthy here in Australia despite I obtained a job here as I had to pay all my debt that I acquired to provide for my needs here in Australia for the first 3 years that I moved here to be free from danger. The changes and improvement in me are slow but I can confidently say I am progressing in this country.
At this stage, I came to the point that I have been assessed as unfit to work and the recovery will take longer however I never lose hope here in Australia as the implementation of rules here is very strong and the initiative of every organisation and workplace to help a vulnerable person like me is very sincere and I have proven every organisation in Australia serves their purpose.
I hope I won’t be returned to my home country; I am hoping to be allowed to remain in Australia and be free from fear of danger.
Attached and submitted are supporting documents regarding my health and work status instead of requesting a letter from my employer as I think previous conversations, certification from a doctor, and insurance would illustrate my current health and work situation.
On 6 June 2023 the Tribunal wrote to the applicant inviting her to provide medical evidence regarding her statements that she had been diagnosed with 'Major Depressive Disorder' and that part of her brain had not developed due to a large cyst.
On 8 June 2023 the applicant submitted the following materials to the Tribunal:
-     An excerpt of a health article which states that an arachnoid cyst larger than 3 cm is considered dangerous.
-     Several brain scans of the applicant’s brain.
-     A referral letter dated 9 November 2017 from [a named doctor], stating that the applicant required “ongoing management of major depressive disorder” and was taking the medication “[name]”.
-     A letter from neurosurgeon [Dr C], dated 4 July 2018, stating that an MRI confirmed that the applicant was suffering from headaches and had an ‘[size] cyst’ in her brain, which she had from birth. It was ‘not causing a significant compression of her surrounding brain’. Some mild compression and slight scalloping of the brain was observed and the neurosurgeon recommended a further scan in a year’s time.
-     A further letter from neurosurgeon [Dr C], dated 27 July 2019, stating that the arachnoid cyst was stable and the applicant did not require surgery unless something changes. The applicant did not need a further scan unless she developed headaches again or suffered a small head injury.
-     A typed letter from the applicant in which she refers to the above medical information.
Country Information
DFAT’s most recent ‘Country Information Report’ on The Philippines published in August 2021, contains the following:
Mental Health
Mental healthcare is available but limited. There is a severe shortage of mental health specialists, and mental health services receive less than 5 per cent of the total health budget. Filipinos with mental health problems are often reluctant to access help due to financial constraints or stigma. Surveys show the COVID-19 pandemic has led to a worsening of mental health for many Filipinos.
In 2018, President Duterte signed the Philippines’ first comprehensive legal framework for mental health: the Mental Health Act (Republic Act No. 11036). The legislation focuses on consent and de-institutionalisation of patients, as well as increased investment in local mental health services. The implementing regulations were passed in January 2019, although their effectiveness in protecting the rights of people with mental health problems remains to be seen.
There are two dedicated psychiatric hospitals in the country (in Manila and Luzon), and some general hospitals have out-patient services or mental health wards. The majority of psychiatrists are in private practice in Manila. Mental health services are especially lacking in rural and remote areas, and mental health facilities throughout the country suffer from overcrowding, poorly functioning units, chronic staff shortages and funding constraints.
…
Women
The Philippines Constitution ‘recognizes the role of women in nation building and shall ensure the fundamental equality before the law of women and men’. Gender-based discrimination is illegal under Republic Act 9710 (the Magna Carta of Women). Rape, including spousal rape, is illegal, with penalties ranging from 12 to 40 years’ imprisonment.
Women in the Philippines have equal access to education, including higher education, and women graduates outnumber men at both the undergraduate and postgraduate level. While women do not face legal barriers to equal participation in the economy, politics and society, social attitudes and power imbalances undermine gender equality in practice. According to UNFPA, Filipina women and girls suffer disproportionately from gender stereotyping, stigmatisation and sexual shaming.
Violence against women is widespread in the Philippines. It is likely that many cases of rape go unreported. Police stations have ‘women’s desks’ for women to report violence and a specialist police command dealing with women’s issues exists within the police force. The effectiveness of these services varies. Some women who turn to Barangay Captains for assistance with domestic violence may be provided effective protection in this way in the form of ‘Barangay Protection Orders’, which are analogous to Apprehended Violence Orders. However, other women report that Barangay Captains refuse to intervene or insist on trying to reconcile the victim and her abuser, exposing her to further violence. While data is scant, gender-based violence is thought to have worsened significantly during COVID-19, with UNFPA estimating an additional 12,000 cases per month during lockdowns.
Some women who are victims of violence may be supported by their extended family. Whether or not this is effective depends on the family. Women’s rights workers in the Philippines told DFAT that some women who seek protection from their extended family may be stigmatised and abused for leaving their husbands. Single women with children are particularly stigmatised.
The Department of Social Welfare and Development, local specialist NGOs and some churches provide shelter and counselling services, which are more accessible in large cities. Local NGOs told DFAT these services were too few in number to meet demand. These services generally target the poor, but women from wealthier backgrounds may be accepted. Victims of domestic violence may be stigmatised; there is a taboo about family violence. Some women are reluctant to leave abusive partners for religious or moral reasons.
…
Women and girls have been disproportionately disadvantaged by the impacts of COVID-19. Many Filipina women are employed in service industries like retail, hospitality and tourism, which have contracted. Women were already overrepresented in the informal economy and lack labour and harassment protections. Women also dominate the health and human services sectors, placing them at higher risk of catching COVID-19.
President Duterte has made widely reported misogynistic, derogatory and demeaning public statements about women, including condoning rape and encouraging sexual mutilation of female insurgents by soldiers. Such statements may contribute to an environment of impunity for security forces. Leaders of women’s rights groups have been singled out for judicial harassment and red-tagging, and women journalists and activists are often targeted by online trolls.
Overall, DFAT assesses that women face a low risk of official discrimination. Women activists and journalists face a high risk of online harassment. Women who are victims of domestic violence may be unable to access services. Single women who have no other means of support, particularly widows, are at a high risk of violence and societal discrimination.
Sexual Orientation and Gender Identity
The Philippines is one of the more tolerant countries in Asia towards lesbian, gay, bisexual, transgender and/or intersex (LGBTI) people. The law does not prohibit consensual same-sex relations, and issues facing LGBTI communities are discussed in public. The Metro Manila Pride Parade is the longest-running in Southeast Asia and has been celebrated every year since 1994.
Despite this relative tolerance, discrimination against LGBTI individuals does exist, and the LGBTI communities continue to face numerous societal, cultural and legislative barriers. Human Rights Watch has reported LGBTI students face bullying and harassment in schools, despite laws prohibiting this. Provisions of the Revised Penal Code have been used to intimidate, arrest or charge individuals based on their sexual orientation or gender identity, including Article 200 (on grave scandal), Article 201 (on offences against decency and good customs), Article 202 (on vagrancy), Article 226 (on acts of lasciviousness) and Article 340 (on corruption of minors).
Pride events, while held openly, attract protests. Polling in 2018 about same-sex marriage suggests about 60 per cent of Filipinos are opposed, although that number has been declining in recent years. Young people are generally more accepting of LGBTI people. In general, the Catholic church is more accepting of LGBTI people than are evangelical churches. Same-sex relationships are taboo in the (Muslim majority) BARMM. DFAT understands LGBTI individuals living there would likely hide their LGBTI status or move away.
Public figures openly criticise LGBTI people. For instance, in 2016 the popular and influential Senator, Manny Pacquaio (also a famous boxer), told local media that couples in same-sex partnerships were ‘worse than animals’. On the other hand, a number of high-profile LGBTI people are seen in the media and on television.
During his election campaign, President Duterte made public comments in favour of increasing LGBTI rights but is yet to enact any policies in support of this. No national legislation protecting LGBTI people from discrimination exists, although discussions about such a provision have been taking place for over 20 years. A small number of municipalities have enacted their own anti-discrimination ordinances, which vary in effectiveness. The Department of Social Welfare and Development has issued a memorandum allowing LGBTI personnel to wear uniforms based on their preferred gender identity.
It is difficult to generalise how LGBTI people are treated in family contexts. Some relatives may disown LGBTI relatives or force them to undertake sexual identity conversion therapy, especially in Chinese-Filipino families where the eldest male child may forgo his inheritance if he is gay. Sources told DFAT societal discrimination is not necessarily related to socio-economic position, and poor families in rural areas may be more accepting, particularly if the LGBTI family member contributes financially.
Lesbians are represented by a small number of NGOs, but lesbian issues are not widely discussed in Filipino society. Lesbians, in general, do not face day-to-day harassment or discrimination; however, this may be on the basis that they are not open about their sexual orientation or because lesbian issues are not widely discussed or understood.
Transgender people are more likely to experience harassment than are other LGBTI people. Isolated hate crimes occur. For instance, a US Marine was convicted of murdering a transgender woman in an apparent hate crime in 2015. On the other hand, a transgender woman, Geraldine Roman, was elected to congress in 2016, the first transgender woman to hold that position. Gender reassignment surgery is not illegal but it is not widely available and is expensive. Under the Clerical Error Law of 2001 it is illegal for a transgender person to change their sex on their birth certificate. Local LGBTI NGOs reported that transgender students have been prevented from wearing their preferred uniform.
LGBTI individuals may move to metropolitan areas to escape discrimination, particularly Manila, which has a vibrant LGBTI community. LGBTI individuals who live in the south, especially in Muslim areas, are especially likely to relocate.
DFAT assesses that LGBTI individuals face a low level of official discrimination and a low level of societal discrimination on a day-to-day basis. This is not strongly correlated with socio-economic status or geographic location, except for LGBTI individuals living in the BARMM who face a moderate risk of societal and official discrimination and violence. DFAT assesses transgender individuals face a moderate risk of violence and discrimination in all parts of the country.

In February this year a bill to prevent discrimination on the basis of sexual orientation was again blocked in the Philippines senate:
The Senate bill seeking to penalize discrimination based on sexual orientation, gender identity, and expression (SOGIE) has been reverted to the committee level after Senate Majority Leader Joel Villanueva presented piles of letters from concerned religious groups at the Senate session on Wednesday, February 8. Hontiveros said that for over two decades, lawmakers have always listened to and engaged with religious groups. She mentioned some of the concessions the committee made in line with religious groups’ recommendations:
Inclusion of an explicit exemption of marriage licenses in the provision on licenses, to clarify that the bill does not legalize gay marriages
Addition of an explicit inclusion of the principle of academic freedom
The non-disturbance of parental responsibility in the Family Code
Agreement to reconsider criminal liabilities on schools that impose heteronormative uniform requirements, and on parents who seek medical tests to determine the SOGIE of their children
Meanwhile, these were the prohibited acts that the committee was hard on keeping:
Workplace prohibition
Expulsion from schools on the basis of SOGIE, as “this is not in accord with the best interest of the child”
Discrimination in access to emergency and necessary health services
SOGIE-based abuse against persons deprived of liberty
Discrimination in access to social protection instruments, like cash aid
Hontiveros said she was willing to keep engaging and listening to religious groups “in good faith, and I can engage with those who speak from a place of faith or religion, being a woman of faith myself, Madame President.” “But I was voted by the Republic to pass secular laws. Laws that protect the least of us. Laws that reflect our commitments to international law and to human rights norms. I hope you agree with me that the oppressions that beset our LGBTQIA+ community are real, documented, and undeniable.[1]
[1] The Rappler, 2023, ‘SOGIE bill reverted to committee level as religious groups want to join Senate discussions’, 9 February 2023
According to Galang Philippines, a lesbian based organisation:
Because the Philippines is a developing country, we felt it was imperative for local activists to learn more about the relationship between sexuality and poverty in order to gain ground in advocating to and for the rights of sexual minorities.
We could not ignore the fact that out of around 88 million Filipinos, 27 million are poor, surviving on less than US $1 per day—hardly enough for basic needs such as food and shelter. These numbers are consistent with our observation that while some Filipino LGBTs are financially stable or gainfully employed, the predominant face of local LGBTs is of those of us who are poor, uneducated, and unemployed or underemployed—the same segment of the sector that is often most prone to becoming victims of employment discrimination or violence.
Confronted with these realities, we felt it was urgent to develop a model for organizing and mobilizing poor LGBTs who comprise the majority of the sector, not only because they are the most vulnerable among us, but also because of the belief that without a critical mass of organized Filipino LGBTs, they will continue to suffer from discrimination, with limited access to and control of education, health services, and employment opportunities.[2]
[2] Galang website,
The South China Morning Post, 2021, “As Philippines marks pride month, low-income LGBT folk struggle to be heard”, 27 June, reports:
Anne Villarama, a 37-year-old housekeeper in Manila, longs to be able to wave a rainbow flag in a pride parade without fear one day. The mother of one belongs to the LGBT community, which has long faced discrimination in the Philippines, a country with a mostly Catholic population that has conservative views on issues of gender diversity.
For many LGBT folk, the pride month of June has been a time for the community to rally and assert their rights. Until the Covid-19 pandemic put a halt to physical events, the turnout at pride marches had risen every year, with the Metro Manila Pride March seeing a record 70,000 attendees in 2019.
But for people like Villarama, being part of the working class makes it a challenge to be openly free to be themselves. “My mother still doesn’t know I’m bisexual,” she said. “I cannot come out to her because I still remember her enraged reaction when somebody asked if I’m not straight.”
…
A 2011 study by GALANG Philippines, an organisation for economically disadvantaged people from the lesbian, bisexual and transgender (LBT) community, found that “LBTs were more marginalised than gay men, as they were less likely to find jobs and more likely to become victims of violence”.
…
While discrimination and abuse against the LGBT community is rife in the Philippines, there is no data on these incidents and attacks, rendering their struggles invisible.
Last month, the mutilated body of Ebeng Mayor [a trans man], who had gone missing for a few days, was found in Quezon City, in a suspected case of rape and murder. The same month, transwoman Jhie Bangkiao’s naked body was found in a cemetery in Leyte, Eastern Visayas.
Linda Flor Irlandesa, the chairwoman of the Visayan LBTQ Network, said victims also did not usually report being bullied for fear of reprisals. “I know at least two women who were victims of such abuses who didn’t file reports,” she said. “How many more in other areas? When the state doesn’t ask the question, how can you get the data?” There is currently no federal legislation to prevent injustice and economic discrimination against LGBT communities, although 25 local jurisdictions have anti-discrimination laws that prohibit prejudice based on sexual orientation and gender identity.
However, Representative Arlene Brosas, of the GABRIELA Women’s Party, said the local laws did not go far enough. Her party is among the backers of the Sexual Orientation and Gender Identity Expression (SOGIE) Equality Bill, which was first filed in the Philippine Congress in 2000. While past versions of the proposed law, also known as the Anti-Discrimination Bill, have passed a third reading in the House of Representatives, it has struggled to gain support in the Senate.
“According to the data from the [University of the Philippines’] Population Institute, although 19.8 million Filipinos – 19.6 per cent of the population – reside in areas with anti-discrimination ordinances, the absence of a national anti-discrimination law leaves more than 81 million Filipinos unprotected from SOGIE-based discrimination,” Brosas said. “Moreover, existing anti-discrimination ordinances only protect 2.3 million Filipinos (8.3 per cent) living below the poverty threshold, with 25.8 million people vulnerable to discrimination in schools and workplaces, among many other spheres,” she added.
The road to passing the legislation has been an uphill climb. Influential figures allied with President Rodrigo Duterte have opposed the passing of the bill, causing it to linger in Congress for more than 20 years. “The Philippine government promulgates homophobic remarks. President Duterte himself said that being ‘gay is a disease’,” Brosas said.
Vice World News, 2021, ‘Lesbian Women Allegedly Shamed by Shaving Their Heads in Public’, 17 June:
LGBTQ acceptance has expanded in the Philippines over the years, illustrated in part by the success of some members of the community in politics, media and entertainment industries. But rights groups say gender-based discrimination and violence are still a major problem.
… “This incident highlights that violence against LGBTQI persons is a national concern. Numerous attacks against LGBTQI individuals have been reported just this past month, and these incidents occurred in various areas in the country,” Claire De Leon, the organization’s secretary-general, told VICE World News.
The USDOS, 2021 ‘Country Reports on Human Rights Practices: Philippines’:
National laws neither criminalize consensual same-sex sexual conduct among adults nor prohibit discrimination based on sexual orientation and gender identity. Outright International, a lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) NGO, estimated 29 cities, provinces, barangays, and municipalities had enacted a version of an antidiscrimination ordinance that protects LGBTQI+ rights.
…NGOs reported incidents of discrimination and abuse against LGBTQI+ persons, including in employment, education, health care, housing, and social services. On May 18, three men allegedly killed transgender man Ebeng Mayor after raping and physically abusing her. The three reportedly knew Mayor and spent the evening at a bar with her. The alleged killers were arrested on May 22 and faced rape and murder charges. In June a Cotabato City local radio station reported through a social media post, which was later deleted, that residents of Ampatuan town in the BARMM forcibly shaved the heads of neighbors said to be members of the LGBTQI+ community. The alleged perpetrators justified the deed, claiming that “being gay or lesbian is against Islam.” Mindanao LGBTQI+ groups and human rights groups condemned the action, declaring that religion does not justify bigotry.
A 2018 study reported the following:
The Philippines is considered as a gay-friendly country. However, it is reported that Filipino Lesbian, Gay, Transgender and Bisexual (LGBT) community, especially LGBT students are struggling with bullying and discrimination from families, communities and schools.[3]
[3] Xijia Tang, Ak Narayan Poudel, ‘Exploring challenges and problems faced by LGBT students in Philippines: A qualitative study.’, Nuffield Centre for International Health and Development, Leeds Institute of Health Sciences, University of Leeds, United Kingdom.
A joint 2018 UNDP and ILO report on LGBTI discrimination contains the following
Same-sex activity between consenting adults (18 years or older) is not criminalized in the Philippines. Sexual orientation is mentioned in various laws and some protection is provided on that ground. The Supreme Court has invalidated government regulations that infringed on the sexual relations of consenting adults, regardless of their SOGIE. Another positive policy change was that the Psychological Association of the Philippines removed the stigma of mental illness that has long been associated with diverse sexualities in 2011 and its Code of Ethics of 2010 calls for respect for diversity.
… some laws such as Article 202 concerning vagrancy in the Revised Penal Code (RPC) and the Anti-Trafficking in Persons Act (RA 9208), 2003, have reportedly been used by authorities to harass, arrest and extort LGBT people.
Currently, there are no specific services provided by the government that address SOGIESC-specific needs of LGBTI people. In contrast to research findings, many government officials believe that LGBTI people can avail themselves of all general programmes and that no one is discriminated against in service provision. But, this assertion is contradicted by research findings.
National context for LGBTI employment rights
The largest issue for LGBTI people in the Philippines remains the lack of an anti-discrimination law at the national level, which can be used to protect LGBTI employment rights. The Labor Code of the Philippines (1974), which serves as an overarching framework providing standards on the rights of workers in the country, is silent about SOGIESC. Since the late 1990s, LGBTI rights advocates have lobbied for the passage of anti-discrimination bills covering not only discrimination in the workplace, but also in education, access to goods and services, accommodation, and the military. However, the bills have faced strong opposition from religious groups as well as from lawmakers. The country’s first Comprehensive Anti-discrimination Bill, inclusive of SOGIE, was filed in August 2016 in the 17th Congress, backed by a coalition of stakeholders. In September 2017, the House in the Philippines approved the SOGIE Equality Act with congress voting unanimously, 198-0-0, on its third and final hearing. However, at the time of writing, it is not clear whether the Senate will pass the Act.
In the absence of national anti-discrimination legislation, local ordinances have been passed during the past 15 years that prohibit discrimination based on sexual orientation and/or gender identity and expression, often along with a number of other grounds, such as disability, age, race, ethnicity, religion and health status. In 2003, Quezon City was the first local government unit to pass an anti-discrimination ordinance banning employment-related discrimination (Quezon City Ordinance No. SP-1309 (series of 2003)). This 2003 ordinance was later expanded in 2014 to also cover affirmative acts encouraging existing barangay (village or district) help desks addressing violence against women and children to also address and document cases of gender-based violence against LGBT people (Quezon City Ordinance No. SP-2357 (series of 2014), better known as the Gender-Fair Ordinance). As of February 2018, 5 provinces, 15 cities, 1 municipality and 3 barangays have passed anti-discrimination ordinances that include SOGIE as protected grounds, covering just over one-tenth of the population.
A number of laws mention sexual orientation or address same-sex relations. The Magna Carta of Women (RA 9710), enacted in 2009, reiterates the Universal Declaration of Human Rights and states that no one shall suffer discrimination on the basis of gender and sexual orientation, among many other grounds (Sec. 6, para. 4). The Magna Carta for Public Social Workers (RA 9433), 2007, states that public social workers shall be protected “from discrimination by reason of sex, sexual orientation, age, political or religious beliefs, civil status, physical characteristics/ disability, or ethnicity” (Sec. 17). The Anti- Violence Against Women and Their Children Act of 2004 (RA 9262) punishes violence in intimate relations including those where both parties are women. However, RA 9262 also refers to LGBT people as “socially bad or psychologically detrimental”, similar to alcoholism and drug addiction.
In relation to public services, contradictory rules and regulations remain concerning SOGIE. For example, Section 59 of RA 8551 (Philippine National Police Reform and Reorganization Act of 1998) requires the National Police Commission (NAPOLCOM) to formulate a gender sensitivity programme, prevent sexual harassment in the workplace, and prohibit discrimination on the basis of gender or sexual orientation. Yet, the NAPOLCOM Memorandum Circular No. 2005- 002 allows a police officer to be discharged for “sexual perversion,” including “latent and overt homosexuality” and places homosexuality under “neurological and psychiatric disorders” that make a person unsuitable for service. Likewise, the Code of Ethics of the Armed Forces of the Philippines (AFP), which announced a zero tolerance for discrimination policy in 2009, has provisions that allow discrimination against lesbian and gay members of the military. In the civil service, the Civil Service Commission’s (CSC) Office Memorandum 2009–2010 prohibits discrimination against LGBTI people applying for civil service examinations, but it is not widely known.
According to LGBTI organizations in the Philippines, in the absence of a national anti-discrimination law that includes SOGIE, government agencies typically point to the lack of national legal and policy structures to support reforms towards gender-inclusive policies and practices in government workplaces as an excuse for inaction.
There has been progress in social dialogue and action taken by some stakeholders from the public and private sector and civil society towards improving the situation of LGBTI people in employment. While initiatives such as studies on LGBTI economic conditions and challenges and a new organization of entrepreneurs with LGBTI interests are still on a small scale, they are steps in the right direction. Awareness about discrimination in the workplace and SOGIE rights is still lacking in most employment sectors and among human resources practitioners in the country. While some employers in the private sector, particularly multinational companies, have begun to implement LGBTI-inclusive workplace policies and practices governed by their global policies, most domestic companies and government offices remain unaware of such policies.
…
The experiences of LGBTI people in the workplace in Asia are mostly reported to be negative. LGBTI people surveyed experienced difficulties right from the beginning of job searches. For example, more than 60 percent of the respondents in China, the Philippines and Thailand said they had seen a job advertisement that excludes their SOGIE in the job requirement. It was also extremely rare that LGBTI respondents were told that inclusive hiring policies were in place. During interviews, significant proportions of respondents in Thailand (25 percent) and the Philippines (31 percent) reported often or sometimes being asked about their personal life or sexuality. And 40 percent in Thailand and 25 percent in the Philippines received comments about their physical appearance as relating to their SOGIE.
…
Roughly half of LGBTI respondents in the Philippines and Thailand found their workplace to be open and accepting. However, in China, only 11 percent of the respondents considered their workplace as such, and about 41 percent of the respondents in China considered their workplace to be “not open and intolerant”.
Around 21 percent of respondents in China, 30 percent in the Philippines and 23 percent in Thailand reported being harassed, bullied or discriminated against by others at work due to their sexual orientation, gender identity or expression and/or intersex status in their current or latest workplace. An additional 29.1 percent in China, 12.9 percent in the Philippines and 19 percent in Thailand said they were not sure whether they had been harassed, bullied, or discriminated against by others. That means that less than 60 percent of respondents in the Philippines and Thailand and about half of respondents in China could say for certain that they had not experienced harassment, bullying or discrimination at work due to their SOGIE.[4]
[4] UNDP and ILO, 2018, ‘LGBTI People and Employment Discrimination Based on Sexual Orientation, Gender Identity and Expression, and Sex Characteristics in China, The Philippines and Thailand’
A 2020 joint report from UNDP, ODI and Galang, ‘Making It Work - Lesbian, Bisexual and Transgender Women’s Economic Empowerment in The Philippines’, states:
Bullying and discrimination in the education system by both students and teachers is a key experience of LBT women, despite anti-bullying legislation in the country. Hostility can cut short LBT women’s education, limiting their employment opportunities later in life. In several cases, being identified as LBT, or self-expressing openly as LBT, led to discrimination, abuse and other harmful behaviour. Only 57 percent of our online survey respondents claim to have never been threatened or physically harmed on account of gender identity or sexual orientation while 42 percent had experienced some degree of physical threat – of which 24 percent experienced it frequently or sometimes. Transgender women reported facing such threats more often than lesbian or bisexual women. However, our findings point to encouraging signs of changes in social attitudes towards LBT women, with most younger LBT women (i.e. below the age of 25 years) increasingly citing a positive experience of coming out to their families and other immediate networks, as well as acceptance in the workplace.
In August 2020 the Psychological Association of the Philippines issued a statement including the following:
Lesbian, gay, bisexual and transgender (LGBT) Filipinos continue to experience stigma, prejudice and discrimination in Philippine society. This stigma is manifested in actions such as: bullying, teasing and harassment of LGBT children and adolescents in families, schools and communities; media portrayal of LGBTs as frivolous, untrustworthy and even dangerous or predatory; denying transgender Filipinos entry into commercial establishments; pigeonholing LGBT Filipinos into particularly limited roles and occupations; or curtailing their rights to participate in the political sphere. LGBT Filipinos often confront social pressures to hide, suppress or even attempt to change their identities and expressions as conditions for their social acceptance and enjoyment of rights.[5]
[5] Statement of the Psychological Association of the Philippines on Non-Discrimination Based on Sexual Orientation, Gender Identity and Expression, 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 claims to fear harm in the Philippines as a lesbian who has been exposed to past bullying, harassment and physical violence and who has some struggles with her physical and mental health.
Sexuality
The applicant has consistently maintained that she is a lesbian or part of the LGBTQI community. She provided a narrative which clearly explained her experiences growing up as a lesbian in the Philippines. She spoke of her feelings of isolation and difference and the discrimination and negativity she encountered from time to time. She gave a reasonably consistent detailed account of a relationship with another woman in the Philippines, how it developed, how she experienced it in the Philippines and how it eventually ended. She spoke also about her life in Australia and her difficulties here finding a LGBTQI community due to her night shift work, her health and financial issues, a lack of trust she formed growing up in the Philippines and her introverted personality. She also described finding a small number of LGBTQI co-workers at her workplace with whom who she enjoys a level of friendship.
The Tribunal considers the applicant’s evidence about her sexuality persuasive and accepts that she is a lesbian.
Past experiences
The applicant spoke of being bullied, threatened, and verbally and physically assaulted by her cousin [Mr A], as well as harassed by his friends. She also claimed to have been bullied, ridiculed and physically assaulted at school and university by other students and teachers. She further claimed that she felt uncomfortable at her workplace so stopped working there after a short time.
The applicant was reasonably consistent in presenting her evidence regarding these experiences. Her accounts were largely matter of fact in nature, and her oral evidence at hearing was punctuated with moments of pause while she appeared to try to genuinely recall and describe past events and periods of time to respond to the Tribunal’s questions. She was then readily able to add detail and explanation.
The applicant also did not appear to exaggerate the level of frequency or intensity of her adverse experiences, nor invent additional incidents of harm despite some scope to do so. For example she was clear about which education facilities she did not experience physical harm in, and the times it was her general feeling of discomfort rather than actual threat which convinced her to withdraw from a particular environment.
The applicant has consistently spoken of her cousin [Mr A]’s animosity towards her and how it manifested on occasion into physical violence, intimidation and taunting. Recounting this evidence at hearing provoked a seemingly genuine emotional reaction of both anger and distress about his actions. Her claim was also supported by the detailed affidavits by her mother and other witnesses, which she submitted to the department.
The Tribunal found the applicant’s evidence about her past experiences in the Philippines persuasive and accepts she was subjected to bullying, occasional physical violence, threats, ridicule and taunting at school and colleges there; physical violence threats, intimidation and harassment from her cousin [Mr A] and his friends; and humiliation from others amongst her relatives and the broader society in the Philippines.
The applicant was somewhat vague about why she stopped attending her work at [Company 1] as she merely spoke of feeling uncomfortable there and left most of her sentences hanging when describing the work environment. However the Tribunal accepts the likelihood she had developed a particular sensitivity to the potential of adverse reaction based upon her looks and sexuality in view of her past experiences so felt unable to continue to attend a workplace which did not appear fully supportive to her.
Mental Health
The applicant has submitted a large number of documents referring to physical ailments she has suffered both in the Philippines and in Australia. Neurological scans and reports confirm she has a large ‘arachnoid cyst’ in her brain. The medical information also refers to the applicant having an anxiety disorder and having required ongoing treatment for a major depressive disorder.
The applicant’s presentation at her Tribunal hearing appeared affected by her mental health issues. She seemed to have difficulty focussing and would at times appear somewhat lost in her recall of traumatising memories. There was a fragility about her demeanour and responses which suggested extra care was required to avoid seriously distressing and disturbing the applicant. The applicant’s written statements also showed somewhat painstaking fixations upon her past and present situations. The applicant’s mental health appears to adversely impact her ability to function in situations she perceives as stressful, threatening or non-accepting.
Based upon the available information the Tribunal accepts that the applicant has an anxiety disorder and suffers from a depressive disorder. The Tribunal also accepts that she has a large cyst in her brain which can cause headaches, which was stable in 2019, but which requires monitoring for potential future adverse developments.
Fear of Harm in the Philippines
The Tribunal has accepted that the applicant is a lesbian who experienced occasional bullying, physical harm, threats, intimidation, harassment and humiliation in the Philippines. The Tribunal has also accepted that the applicant has anxiety and depressive disorders and a large brain cyst.
The above country information describes the Philippines as one of the more tolerant countries for LGBTQI people in Asia. This relative evaluation is further qualified by the acknowledgement that members of the LGBTQI communities are still at some risk of discrimination, harassment, bullying, and violence.
If the applicant returns to the Philippines she should be able to live with her mother again. However if the applicant does live with her mother, in the family compound, the Tribunal accepts that there is a real chance she will again be exposed to serious violence, threats, harassment and intimidation from her cousin [Mr A].
The Tribunal notes that the applicant’s mother was born in [year] so is [age] years old. According to the applicant her mother is eligible to receive a pension. The Tribunal accepts that it will be difficult for the applicant’s mother to be able to financially support herself just on a pension and that she will not able to also financially support the applicant. The applicant would therefore need to find employment in the Philippines to be able to support herself and to contribute to her mother’s support.
The applicant has given evidence which the Tribunal accepts that she had little employment in the Philippines when she lived there. The available country information also indicates a relatively high rate of employment discrimination against the LGT communities in the Philippines. This, together with the applicant’s mental health issues, is likely to make it difficult for the applicant to find and maintain secure employment in the Philippines. The Tribunal therefore considers there is a real chance that the applicant will not be able to obtain secure employment in the Philippines and her situation there is likely to be impoverished.
The applicant has past experiences of being challenged by random men who were intolerant of her appearance and sexuality. In those instances the men wanted to ridicule and physically fight with the applicant as well as provoke her. The applicant’s apparent vulnerability, exacerbated by her mental health issues, appears to have made her an easy target for males trying to assert their masculinity. If the applicant returns to the Philippines there is no indication that such instances won’t reoccur, given the applicant’s presentation and sexuality has not changed and the country information shows insufficient improvement in combatting general societal homophobia and misogyny. DFAT’s report highlights that ’single women who have no other means of support, …, are at a high risk of violence and societal discrimination.’ Local NGOs also refer to poor LGBT people being most prone to becoming victims of violence. In view of the applicant’s past experiences and the available country information the Tribunal considers there is a real chance of the applicant being again subjected to serious physical violence or threats of serious physical violence from men in the Philippines who view her negatively for her appearance, presentation and sexuality. While the number of such men is likely to be fortunately low the Tribunal is satisfied there is still a real chance of the applicant encountering such a person and being seriously harmed by them. The Tribunal considers that the threat or risk of such violence is not at the level of an everyday experience and is likely somewhat random in nature. However the combination of the applicant’s personal characteristics heightens her vulnerability to both encountering and attracting harmful reactions from men prone to act against people such as the applicant, viewing her as a suitable easy target. The Tribunal is satisfied there is a real chance of such harm to the applicant occurring in the Philippines within the reasonably foreseeable future.
In summary the Tribunal is satisfied there is a real chance in the Philippines that the applicant will face serious physical violence or threats of serious physical violence from her cousin [Mr A] and other homophobic and misogynist men in society; and employment discrimination adversely impacting her ability to subsist in the Philippines. The Tribunal consider these harms amount to serious harm, particularly on a cumulative basis.
The Tribunal considers that the essential and significant reasons for the harm the applicant is at risk of are a combination of the applicant’s sexuality as a lesbian, her gender as a woman, and her vulnerable presentation due to her mental health issues. The Tribunal is satisfied that women are a particular social group in the Philippines and that lesbians, or members of LGBTQI communities, are a particular social group in the Philippines. The Tribunal is also satisfied that people with mental health issues are a particular social group in the Philippines.
The Tribunal is satisfied that the harm is a result of systematic and discriminatory conduct given it will be done to the applicant intentionally and selectively. The Tribunal is also satisfied that the chance of serious harm to the applicant exists throughout the Philippines and that there is no part of the country she would be safe from a real chance of serious harm.
The Tribunal notes the country information that laws and law enforcement in the Philippines to protect LGBTQI communities and women in the Philippines are not uniformly in place nationally nor reliably enforced. The Tribunal is therefore not satisfied there is effective protection available to the applicant in the Philippines from the serious harm she fears there.
The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in the Philippines as defined by s.5J of the Act.
Section 36(3)
There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds she has no such right and that she is not excluded from Australia’s protection by s.36(3) of the Act.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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 3046

13 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction