1720879 (Refugee)
[2023] AATA 2157
•12 April 2023
1720879 (Refugee) [2023] AATA 2157 (12 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Richard Hardy
CASE NUMBER: 1720879
COUNTRY OF REFERENCE: Philippines
MEMBER:Jane Marquard
DATE:12 April 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Statement made on 12 April 2023 at 4:30pm
CATCHWORDS
REFUGEE – protection visa – Philippines – particular social group – women – victim of family violence from father – trauma from repeated violent behaviour – fear of killing – complementary protection – reasonable internal relocation – effectiveness of law enforcement – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2 cl 866.611CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Chen Shi Hai v MIMA (2000) 201 CLR 293
CSO15 v MIBP (2018) 260 FCR 134
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Morato (1992) 39 FCR 401
Okere v MIMA (1988) 87 FCR 112
Queen v Pamkal [2019] NTSC 80
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZFZN v MIAC [2006] FMCA 1153
SZLVZ v MIAC [2008] FCA 1816Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is [an age]-year-old woman from Legazpi City, Philippines. She is unmarried and has no children.
She first arrived in Australia [in] November 2012 on a [Visitor] visa. She was granted a number of other visitor visas after the expiry of this visitor visa.
She applied to the Department of Home Affairs (the Department) for the visa the subject of this review on 25 March 2015. She claimed that she feared domestic and family violence from her father, whom she describes as violent, abusive and alcoholic.
The delegate of the Department accepted that the applicant had been a victim of domestic and family violence her whole life. The delegate refused to grant the visa on the basis that the applicant could have safely relocated within the country, noting her sister and brother-in-law in Australia could provide financial support. The delegate also noted that in old age, the father’s capacity to commit violence had diminished.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions.[4] For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]
[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[4] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
a.are a refugee (the refugee criterion);[6] or
b.qualify for complementary protection (the complementary protection criterion);[7] or
c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[8]
[6] Migration Act 1958 (Cth), s 36(2)(a).
[7] Migration Act 1958 (Cth), s 36(2)(aa).
[8] Migration Act 1958 (Cth), s 36(2)(b), (c).
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Brennan CJ).
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–5LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
The applicant must satisfy the statutory elements
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.
EVIDENCE
The applicant appeared before the Tribunal on 14 February 2023 to give evidence and present arguments. The applicant was represented in relation to the review and her representative appeared at the hearing.
The Tribunal has taken into consideration evidence at the hearing on 14 February 2023 and other evidence provided to the Department and to this Tribunal. The Tribunal has also taken into consideration independent information about the Philippines.
The evidence and material before the Tribunal is referred to where relevant in the findings. Not all the evidence is referred to in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[9]
[9] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
KEY ISSUES FOR DETERMINATION BY THIS TRIBUNAL
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
·Whether domestic and family violence took place as described (findings of fact)
·Whether there is a real chance of serious harm from the applicant’s father
·Whether the harm relates to all areas of the country
·Whether the applicant meets the complementary protection criterion, including whether relocation would be reasonable.
These issues and other threshold issues are discussed below.
FINDINGS AND REASONS OF THIS TRIBUNAL
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a passport from the Philippines, which expired [in] 2015. The Tribunal is satisfied on the basis of her passport and testimony that the applicant is a national of the Philippines, and that the Philippines is the receiving country for the purposes of the legislation.
Personal particulars and the applicant’s background
The Tribunal accepts the personal particulars and background information provided by the applicant as follows. This information has been consistently provided and there is no reason to doubt the evidence.
She is from Legazpi City, where she lived from birth until she came to Australia. Legazpi City is the capital of Albay province in Luzon islands. She described Legazpi as a fishing area, with many clubs and there is also a squatters area. Her family never travelled and she spent her whole life in this area. She has Filipino ethnicity and her family are Catholics but do not attend church.
Her mother passed away when she was [age] years old. Her father, one sister, [Sister A] and one brother, [Brother A] live in the Philippines. Her father has not remarried. She does not know the whereabouts of [other named siblings]. Another sister, [Sister B], lives in Australia.
Her brother [Brother A] is [deleted]. He is living next door to his father. He is married and has [specified children]. He ran away when he was a child and the applicant only got to know him as an adult.
She does not know where [the other siblings] are because when her mother died, they all separated and she does not know where they went. [Sister A] currently lives next door to her father and [Brother A]. She is married with [number] children.
The applicant’s
father was [an occupation 1] when she grew up. She thinks that he has now retired. He is in good health. He still lives in his own house, which he owns.
She said there were some other relatives living next door. She does not know if they are still there. She never met her grandparents.
After her mother passed away, she lived with her godmother, [named] from the age of [age] (1980) to the age of [age] (2005). During this time she did not spend time with her family including her brothers and sisters. Her godmother, her husband and [children] (who were much older than her) lived in the house. She is no longer in contact with them. Her sisters, [Sister B] and [Sister A], remained with her father.
While living with her godmother she went to school. After finishing high school in Legazpi, the applicant completed two years of a [specified qualification] at a [college]. Her godmother paid her fees. Later she was a carer and performed house duties for her godmother.
She moved back with her father when she was [age] years old, in 2005. She lived there until 2012 when she travelled to Australia.
Her sister, [Sister B], lives in Australia with her husband and child. She has lived in Australia for around 25 years.
In her Department interview the applicant claimed that she came to Australia for a holiday to see her sister. After this, she was granted eight visitor visas on the basis of information that she was nannying for her sister’s child. She confirmed at the Tribunal hearing that she first arrived in Australia [in] November 2012 on a [Tourist] visa and was then granted a number of other visitor visas after the expiry of this visitor visa. She is a nanny and carer for her sister and her sister’s child due to her sister’s health issues and because her brother-in-law has been busy with work.
Did the applicant’s father commit domestic and family violence in the Philippines?
The Tribunal has used the term ‘domestic and family violence’ as that term is understood in the National Domestic and Family Violence Bench Book[10] which is the well-respected Bench Book used in domestic and family violence matters by courts across Australia.
[10] National Domestic and Family Violence Bench Book, <Purpose and limitations - National Domestic and Family Violence Bench Book (aija.org.au)>.
When assessing claims the Tribunal must make findings of fact in relation to the claims made and in doing so, assess whether the claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[11]
[11] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, section 15.3.
Asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
As described in the Bench Book, it is often difficult for women to talk about their experiences of domestic and family violence.[12] The applicant told the Tribunal how difficult it was for her to talk about the experiences she had.
[12] National Domestic and Family Violence Bench Book, <Purpose and limitations - National Domestic and Family Violence Bench Book (aija.org.au)>.
There may also be nervousness and anxiety in presenting evidence to government authorities. Presentation may be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[13]
[13] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT website, <>
For these reasons, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[14] Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ have demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[15] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[16]
[14] Fox v Percy (2003) 214 CLR 118.
[15] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511 < Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
The Tribunal is conscious and mindful that there may be factors that consciously or otherwise influence decisions.[17] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[18] in regard to the process of credibility assessment. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[17] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.
[18] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
Taking this reasonable approach to credibility assessment the Tribunal is satisfied on the basis of the evidence set out in the following paragraphs that the applicant suffered serious domestic and family violence from her father when living in the Philippines.
In making this finding, the Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[19] the Department’s Refugee Law Guidelines[20] and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’),[21] which emphasise that the Tribunal should be mindful of the various factors which may impact on evidence, approach the assessment with an open mind and give the benefit of the doubt to an applicant who is generally credible. The courts have also indicated that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[22] The Tribunal found the applicant to be a candid, consistent and forthright applicant who did not attempt to embellish or exaggerate. At times she displayed the kind of deep-seated emotion which appeared to indicate direct experience of trauma. Her evidence was corroborated by her sister who also provided emotional evidence in which it was clear that she had been deeply impacted by the violence inflicted on her.
[19] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT website, < Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as reissued 1 July 2017.
[21] UNHCR Handbook, reissued February 2019 at [203]–[204].
[22] SZLVZ v MIAC [2008] FCA 1816 at [25].
In her evidence to the Department and Tribunal the applicant described a lifetime of domestic and family violence inflicted by her father. She told the Tribunal that as a child there was violence ‘nearly every day’. She said that he was violent to the whole family but it was ‘worse for the girls’. In her Statutory Declaration to the Tribunal dated 9 February 2023 she said that she lived in fear of her father who abused, hurt and threatened her.
The applicant’s evidence was consistently provided with the kind of detail and anecdotes often commensurate with truth. In the interview with the delegate of the Department she claimed that when she was around [age] years old, she can recall that her father would often come home really drunk and he would whistle for them. She said that they knew that when he whistled, they had to run as he would be wanting to punish them. He hit them with objects and his hand. She recalled one occasion when he sold their pet dog to buy alcohol. Then the dog ran back to them, and he was so angry with them, he hit them all with sticks. Their mother tried to stop him but could not. He had already spent the money.
The applicant claimed in her application and at the Department interview that her father was [an occupation 1], and he would threaten her and her sisters and mother with his knives and tools. She said that he was cruel to their mother and to his daughters. He would throw knives in her direction to scare her. In her interview with the Department, she claimed that this had happened since childhood, and was particularly bad on New Year’s Eve.
The children in the family witnessed physical and psychological abuse inflicted on their mother. In her interview with the Department, the applicant gave evidence of constant domestic and family violence inflicted on their mother before she passed away. She said that almost every day he would be violent to their mother. Her mother would cut wood for cooking and would wash neighbours’ clothes. When drunk her father ‘would hurt her’. She said that on one occasion she saw her father hit her mother with an axe. Her mother had a broken hand and was bleeding. Her mother told her to run away. At the Tribunal hearing she described this incident further. She said that her father grabbed the axe and swung it around and told them that their mother was ‘hopeless’ and could ‘do nothing’. Her mother tried to grab the axe and he cut her fingers off. The applicant said that it was a ‘nightmare’. Her mother went to hospital. The police did not come, and the neighbours did not want to get involved.
The Tribunal is satisfied that the violence occurred notwithstanding that the applicant voluntarily moved back in with her father in 2005 at the age of [age], knowing that he was a violent man. The Tribunal accepts her explanation that she thought that he would have changed, and because she felt some responsibility as her siblings had moved out. Her siblings had married. The Tribunal accepts her evidence that when she moved back he again threatened her and hit her, targeting her specifically as she stood up to him when he tried to hit other members of the family, and later when she tried to control the money her sister sent to the Philippines. She said at that time her sister in Australia was sending him money to build a better house. Her sister had returned to the Philippines previously for a holiday and found out that he had used money she had sent for alcohol and the house was uninhabitable. Her sister was embarrassed to stay in the house when she returned to the Philippines for visits, so she asked the applicant to go back to help build the house and manage the money. Her sister said she gave him an allowance for the applicant to manage. He was not happy with this, and started getting cruel and violent towards her. The applicant said that she was just trying to do everything she could to improve his house. She told her sister that it was too hard but her sister asked her to do her best. The house was being built and looked nice but he was still not happy. She said that her sister and brother-in-law travelled to the Philippines for a holiday. They were happy that they did not need to stay in a hotel and could stay in the house. He came in looking angry and said that she was greedy. When they were there he pretended to be nice but privately he swore at her and said he would kill her.
The Tribunal accepts her evidence that there was a particularly violent incident on New Year’s Eve in 2011. She said that sometimes he would grab a knife and swing it around. On this night, he tried to attack her with a knife. He came home really drunk and he was ‘at the bedroom knocking and kicking it’. She came out and asked what was wrong. He pointed at her and said she was greedy and that she took everything from him. He slapped her in the face. He said that he could kill her. She said that she did not do anything to retaliate. She said that he told her he hated her and wanted to kill her and grabbed the knife. She told the Tribunal that she ran to her brother’s house and her sister tried to intervene, and he turned on her sister. He chased her and her brother saw him holding the knife. Her brother threatened to kill their father so they no longer had to worry about him. She told her brother not to kill him as she worried about him going to gaol as he has children. The neighbours finally helped them and called the police. She said that they told the police that he had gone crazy, and the police took him to gaol. He was kept overnight but not charged. She said that since then her father has said that he will never forget that he went to gaol because of her.
She said that even after the night in gaol he continued to display violence. She said that she and her siblings went to the Barangay Council to seek assistance. The council members asked him to come in and they warned him that he must settle down. The police and council said it was a family matter. After this he told her that he wanted to kill her as he hated her and he started abusing her. She had to go to her godmother’s place to get away from him.
The applicant said that the last time she experienced violence from him was an incident a month before she left for Australia in which he locked her in the room and said that she would not come out alive. She went out through the ceiling. She said that she had also recently hit her with a saucepan.
There is also evidence that the applicant’s father committed violence on other family members. The applicant gave evidence that before her mother passed away, she asked her godmother if she could stay with her as her father was cruel. She thought it would be better there, but it was not. She said that when living with her godmother she was safe from him. However, her brother and sister were living with him for a year and then ran away as they were subject to continuing violence. In the Department interview she mentioned that after she left for Australia, her father chased her brother-in-law with a knife and so her sister [Sister A] moved out ‘because it’s no good for the kids’. She said that while staying with him, [Sister A] and her family lived in a tiny shop on the main road, ‘just to get away from him’. [Sister A] has also told her that her father hit [Sister A’s] daughter. In her interview with the Department, the applicant claimed that he hurt others as well, including his siblings, nieces and nephews. She tried to stop him, and he would threaten her. Her sister, [Sister A] has told the applicant that her father hit her daughter (his granddaughter) as well as inflicting violence on [Sister A]. [Sister A] and [Brother A] do not spend much time with the father currently as they ‘do not get along with him’. The father is in good health. They have their own houses. She was asked by the Tribunal why they would live right next door if he was violent. She said that they cannot afford to buy elsewhere.
The applicant said at the Tribunal hearing that in the last year her father has continued to display violence to [Sister A], [Brother A] and their children. She said that he is always violent. Her family in the Philippines have told her that their father recently went to gaol overnight as he hurt someone else’s child. The police came and took him to gaol for a day. [Sister A] has also told the applicant that one time when he was drunk, he yelled and argued with them, and threatened to hurt them all. She said that the children are scared of him. Her brother has told her that he is trying to control his temper and does not want to hurt his father. She was asked if her brother or brother-in-law could overpower him as he is [age]. She said that she is not sure.
Her evidence was corroborated by compelling evidence from her younger sister, who is a permanent resident of Australia. Her husband is an Australian citizen. She came to Australia at the age of [age].
The sister confirmed that when their mother passed away the children were all separated. She was left behind with her father and was around [age] years old. Their older sister came back to the house later and then left again due to the father’s abuse.
The sister also confirmed that when they were young, they saw their father commit domestic violence on their mother. She said that he would come home drunk and be violent to their mother and to them. They would be sleeping on the floor and would cry all the time. She said that he would start drinking in the morning. He would hit them with a belt and with wood. He also burnt her with an iron on her legs. She said that people could see the bruises and marks on her legs. She said that they went to school with no food, no shoes and no supplies. Their mother would get them from school. She said that their father was alcoholic and abusive. She said that it was hard to experience this abuse and they had an unhappy childhood. The sister provided an example of the abuse. Her older brother made a mistake and cooked a dry fish with kerosene instead of oil and the father forced the brother to eat it. She said that she used to hide behind her mother. He used to beat her until she wet her pants. They would put cardboard on their bottoms when he beat them, but he would discover it and ‘whack them harder’.
Her sister told the Tribunal that friends and neighbours did not help them. They covered for him at times. He asked neighbours if they wanted to fight him. She said that it was ‘scary’ for them. The teachers and doctors did not know what was happening. They were poor and people treated them badly.
The applicant’s sister said that she stayed in the house with her father from [age] until [age], and then moved to Australia. She said that during that time, he was always abusive to her. He was also abusive towards her brothers and sisters.
She met her fiancé through working as [an occupation 2].
The applicant’s sister said that when she moved to Australia, she promised to build a better house so they could go and visit. She confirmed that she had sent money to her father, but it had not been spent on the house and for this reason, she requested that the applicant manage the money. She said that her father was not happy with this arrangement, and started abusing her sister, as he did not have enough money to buy alcohol. She rang her sister and said she had to move to her godmother’s house, as he was so abusive.
She said that her sister could not move somewhere else. She said that she is not strong because of the abuse she experienced and is always scared and could not cope anywhere else. She said that when her sister first came to visit her in Australia she looked terrible and was ill from the abuse. She thinks that her father would seek out his sister if she lived somewhere else.
The refugee criterion
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
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.[23]
[23] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
Is the applicant a member of the particular social group of ‘women in the Philippines’?
The Tribunal is satisfied that ‘women in the Philippines’ comprise a ‘particular social group’, as that phrase is defined in s 5L of the Act, for the following reasons:
·there is a characteristic shared by each member of the group and the applicant, which is the female gender (s 5L(a) and (b));
·the characteristic is innate (s 5L(c)(i)) (noting that the Explanatory Memorandum to the Bill which introduced s 5L said that gender is innate);[24]
·or the characteristic distinguishes the group from society (s 5L(c)(iii));[25] and
·the characteristic is not a fear of persecution (s 5L(d)).
[24] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.178 at [1220].
[25] This section codifies the decision in Applicant S v MIMA (2004) 217 CLR 387 that a particular social group be distinguished from the society at large.
Australian courts have consistently found that ‘particular social group’ should be interpreted broadly[26] and the courts on the whole have accepted that women, or a subgroup of women, can comprise a social group.[27] In MIMA v Khawar (2002) 210 CLR 1 the High Court accepted that women or a subgroup of women can comprise a particular social group. Gleeson CJ found that it was open for the Tribunal to determine that women in Pakistan were a social group and said that the size of the group did not stand in the way. He said that ‘women in any society are a distinct and recognisable group and their distinctive attributes and characteristics exist independently of the manner in which they are treated.’
[26] Morato (1992) 39 FCR 401 (Lockhart J); Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309; Chen Shi Hai v MIMA (2000) 201 CLR 293.
[27] MIMA v Khawar (2002) 210 CLR 1; also accepted by the UNHCR, see Conclusion No 39 (XXXVI) Refugee Women and International Protection, 1985 and in the UK (case of Islam; ex parte Shah 1026) and Canada (case of Ward 739).
The Tribunal is satisfied that the applicant is a member of the particular social group of women in the Philippines.
Does the applicant fear her father if she returns?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Convention.
The applicant claims to fear that her father will abuse and seriously mistreat her if she returns to the Philippines. She said that he is happy she is away. In her Statutory Declaration to the Tribunal of 9 February 2023 she said that he was now aged [age] and lives in the same house. She said that he is the same as he has always been and is cruel, violent and an alcoholic.
The Tribunal is satisfied that the applicant fears being persecuted for one of the stated reasons as there is a long history of abuse, both as a child and an adult, and there have been recent instances of violence towards family members and others.
Does the applicant fear persecution for the reason of membership of a particular social group of women?
The persecution feared must be for one or more of the reasons mentioned in s 5J(1)(a) of the Act. These reasons are race, religion, nationality, membership of a particular social group or political opinion.
The stated reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.[28] The persecution feared need not be solely attributable to a reason set out in the legislation. However, persecution for multiple motivations will not satisfy the relevant test unless the reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 5(4)(a) of the Act. As stated by the UNHCR, ‘the expression “owing to well‑founded fear of being persecuted” – for the reasons stated – by indicating a specific motive automatically makes all other reasons for escape irrelevant to the definition. It rules out such persons as victims of famine or natural disaster.’[29]
[28] Section 5J(4) of the Act.
[29] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees>.
In Applicant A v MIEA (1997) 190 CLR 225, Gummow J said that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. The Tribunal notes that the applicant’s father has also committed domestic and family violence on his son. This may indicate a person driven by a propensity for violence borne out of his own inadequacies or need to control. However, as stated by the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ), decision-makers must evaluate the postulated connection between the asserted fear of persecution and the ground, keeping in mind the policy of the Convention, and the fact that human conduct is rarely, if ever, unidimensional.[30] Leading refugee law academic Professor Hathaway has said that ‘refugee law ought more clearly to mirror the sophisticated evolution in understanding gender issues that has occurred in international human rights law in recent decades’.[31] The ‘Our Watch’ submission to the 2021 Commonwealth government inquiry said that they had:
surveyed all of the nationally and internationally available literature on the drivers of violence against women. … What we found is that the key drivers of violence are gendered. They are about attitudes to gender. They are about structural gender relations and structural relations of power between men and women. These play out in many different ways.[32]
[30] Chen Shi Hai v MIMA (2000) 201 CLR 293.
[31] Hathaway and Foster, The Law of Refugee Status, 2nd ed 423.
[32] Dr E Partridge, Our Watch, Submission to the Commonwealth government ‘Inquiry into family, domestic and sexual violence’, March 2021.
The UN Declaration on the Elimination of Violence against Women identifies intimate partner violence as the product of historically unequal power relations between men and women and a primary manifestation of discrimination against women.[33]
[33] Declaration on the Elimination of Violence against Women, GA Res 48/104, UN Doc.Taking this contextual literature and the applicant’s particular circumstances into consideration, the Tribunal is satisfied that the persecution feared is for reasons of membership of the particular social group of ‘women in the Philippines’. The country sources cited later in this decision refer to a culture of entrenched views on male dominance. The applicant has said that her father mainly committed violence on the females, and the evidence of the applicant was that he inflicted violence on her mother and on her constantly and believed that they were inferior. The Tribunal has considered the true[34] and underlying[35] reason for her father’s behaviour. The Tribunal is satisfied that one of the essential and significant reasons for the persecution of the applicant would be membership of a particular social group of women in the Philippines. She fears harm from her father because she is a woman and is afraid that he will inflict harm on her in the Philippines because he is aware that the state will not protect her. All this evidence suggests that an essential and significant reason for the harm is the applicant’s membership of a particular social group of women.
[34] Okere v MIMA (1988) 87 FCR 112.
[35] SZFZN v MIAC [2006] FMCA 1153.
Is there a real chance of serious harm if the applicant were to return to her home country?
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept;[36] not only must a person fear persecution, there must also be a prospect of that fear being realised.
[36] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees>.
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[37]
[37] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p 171.
In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[38]
[38] Chan v MIEA (1989) 169 CLR 379 at 397.
The Tribunal questioned the applicant as to why she would still fear her father given that he is [age] years old, and she has been away from him since 2012. She said that he is still physically able to hurt her, as he is ‘capable of anything’ and is violent and cruel. She said that she never feels safe near him. It was very clear from the evidence of the applicant and her sister that they are both traumatised by how he has treated them in the past and continue to be extremely frightened of him.
The Tribunal accepts that the applicant’s father is still physically able to hurt her, given that he recently went to gaol for a night for hurting a child, and has continued to inflict violence on other family members in the Philippines. He has specifically targeted her for trying to prevent others from getting harmed and because she controlled money to which he wanted access. He was also angry with her for spending a night in gaol and because she reported him to Barangay. She said that if she returns to the Philippines she will fear for her life. She said that she ‘does not want to end up like a woman on television who will be killed through family violence’. It was very clear from her evidence that she is genuinely fearful and believes that he is capable of harming her.
The Tribunal is satisfied that there is a real chance of serious harm in the form of domestic and family violence from the applicant’s father, when considering the totality of the evidence, including past conduct and country sources about the status of women and violence against women in the Philippines. The reasons for this finding are set out in more detail below.
Firstly, in MIEA v Guo (1997) 191 CLR 559 the High Court said that ‘past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’ The applicant’s father has had a long history of psychological and physical domestic and family violence against the applicant and other family members.
Such violence over a long period of time does suggest propensity to inflict further violence. Courts in criminal proceedings have often admitted tendency evidence regarding the probative value as outweighing the prejudicial concerns, given that, for example, it is evidence of a ‘violent and controlling disposition to a domestic partner’.[39] While there are exceptions, domestic and family violence is usually characterised by a pattern of behaviour.[40] The Bench Book states, founded on a review of academic literature, that ‘domestic and family violence is most likely to involve a complex pattern of controlling and violence over a period of time, rather than a single incident’.[41] The applicant’s father was violent towards their mother when they were children and then towards all the children themselves. His violence is often fuelled by alcohol when he has threatened to kill them. He also appears to have a particularly sadistic and cruel side, forcing his son to eat a fish cooked with kerosene, and beating them harder when they put cardboard in their pants to prevent pain during beatings. This constant violence throughout his life towards family members particularly females strongly indicates that it would continue if the applicant returned to the Philippines.
[39] Queen v Pamkal [2019] NTSC 80.
[40] National Domestic and Family Violence Bench Book, last updated June 2021, < National Domestic and Family Violence Bench Book, last updated June 2021, <>
Secondly, the violence inflicted on the applicant has included threats with a knife. According to research referred to in the Bench Book, the risk of death or life-threatening injury is increased when a perpetrator has previously tried to use a knife.[42]
[42] National Domestic and Family Violence Bench Book, last updated June 2021, < H Douglas and R Fitzgerald, ‘Strangulation, domestic violence and the legal response’, (2014) 36 Sydney Law Review 231.
Thirdly, the applicant’s father has expressly stated that he will kill her on a number of occasions. While these may be regarded as threats he does not intend to carry out, when viewed alongside all the other factors referred to in this section, the threats do carry some weight. The Bench Book suggests that such threats are a particular risk factor.[43]
[43] National Domestic and Family Violence Bench Book, last updated June 2021, <>
Fourthly, sources indicate that domestic and family violence is widespread in the Philippines[44], and although women have access to education and employment, social attitudes undermine true equality and women who face domestic and family violence may be unable to access services. DFAT has stated that:
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).
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.
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.[45]
[44] Advocates for Human Rights, June 2022, < Philippines - Committee on the Elimination of Discrimination Against Women - Violence Against Women - June 2022 - The Advocates for Human Rights>
[45] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
While the Philippines is regarded as having strong laws to support gender equality, including a human rights framework called the Magna Carta of Women[46], social attitudes lag behind, with one in four women experiencing violence and 41% not seeking help.[47] Sources indicate patriarchal attitudes impact how domestic and family violence laws are implemented, ‘Filipino women are stifled by a patriarchal society emphasizing male dominance in family structures and larger social institutions’.[48] There is a high justification of wife beating.[49] The Philippine Commission of Women referred to a culture of silence:
Many survivors are reluctant to come forward because of experiences (her own or other women’s) of being humiliated and blamed for the violence or of the complaint being trivialized or dismissed. A lack of trust in the country’s legal and justice system—that it can truly help them—is another reason women do not report GBV.[50]
[46] World Bank, June 2020, < Gender-based Violence policy and institutional mapping (worldbank.org)>
[47] National Library of Medicine, 30 June 2022, <Violence against women in the Philippines: barriers to seeking support - PMC (nih.gov)>
[48] National Library of Medicine, 30 June 2022, <Violence against women in the Philippines: barriers to seeking support - PMC (nih.gov)>
[49] National Library of Medicine, 30 June 2022, <Violence against women in the Philippines: barriers to seeking support - PMC (nih.gov)>
[50] World Bank, June 2020, < Gender-based Violence policy and institutional mapping (worldbank.org)>
Sources summarised in a World Bank Report in 2020 found that although policies are in place, implementation of the laws is a problem. The applicant’s experiences of not being able to get help do accord with this information. The information suggests that there are misogynist attitudes in the government, Barangay captains often do not intervene and services may not be available. The applicant told the Tribunal that her mother told her that people told her husband to stop the violence, but he never did. The applicant said that relatives and other groups did not want to get involved and said it was ‘a family problem’. Her mother did not apply for protection orders and they just kept it to themselves, because of ‘the culture’. She said she and her siblings did not tell teachers or doctors as they were scared. They feared being punished by him as he would feel embarrassed. Further the police did not charge him with any offences, and the Barangay captain told her it was a family matter. The Tribunal accepts that the culture, and lack of enforcement by authorities, create an environment in which the applicant’s father believes he can act with impunity.
For the reasons set out above, considered cumulatively, the Tribunal is satisfied that there is a real chance of serious harm for the applicant for reasons of her membership of a particular social group of women in the Philippines. The Tribunal is satisfied, considering the record of domestic and family violence and the fact that he will feel empowered to commit violence without redress in the Philippines, that the chance of harm would be substantial, as opposed to remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379). The Tribunal is also satisfied that the harm would involve systematic and discriminatory conduct[51] as the harm would involve selective harassment[52] and non-random[53] conduct.
[51] Section 5J(4) of the Act.
[52] Chan v MIEA (1989) 169 CLR 379.
[53] MIMA v Haji Ibrahim (2000) 204 CLR 1.
Does the persecution relate to all areas of the receiving country?
Under s 5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the relevant receiving country.
The Tribunal has considered first whether there is a real chance of persecution in the area of the receiving country in which the applicant will return or be returned.[54] As set out above, the Tribunal is satisfied that there is a real chance of persecution in Legazpi City, the area where the applicant resided. However s 5J(1)(c) of the Act requires consideration of whether the risk is localised to that particular area or exists elsewhere.
[54] See CSO15 v MIBP (2018) 260 FCR 134.
The Tribunal has considered whether there is a real chance of persecution in other areas.
The Philippines consists of over 7,000 islands, which are divided into three major groups: Luzon (North), the Visayas (Central) and Mindanao (South). The population of the Philippines is approximately 110 million people. According to the 2000 census (the latest ethnographic data available), the main ethnic groups are: Tagalog (24.4 per cent), Bisaya/Binisaya (11.4 per cent), Cebuano (9.9 per cent), Ilocano (8.8 per cent), Hiligaynon/Ilonggo (8.4 per cent), Bikol/Bicol (6.8 per cent), Waray (4 per cent), other local ethnicity (26.1 per cent), and other foreign ethnicity (0.1 per cent).[55]
[55] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
According to DFAT:
Filipino citizens face no legal impediments to relocating within the Philippines and DFAT assesses that Filipinos can and do freely relocate internally, including for employment. Internal relocation options can be limited by the absence of family connections or the lack of financial resources. Internal displacement caused by natural disasters, or in Mindanao by conflict, is common and those affected face difficulties in accessing necessities such as shelter, food, water and sanitation, and in rebuilding livelihoods.[56]
[56] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
100. The applicant submitted that she could not be safe in another part of the Philippines. She said that her father might find her. She thinks he would look for her and has said that he wants to kill her. Asked why he would follow her if he was not a traveller and she was safe at her godmother’s, she said she was not really sure. The applicant’s representative submitted that there was a real chance of the applicant’s father becoming aware of where she was and finding her and harming her, due to the frequency and nature of the past harm. Her sister also claimed that he would find her and also emphasised that she has a very fragile mental state due to the abuse, with untreated effects of trauma and that she has very little life experience, such that she could not survive in a different area without family.
101. The Tribunal is satisfied, given her father’s age and that he did not travel when they were younger, that the applicant could safely relocate to another area and be safe from her father.
102. The Tribunal is not satisfied that the persecution relates to all areas of the country.
Findings on refugee criterion
103. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of membership of a particular social group of women.
Does the applicant meet the complementary protection criterion?
General principles – complementary protection
104. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’). The evidentiary standard is ‘substantial grounds’ for believing that there is a real risk of significant harm.
105. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Is there a real risk of significant harm from the applicant’s father?
106. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has found that the applicant was subjected to serious domestic and family violence when living in the Philippines. The Tribunal has also found, for reasons set out above, that the applicant faces a real chance of serious harm were she to return to the Philippines in the reasonably foreseeable future. For the same reasons, on the basis of the decision in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is satisfied that there is a real risk of cruel or inhuman treatment or punishment, or degrading treatment or punishment from her father if she were to be removed from Australia to the Philippines.
107. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
Would it be reasonable for the applicant to relocate to an area of the country where there would not be a real risk of significant harm?
108. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.
109. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ under the Convention, and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country.
110. In her Statutory Declaration to the Tribunal dated 9 February 2023 the applicant said that she could not live anywhere else in the Philippines as she had no relatives or friends elsewhere. She said that she does not have the skills or work experience to get work. She was also afraid her father would locate her. She told the Department that when her father attacked her, she went to reside with her godmother for short periods where she felt safe, but now that her godmother had died, she had nowhere to go and could ‘no longer run to her house’. The Tribunal put to her that she had a [specified] degree, carer experience, and could also avail herself of training courses for women available in the Philippines. The Tribunal put to her that her family could also provide her with some support. She said that it is not possible. She said that she is [age] years old and there is age discrimination in the Philippines, and she could not get a job. She said that her brothers and sisters have their own families.
111. The Tribunal is not satisfied, after considering her evidence and that of her sister, that relocation would be reasonable for this applicant. The applicant lived her whole life prior to coming to Australia in Legazpi City and did not have any experience of travel, applying for jobs, or living in other cities as a single woman in the Philippines. Her sister and brother live in Legazpi and she has no family elsewhere. Although she did travel to Australia, which demonstrates some capacity to move to a new place, she has resided with her sister in Australia, and this sister has provided work for her (as a nanny and carer in their house) and also taken care of her. The applicant has said that she is scared to be alone and does not trust anyone. She said that she does not want to get married as she fears ‘all men are the same’. She said that she does not know how she would survive as she is alone. She considers her sister and brother-in-law her family. She said it is ‘difficult to get over it’. Her sister confirmed that the applicant is distrustful of all men and has flashbacks. She said that her sister, although older than her, is unsophisticated and fragile, is always scared and is an ‘old’ [age]-year-old. She said that the applicant is not strong and will be unable to cope in a new town.
112. The representative submitted that the applicant has only lived in two households in the Philippines and one in Australia and has no family or social support in the Philippines. He said that she has experienced trauma and a fractured family, and her mental condition has not been addressed medically, but she would find it difficult to survive alone. He also pointed out that although she completed two years of a degree, this was a long time ago and she has had no work experience or training. It was submitted that she would be unable to subsist.
113. The Tribunal accepts that the applicant’s experience of domestic and family violence throughout her life has led to her feeling distrustful, insecure, timid and fearful and that this would impact on her ability to relocate and survive in a different place in the Philippines. The devastating impact on the applicant’s mental state was very apparent at the Tribunal hearing. She appears mentally and physically fragile and naive. Her sister, who was able to express very persuasively the impact on both of them, appeared somewhat stronger. The National Domestic and Family Violence Bench Book describes the impact of childhood violence as follows:
a child’s exposure to domestic and family violence at any age may result in a range of poor psychological, behavioural and physical outcomes including depression, anxiety, trauma symptoms, increased aggression, antisocial behaviour, temperament and mood problems, impaired cognitive functioning, learning and schooling difficulties, low self-esteem, pervasive fear, peer conflict, loneliness, increased likelihood of alcohol or substance misuse, and vulnerability to unemployment and homelessness. It is also possible that domestic and family violence-exposed children may as adults exhibit attitudes and behaviours that reflect their childhood experiences.[57]
[57] National Domestic and Family Violence Bench Book, <Purpose and limitations - National Domestic and Family Violence Bench Book (aija.org.au)>.
114. The Tribunal accepts the applicant has suffered significant trauma and has had very little life experience outside a family environment. The Tribunal is satisfied that her mental state and inexperience would make it impossible for her to subsist in a new environment.
115. The Tribunal is not satisfied therefore that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.
Is protection available such that there would not be a real risk of significant harm?
116. Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
117. The Tribunal is not satisfied that the level of protection is at a level which would reduce the risk of significant harm to something less than a real risk, when considering the independent sources about the volume of harm, patriarchal attitudes and the inadequacies in protection. As cited earlier, DFAT in their 2021 report on the Philippines, state that although there are constitutional protections, and 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.[58] The Report also states that protection orders are not always available, and women are not always able to access protection from domestic violence.[59] A report in the Lancet suggests that the Philippines is one of the most gender-equal countries in the region,[60] while also noting that the sociocultural landscape lags behind. However, according to a United Nations Report quoted in the DFAT Report, Filipina women and girls suffer disproportionately from gender stereotyping, stigmatisation and sexual shaming.[61]
[58] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
[59] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
[60] The Lancet, 2 May 2022, <Violence against women in the Philippines: barriers to seeking support - The Lancet Regional Health – Western Pacific>.
[61] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
118. Domestic violence against women is a serious and widespread problem in the Philippines, particularly so in rural areas.[62] Most of the reports deal with intimate or partner violence so it is difficult to ascertain the level of violence from other family members. A report in 2016 suggested that there was a high prevalence of violence against children with three out of five children being physically and psychologically abused.[63] Reports also suggest a ‘culture of silence’ which leads to reduced reporting of violence against women[64] with suggestions that almost half of women do not report gender-based violence.[65]
[62] Bertelsmann Stiftung, ‘2022 Country Report -Philippines', 23 February 2022; Philippine Statistics Authority, ‘One In Four Women Have Ever Experienced Spousal Violence (Preliminary results from the 2017 National Demographic and Health Survey)’, 26 March 2018.
[63] UNICEF, 2016, <National Baseline Study on Violence Against Children in the Philippines: Results (executive summary).pdf (unicef.org)>.
[64] Philippine Commission on Women, 2017, <Violence Against Women - Philippine Commission on Women (pcw.gov.ph)>.
[65] The Lancet, 2 May 2022, <Violence against women in the Philippines: barriers to seeking support - The Lancet Regional Health – Western Pacific>.
119. There are a number of protections available for domestic and family violence victims, including criminal laws, police desks, protection orders and women’s shelters. It is an offence under Philippine laws to physically, sexually or psychologically harm or abuse women.[66] There is also protection under the general criminal law, the Revised Penal Code of the Philippines. Police desks have been set up in order to make reporting more accessible.[67] There are public awareness campaigns to raise awareness of legal protections for women and encourage women to seek help.[68] Three types of protection orders (15 days, 30 days or permanent) are available from the local administrative regions known as Barangay or from courts to prevent violence against women and their children from their husbands, but does not include fathers or other family members.[69] Shelters are available across the Philippines,[70] including in Manila.
[66] Official Gazette (Republic of the Philippines), ‘Anti-violence against women and their children Act of 2004 (Republic Act No 9262)’, 8 March 2004.
[67] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
[68] Philippine News Agency, ‘Campaign to end violence against women pushed’, 12 December 2019; Philippine Commission on Women, n.d.
[69] Official Gazette (Republic of the Philippines), ‘Anti-violence against women and their children Act of 2004 (Republic Act No 9262)’, 8 March 2004.
[70] Weebly, <Shelters - KABALIKAT NI MILA (weebly.com); Refworld | Philippines: State protection and recourse available to victims of domestic violence, including recent legislation, police response and community-based services (2004-2006)>.
120. Despite the availability of these official protection mechanisms, non-governmental organisations report that cultural and social stigmatisation are barriers that prevent some women reporting rape and domestic violence.[71] The government established an organisation called ‘Inter-Agency Council on Violence Against Women and their Children’ to ensure implementation of the law and monitor anti-violence initiatives.[72] However, the efficacy of legal protections may vary based on personal circumstances and the effectiveness of law enforcement in various parts of the country.[73] The DFAT Report states that although police stations have ‘women’s desks’ for women to report violence and a specialist police command dealing with women’s issues, ineffectiveness of enforcement exists within the police force:
[71] United States Department of State, ‘Country Reports on Human Rights Practices Philippines’, 12 April 2022.
[72] Inter-Agency Council on Violence Against Women and their Children, <Inter-Agency Council on Violence Against Women and their Children - Philippine Commission on Women (pcw.gov.ph)>.
[73] United States Department of State, ‘Country Reports on Human Rights Practices Philippines’, 12 April 2022; BTI, 2022 ‘Country Report – Philippines’, Bertelsmann Stiftung, 23 February 2022; Philippine Statistics Authority, ‘One In Four Women Have Ever Experienced Spousal Violence (Preliminary results from the 2017 National Demographic and Health Survey)’, 26 March 2018.
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.[74]
121. DFAT suggests that although there is little data, gender-based violence is thought to have worsened significantly during COVID-19, with UNFPA estimating an additional 12,000 cases per month during lockdowns.[75]
122. DFAT also reports on the availability of services. DFAT suggests that Department of Social Welfare and Development, local specialist NGOs and some churches provide shelter and counselling services, which are more accessible in large cities. However, 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.[76] DFAT concludes that women who are victims of domestic violence may be unable to access services and single women without support are at a high risk of violence.[77] This conclusion is supported in the recent Lancet article, which states that health, social and legal services are largely inaccessible.[78] A UNICEF report in 2016 states that the ‘prevailing norms including the acceptance and justification of violence against women and children contribute significantly to the current prevalence of violence against children and increases the likelihood of continued violence against children.’[79] The report also refers to the acceptability of corporal punishment for children.[80]
123. A report by the Institute for War and Peace Reporting suggests that domestic abuse is still largely regarded as a family problem and this attitude has been exacerbated by a president who has made rape jokes and other anti-women remarks.[81] The Lancet in a recent article referred to the fact that the society is patriarchal, with men dominating in family structures, and women being deemed as subservient.[82]
124. The applicant’s experiences of lack of police protection accord with country sources which suggest that implementation lags behind the laws. She testified that when her mother was attacked with an axe and had to go to hospital, ‘the police did not come, and the neighbours did not want to get involved’. She also gave evidence that when her father attacked her with a knife, neighbours called the police and he was kept overnight in a station, but not charged. She also unsuccessfully sought a protection from the Barangay council. She said that they warned him, but told her it was a ‘family matter’. Despite a very serious level of violence by her father, she was unable to obtain protection. Recently her father attacked a child, and again, no charges were laid.
125. The Tribunal acknowledges that the Philippines has laws to protect women and has made attempts to improve implementation of protection measures for domestic and family violence victims. However, as reported in the sources set out above, there are problems with access to protection, fuelled by the acceptance and justification of violence against women.
126. The Tribunal is not satisfied therefore that there is protection such that there would not be a real risk that the applicant would suffer significant harm.
Is the real risk one faced by the population of the country generally and not faced by the applicant personally?
[74] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
[75] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
[76] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
[77] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Philippines’, 23 August 2021.
[78] The Lancet, 2 May 2022, <Violence against women in the Philippines: barriers to seeking support - The Lancet Regional Health – Western Pacific>.
[79] UNICEF, 2016, <National Baseline Study on Violence Against Children in the Philippines: Results (executive summary).pdf (unicef.org)>.
[80] UNICEF, 2016, <National Baseline Study on Violence Against Children in the Philippines: Results (executive summary).pdf (unicef.org)>.
[81] Institute for War and Peace Reporting, 27 May 2020, <Philippines: Sweeping Violence Under the Carpet | Institute for War and Peace Reporting (iwpr.net)>.
[82] The Lancet, 2 May 2022, <Violence against women in the Philippines: barriers to seeking support - The Lancet Regional Health – Western Pacific>.
The final qualification in s 36(2B) is that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’: s 36(2B)(c).
128. The Tribunal is satisfied that the risk faced by the applicant is one faced personally as she is the target of harm from her father.
129. The Tribunal is satisfied that the real risk is not faced by the country generally but is faced by the applicant personally.
Findings on complementary protection criterion
130. The Tribunal is satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines there is a real risk of significant harm.
CONCLUDING PARAGRAPH
131. 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)(aa).
DECISION
132. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s36(2)(aa) of the Migration Act.
Jane Marquard
MemberAttachment A – 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 of 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 of persecution would not exist if it were assumed that the fear of 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.
…
A/RES/48/104 (23 February 1994) art 4(c).
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