[1] This decision record relates to the second named applicant. There is a separate decision record for the first named applicant.
CASE NUMBER: 1728579
COUNTRY OF REFERENCE: Philippines
MEMBER:Christine Cody
DATE:3 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
STATEMENT MADE ON 03 MAY 2021 AT 1:54PM
CATCHWORDS
REFUGEE – protection visa – Philippines – Federal Circuit Court remittal – fears harm from creditors – applicant was properly invited to a hearing in accordance with s.441A(5) – failed to attend hearing – delay in applying for protection – inconsistent evidence –credibility concerns – decision under review affirmed
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
[The second applicant] married [the primary applicant] who has a separate decision record) (“the applicant”) on 20 April 2001. They are citizens of the Philippines. They have two children who reside in the [Philippines].
The applicant informed the Tribunal that they had separated in January 2019. The second applicant did not dispute this.[2] The Tribunal was requested by the agent to provide separate decision records and it agreed that this was appropriate.
[2] When this was put to him pursuant to s.424A of the Act.
Immigration and migration history
The applicants left the Philippines legally on [date] July 2005 and entered Australia on [date] July 2005 (holding tourist visas). Their visas expired on [date] October 2005, and the applicants became unlawfully present on [date] October 2005.[3]
[3] Sourced from each applicant’s visa application forms.
The applicants applied for protection visas on 7 February 2014[4]. They were represented by their registered migration agent. They provided written material and the applicant attended an interview before the delegate on 11 January 2015. The delegate refused to grant the visas on 16 January 2015. Essentially, the delegate did not accept that their claims were true.
[4] The first page of the decision record records this date; the second page however records a different date of 9 October 2013.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
1728579 (Refugee) [2021] AATA 2815
Case
[2021] AATA 2815
Decision Date
CaseChat Overview and Summary
This matter concerned an application for a protection visa by two applicants from the Philippines. The applicants claimed they feared harm from creditors to whom the first applicant owed substantial debts incurred for her mother's medical treatment and for obtaining Australian visas. The Federal Circuit Court had previously remitted the matter to the Tribunal for reconsideration due to a procedural error concerning the Tribunal's obligations under section 424A of the Migration Act 1958 (Cth).
The primary legal issues before the Tribunal were whether the applicants had established a well-founded fear of persecution or harm if returned to the Philippines, and whether the second applicant had been afforded procedural fairness, particularly in light of his failure to attend hearings and respond to notices. The Tribunal was required to assess the credibility of the applicants' claims, considering the evidence presented, including statutory declarations and the applicants' immigration history.
The Tribunal found that the applicants had not established a well-founded fear of harm. This conclusion was based on significant credibility concerns arising from inconsistent evidence and the applicants' delay in lodging their protection visa applications. Furthermore, the Tribunal determined that the second applicant had been properly invited to hearings in accordance with section 441A(5) of the Migration Act 1958 (Cth), despite his failure to attend. The Tribunal noted that correspondence had been sent to the applicants' registered migration agent, who was an authorised recipient, and that the second applicant had not advised the Tribunal of any change in representation or address.
The Tribunal affirmed the delegate's decision to refuse the protection visas. The Tribunal was not satisfied that the applicants had established a well-founded fear of persecution or harm, and it found that the second applicant had been afforded procedural fairness.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Both applicants were represented by their registered migration agent, [name deleted].The second applicant’s background According to the application forms and Form 80, the second applicant’s background can be summarised as follows:· The second applicant was born on [date] in San Jose, Occidental Mindoro, Philippines. He lists no ethnicity, and is a Christian who speaks, reads, and writes Filipino, and speaks and reads English. His mother, father, and one brother reside in the Philippines, one brother resides in [Country 1], and one brother in [Country 2].· The second applicant lived in San Jose from birth until April 1991. He then lived in Valenzuela City from April 1991 until July 2005.· He attended primary and secondary school from June 1983 until graduating from [a college] in March 1993. He then studied a [degree] at [an institute] from June 1993 until March 1996.· The second applicant worked as a ‘self-employed [Occupation 1]’ from March 1998 until July 2005.· The second applicant claims that he applied to immigrate to [Country 3] from the Philippines, but that his application was not valid (no date provided).· He was granted a TR 676 tourist visa on 22 June 2005.· Once in Australia and while unlawfully present, he moved to a new house five times (with the applicant). He states that he has been unemployed since July 2005. · His passport was issued [in] 2005 and it expired [in] 2010.The second applicant’s claims The second applicant submitted a Form C stating that he makes his own claims for protection, however no details of any claims were made in his application forms, other than to tick the box stating that he had experienced harm and he feared return. He referred to and relied upon the applicant’s statutory declaration of 7 February 2014 (‘the applicant’s first statement’), where she provided the following information: · The applicant worked as an accountant in the public and private sector for 8 years prior to coming to Australia. · The applicant borrowed AU$35,000 to pay for her mother’s medical treatment, and committed to pay AU$25,000 to the agent who acquired their Australian visas. These are very large sums of money, especially for the Philippines.· They left the children in the care of the applicant’s great aunt, [as] there was no other person in Manila who could care for them and allow the children to access their education and other facilities.· In 2008, the applicant’s father and her siblings moved out of home in Occidental Mindoro and have had to live in four different cities for less than a year each time. The applicants now realises that the people who lent the applicant money belong to a powerful gang who are prepared to do anything to recover their money.· The applicant’s aunt and the applicants’ children also moved out of Manila in 2008 after receiving unannounced visits and threats by the gang. When the applicant talks to the children, the children are always upset but tell the applicants not to return as they would be killed or harmed. The children live in fear of being found and harmed every day. · The applicant has limited contact with her father and siblings in the Philippines; they call her mobile number once every 3-4 months to let her know that they are still alive. In the communications she has had with her family since late 2007, they warned her that her creditors are threatening to harm them if she does not pay the debt. · The applicants fear being found and harmed by the people to whom the applicant is in debt, and they have threatened to harm and kill the applicants’ family members in the Philippines. · The applicants state they would face poverty because, even if they managed to negotiate a repayment plan, they would have to work long hours for little money, which would be paid to the gang.· The applicant fears that both she and the second applicant will be harmed by people who loaned her money firstly for her mother’s medical treatment, and secondly to acquire Australian visas. Their lives and safety will be in grave jeopardy if they are forced to return to the Philippines. · The migration agent explained their claims can be considered under complementary protection. The applicant will explain in her next statement the delay in lodging a protection visa application.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEThe Department The Departmental file contains various documents including the application forms, Form 80 (Personal Particulars) forms for each applicant, copies of the applicants’ passports, a statutory declaration by the applicant dated 7 February 2014 outlining her claims for protection, a statutory declaration by the applicant dated 30 December 2014 outlining further claims, and a copy of the delegate’s decision record. Both applicants were represented by their registered migration agent, [name deleted].The second applicant’s background According to the application forms and Form 80, the second applicant’s background can be summarised as follows:· The second applicant was born on [date] in San Jose, Occidental Mindoro, Philippines. He lists no ethnicity, and is a Christian who speaks, reads, and writes Filipino, and speaks and reads English. His mother, father, and one brother reside in the Philippines, one brother resides in [Country 1], and one brother in [Country 2].· The second applicant lived in San Jose from birth until April 1991. He then lived in Valenzuela City from April 1991 until July 2005.· He attended primary and secondary school from June 1983 until graduating from [a college] in March 1993. He then studied a [degree] at [an institute] from June 1993 until March 1996.· The second applicant worked as a ‘self-employed [Occupation 1]’ from March 1998 until July 2005.· The second applicant claims that he applied to immigrate to [Country 3] from the Philippines, but that his application was not valid (no date provided).· He was granted a TR 676 tourist visa on 22 June 2005.· Once in Australia and while unlawfully present, he moved to a new house five times (with the applicant). He states that he has been unemployed since July 2005. · His passport was issued [in] 2005 and it expired [in] 2010.The second applicant’s claims The second applicant submitted a Form C stating that he makes his own claims for protection, however no details of any claims were made in his application forms, other than to tick the box stating that he had experienced harm and he feared return. He referred to and relied upon the applicant’s statutory declaration of 7 February 2014 (‘the applicant’s first statement’), where she provided the following information: · The applicant worked as an accountant in the public and private sector for 8 years prior to coming to Australia. · The applicant borrowed AU$35,000 to pay for her mother’s medical treatment, and committed to pay AU$25,000 to the agent who acquired their Australian visas. These are very large sums of money, especially for the Philippines.· They left the children in the care of the applicant’s great aunt, [as] there was no other person in Manila who could care for them and allow the children to access their education and other facilities.· In 2008, the applicant’s father and her siblings moved out of home in Occidental Mindoro and have had to live in four different cities for less than a year each time. The applicants now realises that the people who lent the applicant money belong to a powerful gang who are prepared to do anything to recover their money.· The applicant’s aunt and the applicants’ children also moved out of Manila in 2008 after receiving unannounced visits and threats by the gang. When the applicant talks to the children, the children are always upset but tell the applicants not to return as they would be killed or harmed. The children live in fear of being found and harmed every day. · The applicant has limited contact with her father and siblings in the Philippines; they call her mobile number once every 3-4 months to let her know that they are still alive. In the communications she has had with her family since late 2007, they warned her that her creditors are threatening to harm them if she does not pay the debt. · The applicants fear being found and harmed by the people to whom the applicant is in debt, and they have threatened to harm and kill the applicants’ family members in the Philippines. · The applicants state they would face poverty because, even if they managed to negotiate a repayment plan, they would have to work long hours for little money, which would be paid to the gang.· The applicant fears that both she and the second applicant will be harmed by people who loaned her money firstly for her mother’s medical treatment, and secondly to acquire Australian visas. Their lives and safety will be in grave jeopardy if they are forced to return to the Philippines. · The migration agent explained their claims can be considered under complementary protection. The applicant will explain in her next statement the delay in lodging a protection visa application.
Decision
Reasons for decision
Further evidence and information are referred to below.Procedural matters relevant to the second applicant – decision to proceed to making a decision The applicants were both represented before the Department and in relation to the review before the first Tribunal by their registered migration agent, and their address for correspondence was their agent’s email address. The first Tribunal’s letter to the agent inviting the applicants to the hearing before the first Tribunal enclosed a copy of the Practice Direction effective 1 July 2015 which stated that “if you are included in an application with other family members and no longer want to be included in that application and want your application to be treated separately you should advise us in writing immediately (clause 2.2).” The Tribunal notes that it has received no such written application from the second applicant. After the matter was remitted back to the (current) Tribunal, on 17 November 2017 a staff member contacted the applicant seeking current correspondence details. The Tribunal wrote to both applicants at the street address, email address and the agent’s email address that day, stating that the FCCA had remitted the application, the case will be allocated to a member and then they will be contacted. The Tribunal stated that that it was important to notify immediately of any change of details, and enclosed forms to enable the applicants to advise if they changed their address details or if they appointed a representative (the Appointment of Representative Form). By operation of s.441EA of the Act, if two or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them. It was also noted that if they change their representative, they should immediately tell the Tribunal, otherwise the Tribunal will continue to correspond with the same representative. On 22 November 2017 the agent sent to the current Tribunal an Appointment of Representative form indicating that the agent was the authorised recipient and representative. At this time, the Tribunal notes that the applicants were still a couple (and the applicant did not contact the Tribunal at any stage to provide any change of address or change of representative). All correspondence from that time was sent to the agent on behalf of both applicants. In this regard, the Tribunal notes that if it provides a document to an authorised recipient, it is taken to have provided the document to each applicant (s.441G(2) of the Act). The matter was allocated to the current member in November 2019 and considered suitable for an in-person hearing. The COVID-19 pandemic intervened, leading to the Tribunal’s decision not to hold in person hearings. The Tribunal then recommenced holding some in-person hearings. On 10 July 2020 a staff member contacted the agent, who said that only he and the applicant would be attending a hearing. On 28 July 2020 Tribunal staff sent a hearing invitation addressed to both applicants, inviting them both to a hearing on 14 August 2020, to the agent at his email address. The Tribunal was subsequently provided with a statement from the applicant dated 3 August 2020 stating that she and the second applicant had separated in January 2019.
Ratio Decidendi
Legal Principle Established
The applicant informed the Tribunal that they had separated in January 2019. The second applicant did not dispute this.[2] The Tribunal was requested by the agent to provide separate decision records and it agreed that this was appropriate.[2] When this was put to him pursuant to s.424A of the Act.Immigration and migration history The applicants left the Philippines legally on [date] July 2005 and entered Australia on [date] July 2005 (holding tourist visas). Their visas expired on [date] October 2005, and the applicants became unlawfully present on [date] October 2005.[3] [3] Sourced from each applicant’s visa application forms. The applicants applied for protection visas on 7 February 2014[4]. They were represented by their registered migration agent. They provided written material and the applicant attended an interview before the delegate on 11 January 2015. The delegate refused to grant the visas on 16 January 2015. Essentially, the delegate did not accept that their claims were true.[4] The first page of the decision record records this date; the second page however records a different date of 9 October 2013. The latter date appears to be an error as the application forms were signed 7 February 2014 as was the Form 80. Further, the Departmental stamps on the forms are also dated 7 February 2014. The Tribunal accepts that the second date listed in the delegate’s decision record was in error. The applicants, represented by their agent, jointly made an application for review of the delegate’s decision on 28 January 2015 to the Tribunal (the first Tribunal) (1501220). They both attended a hearing and gave evidence[5], and provided further written material, to the first Tribunal on 27 May 2016. [5] In this decision record the source of the evidence given to the first Tribunal is the first Tribunal’s decision record unless otherwise specified. The first Tribunal affirmed the decision under review on 15 August 2016. The basis for the Tribunal’s decision was that the first Tribunal did not find the applicants to be credible and was not satisfied as to the genuineness of their claims. The applicants applied to the Federal Circuit Court of Australia (FCCA) for review of the first Tribunal’s decision. On 15 November 2017, the matter was remitted by consent on the basis that the first Tribunal did not comply with its obligations under s.424A/424AA of the Act. The current Tribunal has before it the files from the Department and the first Tribunal. The Tribunal held a hearing on 14 August 2020 and the applicant appeared before the Tribunal to give evidence and present arguments. The second applicant did not attend the hearing. The Tribunal sent two separate s.424A letters to the applicants and received a response from the applicant[6], but not from the second applicant. The Tribunal held another hearing on 1 April 2021 to ensure that the second applicant had an opportunity to give evidence and present arguments. The applicant and her agent attended. The second applicant did not attend.[6] The applicant’s response was to say that she had already responded to the matters raised at hearing.