1728579 (Refugee)
[2021] AATA 2815
•3 May 2021
1728579 (Refugee) [2021] AATA 2815 (3 May 2021)
DECISION RECORD FOR [THE SECOND NAMED APPLICANT]
DIVISION:Migration & Refugee Division
APPLICANTS: [First named applicant]
[Second named applicant][1]
[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
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 36, 65, 91R, 91S, 91V, 424AA, 424A, 426A, 441A, 441EA, 441G, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155Any 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. 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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.
In the applicant’s statutory declaration of 30 December 2014 (‘second statement’), signed by both applicants and thus adopted by the second applicant, the applicant provided the following further information:
· She fears returning to the Philippines because they have been unable to pay the debts they accumulated as a result of her mother’s cost of medical treatment and the fees to acquire the visitor visas to come to Australia.
· Money borrowed for Australian visas: The applicants’ (named) agent in the Philippines told them that she could get legitimate Australian visas and organise jobs for the applicants. The applicants paid her 1,000,000 pesos (AU$25,000), borrowed from two different lenders ([Lender 1] and [Lender 2]); the applicant knew the agent through her work as an accountant. The applicants had no savings and no collateral. The applicant signed post-dated bank cheques. The agent told them that they would need to pay another AU$25,000 within 18 months of entering Australia or else she would have their visas cancelled.
· Money borrowed for mother’s medical treatment: The applicant took out the loan for her mother’s medical treatment (AU$35,000) about 12 months before she came to Australia (thus in about June 2004). By the time they came to Australia, the applicant had paid back about one-tenth of the accumulated interest on the loan for the medical treatment. The applicant told her creditors ([Lender 3]) that she could only pay the debt if she worked in Australia.
· Prior to coming to Australia, the applicants had been living together in their home in Valenzuela City (since February 1999) with the maternal aunt, her mother[7] and their children. The applicant’s aunt told her that a number of letters have been sent to that address “by all of those creditors” (namely [Lender 3], [Lender 2] and [Lender 1]).
[7] In her application form she stated that her mother passed away [in] 2006.
· In about June 2006 her aunt told them that she had to leave that address as she did not feel safe, having been visited by men with tattoos and who looked like criminals. They had threatened to kill the aunt and the applicants’ children if the applicants did not pay their debts to “the companies that I have named above”. The men pushed their way into the home and asked for the applicants’ contact details in Australia. They took a family photo and the aunt’s gold bracelet. They threatened they will kidnap the children and use them as prostitutes if the aunt reports the men to the police.
· The aunt spoke to a distant relative in the police force, who said that the criminal gangs that chase unpaid debts on behalf of financial companies have a lot of influence with the police; they can buy anyone in the force and get away with murder.
· Since 2006 the aunt has moved to seven different places with the children. The aunt had to move each time after being found and threatened by different men demanding repayment of the loans. When she lived in [Suburb 1], two gang members came, but a neighbour called the police due to the commotion. The gang members spoke to the police and the police then left.
· The aunt said that she came close to being stabbed and killed on one occasion, and had to take the children to a safe place.
· When the applicants arrived in Australia they received help from people and the church. Church friends gave them cash-in-hand jobs, which was barely enough to survive. The applicants sent as much money back to their children as they could.
· Since they have been given legal permission to work in Australia the second applicant has worked as a [Occupation 1] and the applicant as a bookkeeper and they have sent as much money to the aunt as possible to fend off the gang members who keep finding them and demanding money. The aunt said that the gang members are now “demanding protection money in return for telling the finance company that the applicants will be returning soon to repay the full amount with interest”. The applicants have been anxious and desperate, they intend to work and repay their debt to their last penny, but it will take longer than they were told.
· The companies from which the applicant borrowed the money are legitimate, but they resort to illegal means and criminal actions to recoup their debts.
· They were misled by their agent in the Philippines, who said they would be able to repay the full loans within 18 months of coming to Australia. Another person in Australia was told a similar story: The agent gave them a phone number and told them to call ‘[A named person]’ upon arrival who would find them accommodation and jobs. [The named person] told them that he had been made the same promises, and had been unlawfully present in Australia for 2 years. He took them to a room, said they had to pay the room fee, and that he could not find them jobs. He gave the number of another person from the Philippines, ‘[another named person]’, who helped the applicants find two other places for accommodation. The applicants made friends at their new church, and they helped the applicants find new accommodation.
· About 2 years ago (approximately February 2012) the applicant had seen another migration agent and told them about the problems they had in the Philippines, but they said they couldn’t help them.
· The applicants did not know about protection visas until their friend organised a meeting with their current migration agent. Complementary protection was explained to them and they decided to apply for a protection visa on this basis.
· The applicants are worried about the aunt and their children. They face danger to their life and a life of poverty.
The delegate’s interview
The applicant attended an interview with the delegate on 9 January 2015.[8] Their migration agent also attended the interview. The delegate’s decision record contains a summary of the evidence the applicant gave the delegate at the interview, which includes the following statements:
[8] This was incorrectly referred to as 2014 in the decision record.
· She made an oath under s.91V of the Act that all the information presented in her application and interview is true and correct.
· Her father lives in Occidental Mindoro with her two sisters. Her father is unwell. He divides his time between living at the applicant’s home and living with her two sisters.
· She first borrowed money in 2003/2004. The equivalent of AU$35,000 was borrowed from [Lender 3], a lending institution over a two-year period for her mother’s medical treatment. She made repayments on a monthly basis but when asked how much she paid per month, she said she did not have a definite amount to pay. She just had to repay the loan within a specified period.
· When asked how much of the loan she had repaid before she left the Philippines, she said she was only paying the interest. She had regular work but the second applicant, who was a contractor, did not have regular work.
· When asked why they borrowed $25,000 to get a visa to come to Australia, she said she thought this was the only way she would be able to repay the money she owed. When asked why they didn’t just stay in the Philippines and repay the debt, she said that the second applicant did not have regular work and the repayments fell largely on her earnings.
· When asked what the agent promised her for A$25,000, she said a visa and permission to work in Australia for 18 months during which time they applicants could pay the agent and repay the loan for the applicant’s mother’s medical expenses.
· It was put to her that she travelled to another country so it could be expected that she should be aware that a tourist visa would not necessarily allow a person to work. She agreed. She did not contact the Department after she arrived to ascertain the conditions of her visa.
· It was put to her that she had come to Australia with a clear intention of breaching Australia’s immigration laws and that she had remained unlawfully in Australia since 2005. She said the agent told her she could sort it out with the Department after she arrived.
· When asked what they had been doing for 9 and a half years in Australia, she said they did not have permission to work so they could not really do work. It was put to her that they could not be living on thin air, and she then said they did cash in hand work from time to time.
· Although they came to Australia with the intention of working and paying off the debts, they had not paid off the debt because they did not have permission to work so they cannot get proper jobs. They rely on cash in hand jobs which is not much.
· When asked to explain the post-dated cheques, the applicant said that they were given to [Lender 3] when she borrowed money for her mother’s medical treatment. It was put to her that this appeared to be very irregular behaviour for what appeared to be a registered finance company.
· She does not have any documentation about the loans. When asked why not, she said they just gave her the money in the office. When the delegate put to her that it was difficult to believe that a company would loan such a large amount of money in the circumstances claimed without paperwork, she then said there was paperwork but she did not have it and she said that maybe she could request it.
· She could not remember when her aunt told her that she had been visited by men with tattoos making threats to kill her. When the delegate said it is difficult to accept that she has no idea about this, she then said it was about 3 years after they came to Australia (about 2008); she could not recall where the aunt and children were living but she thinks they had moved out of the applicants’ house. She doesn’t know where they were living at the time. Her aunt contacted the police who told her aunt that there is not much they could do.
· She could not remember when her aunt had a conversation with a distant relative about the police force; she could only remember that her aunt said the relative told her that the police cannot help them because it is not a big case.
· The incident when her aunt was nearly stabbed and killed occurred after the commotion at [Suburb 1] in 2014, a few weeks later. Her aunt sometimes gives the men money just to pacify them.
· She was asked if she had stolen or embezzled money and if that was the reason why she came to Australia. She said she had not. When asked if she was sure, she said yes, she was sure.
· It was put to her that it was hard to believe that she and the second applicant had left their two young children in the Philippines with her aunt who for 9 years has been pursued by gangsters and threatened with death because of the applicant’s bad debt; she appeared happy to allow her aunt and children to face the risk. It was suggested that the scenario she was putting forward was far-fetched and she said if she goes back she will be killed. It was put to the applicant that the aunt and children appear to be alive and well in the Philippines. In response she said they are really in danger. It was put to her that given the period of time that had elapsed, it is difficult to accept there is a real risk of significant harm.
· Concerning the delay in applying for a protection visa, she said that one year after coming to Australia she approached a migration agent asking what she can do. She said she was told that she could not do anything as there was no such claim.
· She cannot rely upon the police force in the country.
The delegate refused the application on 16 January 2015. The delegate did not accept the central claim that the applicants left their two young children, aged [age] years old and [age] years old, with the applicant’s aunt in the Philippines in 2005, and they have remained in Australia for 9 years while her aunt and children have been fleeing from place to place being pursued by gangsters on account of the applicant’s debt, and have been subjected to threats to put their children into prostitution and who have attempted to stab her aunt. The delegate considered the applicant’s claims to be far-fetched and fanciful and that the bulk of her claims were embellished for the purpose of her application. The delegate considered that the evidence supports that the applicants came to Australia with the express intention of breaching Australia’s immigration laws by working illegally and they subsequently remained unlawfully present in Australia for a period of 8 and a half years. The delegate did not accept the assertion that in all this time they only did occasional cash in hand jobs. Further, while the applicant’s claims centre around a claim to have borrowed around $60,000 from finance companies, she has not provided any documentary evidence. The delegate considered her evidence about her aunt’s experiences to be vague, lacking in detail and not credible. The delegate considers that her omission to mention certain crucial claims in her first statement was difficult to understand, and in particular given that she mentioned that her father and siblings had to move once, it defies explanation that she did not mention in the same statement that are aunt and children had been forced to move 7 times. The delegate was not satisfied as to the applicant’s credibility. The delegate therefore did not accept the applicant’s claims, and found that the applicants did not face a well-founded fear of persecution or a real risk of harm.
The delegate noted that the second applicant had also submitted a Form C, but that he had not submitted evidence of his own claims except that he is relying upon the claims of the applicant. As those claims were not accepted, his claim to fear harm for the same reasons was not accepted.
There are no non-disclosure certificates on file.
The First Tribunal File
The applicants applied to the Tribunal for review of the decision on 28 January 2015. The applicants provided a copy of the delegate’s decision record to the first Tribunal.[9] Both applicants were represented by their registered migration agent, [name deleted].
[9] And thus also to the current Tribunal.
The applicants appeared before the first Tribunal on 27 May 2016. They provided evidence which has been set out in the first Tribunal’s decision record dated 15 August 2016. Also provided at hearing was one photo of a letter dated 9 March 2012 from a law firm [Law Firm 1] to the applicant stating that the applicant had a debt to [Bank 1], she owed 1,633,000 pesos (the equivalent of AU$45,000) and that [Bank 1] had instructed the law firm to file a criminal complaint against the applicant if she did not repay the debt.
The second applicant told the first Tribunal that if they return to the Philippines they are in danger; threats had been made to the applicant’s aunt and to their children, they had to move, they cannot return and get jobs and pay off the debts as they will not earn enough money back there. When concerns were raised that the evidence indicates there was no urgency to paying back the debts, he said he spends about $40 per day on cigarettes and a lot of money on petrol driving the car to work. Other relevant evidence as well as concerns arising for this Tribunal as a result of the evidence, are referred to below.
After the hearing, on 17 June 2016 the applicants’ agent forwarded an email to the Tribunal attaching documents from financial institutions and law firms set out below. It was stated these were documents that the applicant’s sister was able to find and forward to her. It was acknowledged that the applicant did not mention the financial institutions and law firms in her oral evidence. It is stated that she has given authority to the Tribunal to make any independent enquiry to verify the authenticity of the documents. It is stated that the debts owed have increased due to accumulated interest and legal and collection fees and it would be impossible to negotiate a feasible settlement or payment plan for the applicants. If they return the applicants will face the same harm as the family members in the Philippines currently face. The applicants cannot afford to pay off their debts, the reasons the applicant incurred the debts are reasonable, the applicants intended to repay the debts and were persuaded by a false promise of lucrative employment in Australia, and the debts snowballed following the false promise. Also provided is an email from their daughter, [Miss A]. The agent acknowledged that the first Tribunal may give limited weight to this evidence. The attachments were as follows:
· a letter from [Debt Collector 1] to the applicant on behalf of [Bank 2], dated 9 March 2009, stating that the applicant owes 39,754.66 pesos for credit card expenditure and providing payment options;
· a letter from [Law Firm 2] to the applicant on behalf of [Bank 3 (formerly Savings Bank 1)], dated 16 April 2010, entitled “Discount Promo” stating that the applicant owes 46,305.84 pesos for credit card expenditure but the bank is willing to accept payment of 50% (23,152.92 pesos) as settlement for the full amount;
· a letter from [Law Firm 2] to the applicant on behalf of [Bank 3] , dated 16 April 2010, entitled “Formal Demand for Payment” relating to her credit card expenditure stating that the bank has instructed them to file a suit against the applicants for the debt amount of 46,305.84 pesos but it will give them a further 5 days to settle the account in full;
· a letter from [Bank 2] to the applicant, dated 11 March 2011, stating that the bank intends to assign the applicant’s debt (no amount is specified) to [Company 1];
· a letter from [Bank 2] to the applicant, dated 26 July 2011, stating that the applicant’s debt (no amount is specified) has been assigned to [Company 1];
· a letter from [Bank 1] to the applicant, dated 1 September 2011, stating that the debt (no amount is specified) will be entrusted to a debt collection agency, [Debt Collector 2];
· a letter from [Bank 1] to the applicant, dated 2 January 2012, stating that the debt (no amount is specified) will be entrusted to a debt collection agency, [Law Firm 1];
· a letter from [Insurance Corporation 1] to the applicant dated 9 January 2012, stating that the applicant owes 21,675.70 pesos to [Bank 4] and demanding payment;
· a letter from [Law Firm 1] to the applicant, dated 9 March 2012, stating that [Bank 1] has instructed them to file a criminal complaint against her under the “Anti Bouncing Checks Law” in relation to an outstanding loan of 1,633,519.16 pesos and annexing an unsigned affidavit in relation to the proposed proceedings;
· a letter from [Bank 1] to the applicant, dated 1 May 2012, stating that the debt (no amount is specified) will be entrusted to a debt collection agency [Debt Collector 3];
· a letter from [Bank 1] to the applicant, dated 1 August 2012, stating that the debt (no amount is specified) will be entrusted to a debt collection agency, [Law Firm 1];
· a letter from [Law Firm 1] to the applicant, dated 7 September 2012, including payment options for the debt to [Bank 1] of 1,696,638.39 pesos;
· an email from [a] Law Office to the applicant, dated 12 September 2012, regarding payment options in relation to the debt to [Bank 1];
· a letter from [Law Firm 3] to the applicant on behalf of [Bank 5], dated 3 April 2013, stating that [Bank 5] will commence legal action over the unpaid debt of 52,870.96 pesos, unless the applicant pays 29,607.74 pesos as settlement;
· a letter from [Law Firm 3] to the applicant on behalf of [Bank 5], dated 4 June 2013, stating that they are recommending legal action by [Bank 5] over the unpaid debt of 52,870.96 pesos, and annexing a letter to [Bank 5] recommending legal action and a statement of claim;
· a letter from [Bank 6] to the applicant dated 2 January 2014 demanding payment of the unspecified debt and alerting that the debt will be passed to a debt collection agency;
· a letter from [Bank 6] to the applicant dated 1 July 2014, demanding payment of the unspecified debt and alerting that the debt will be passed to a debt collection agency;
· a letter from Credit[Company 2] to the applicants on behalf of [Company 1], dated 31 May 2015, being a final demand for the loan amount of 97,418.80 pesos within 5 days;
· a letter from [Company 2] to the applicants on behalf of [Company 1], dated 5 April 2017, being a final demand for the loan amount of 97,418.80 pesos;
· Another copy of the letter dated 9 March 2012 referring to a threat to initiate criminal proceedings (as produced at the first Tribunal’s hearing) was provided;
· an email purportedly from the applicants’ child [Miss A], dated 7 June 2016, stating that it must be a surprise for the applicants to receive a long message from her after so many years. However, she is scared, people keep coming after them; she wrote that on Tuesday two men came and she hid; the aunt is always sick; they can’t go outside; her social life is affected because she can’t go outside easily as she is afraid the men will see her. The applicant should not return as [Miss A] always hears that they will kill her; she asked the applicant to come and collect them and take them away from there. [Miss A]’s grandfather has cancer but, according to her email, they cannot visit him as they do not know where he is.
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 accept the applicants’ credibility, and was not satisfied as to the genuineness of their claims.
The applicants applied to the 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 as follows:
The MIBP concedes that the decision of the Tribunal dated 15 August 2016 (case number 1501220) is affected by jurisdictional error on the basis that the Tribunal breached s.424A(1) of the Migration Act 1958 (Cth) (Act) by not giving the [second applicant] clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review, either pursuant to the procedure set out in s.424A of the Act, or the alternative procedure set out in s.424AA of the Act.
In support of this concession, the first respondent notes the following relevant matters:
(a) before the Tribunal both [applicants] advanced claims for protection arising out of the same factual circumstances – being that they owed money to money lenders in the Philippines, arising out of their inability to repay a loan taken out to cover (principally) the [applicant]'s mother's medical expenses, and the money lenders had enlisted criminal gangs to enforce the debt;
(b) both [applicants] gave oral evidence at a hearing before the Tribunal in support of their protection claims;
(c) in the course of her oral evidence, the [applicant] provided the Tribunal with three pieces of information which, in the Tribunal's reasoning, went beyond mere 'gaps, defects or lack of detail or specificity' in her account (cf. SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (SZBYR) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, citing VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123 at [24] per Finn and Stone JJ) and rather contained 'in their terms, a rejection, denial or undermining' of both applicants' claims for protection (cf. SZBYR at [17]). That information was that:
(i) the fact that the [applicant] said that she and the [second applicant] had not worked in Australia for nine years (which would have resulted in them being able to repay the loan wholly or in part, thereby alleviating the threats to their children and family who remained in the Philippines) was used positively to undermine both applicants' protection claims at [80];
(ii) the fact that the [applicant] said that she had made no attempts to obtain documentary evidence of the loan was used positively to undermine both applicants' protection claims at [86]; and
(iii) the fact that the [applicant] could not give any evidence about her mother's condition or treatment (for which the loan was allegedly taken out to pay) was used positively to undermine both applicants' protection claims at [77];
(d) because these aspects of the [applicant]'s evidence to the Tribunal (which were not also given by the [second applicant] to the Tribunal) were used positively to undermine both applicants' protection claims, they attracted obligations under s.424A(1) of the Act (cf. NBKS v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 156 FCR 205; [2006] FCAFC 174 at [39] per Weinberg J) as against the [applicant] (cf. SZGSI v Minister for Immigration & Citizenship (2007) 160 FCR 506; [2007] FCAFC 110 at [55]–[58] per Marshall J, Moore and Finn JJ agreeing);
(e) it is clear from the Tribunal's file and its decision record that the Tribunal did not comply with – and did not attempt to comply with – either the procedure set out in s.424A of the Act, or the alternative procedure set out in s.424AA of the Act, with respect to that information; and
(f) consequently, the Tribunal breached s.424A(1) of the Act.
The Second Tribunal File
On 3 August 2020 the applicant swore a new statutory declaration (third statement) in which she stated as follows:
· She separated from the second applicant in January 2019.
· Her aunt who was caring for the children passed away [in] 2018 and the second applicant’s parents returned to the Philippines from [overseas] to care for the children. The children have been living with the second applicant’s parents since then. Her son continues to change schools and her daughter goes to university now.
· In telephone conversations, the second applicant’s parents have told her that they have to rent temporary accommodation and keep on moving to new places due to the threats they received from criminal individuals hired by people to whom the applicant owes money. Those threats were issued to the second applicant’s parents by placing notes in the mailbox, verbal messages conveyed to them in person and through the neighbours and phone calls made to her children and in-laws.
· She has no further protection claims to add to what she has already submitted with her protection visa application.
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.
On 13 August 2020 a Tribunal staff member contacted the agent seeking information about the second applicant. The Tribunal requested any new contact details for the second applicant and noted that he was invited to the hearing, and sought confirmation that he is aware of the hearing, as the member would like him to attend the hearing the following day. In response the agent said that he only has a telephone number for the second applicant and he had not heard from him. He said that he would try to obtain more contact information.
On 14 August 2020 the second applicant did not attend the hearing. The applicant said that he told her a few days earlier that he is sick and doesn’t want to come to the hearing. The agent said that he didn’t have the second applicant’s email, but the agent had sent a phone message on 31 July 2020 informing the second applicant of the hearing, asking the second applicant to call him and provide his email address, and providing a screenshot of the hearing invitation details to the second applicant. The agent said that he copied and sent the same message twice, on 3 August and on 7 August, but he has not received a response. The applicant provided the Tribunal with the second applicant’s email address and his phone number (the same one the agent had been using, and the applicant said this was a current number as she had spoken to him earlier that week). The Tribunal called him twice from the hearing room, but there was no response. The applicant said she had no idea where he was living and that they had been separated since January 2019. The agent said he had tried to contact the second applicant; he knows the second applicant has received his messages. He doesn’t answer the agent’s calls. The agent said that he will do his best to contact the second applicant however is not sure that he has any interest in appearing before the Tribunal to answer questions about protection claims as he has not been answering the agent’s texts or phone calls.
The Tribunal member requested that enquiries be made by staff who called the second applicant at 9.52 am and recorded a note: I attempted to call [the second named applicant]. There was no answer and no option to leave a voice message. At 9:58 am the Tribunal sent an email to the second applicant stating that it is currently holding a hearing in his matter and wishes to take evidence from him. Could he please urgently provide a phone number on which the Tribunal can call him, so that he can participate in the hearing. The Tribunal received no response. The Tribunal officer also checked Departmental records and informed the member that no updated contact details had been provided by the applicant to the Department. After conducting the hearing with the applicant, the Tribunal sent a further email that day, at 3:27 pm, to the second applicant’s email address (and the agent) stating:
The Tribunal previously stated in its hearing invitation addressed to you that it did not have sufficient information on the material before it to make a positive decision. You were thus invited to a hearing. The Tribunal notes that you did not attend the hearing today. Your wife informed the Tribunal that you were sick but that you also did not otherwise want to attend. The Tribunal telephoned you from the hearing on [phone number deleted] which was given to us by your wife but you did not respond. If you seek to attend a hearing with the Tribunal please inform us within 7 days, providing supporting information as to why you did not attend the hearing today. The Tribunal will be sending your agent a post-hearing letter inviting comments/responses to some information. Please note that you should keep the Tribunal updated at all times with your current contact details, or you may miss important information.
The Tribunal did not receive a response. On 17 February 2021 the Tribunal sent out separate s.424A letters to the applicant and second applicant. The Tribunal sent the second applicant’s letter to both the second applicant’s email address (as informed at hearing) and to the agent’s address. The second applicant did not reply.
On 16 March 2021 a Tribunal staff member attempted to telephone the second applicant but could not reach him. The phone was not answered and there was no option to leave a voicemail message.
On 16 March 2021 the Tribunal forwarded a further hearing invitation to the applicants, with the purpose of ensuring that the second applicant had an opportunity to present evidence and arguments at a hearing, which was scheduled for 1 April 2021. The invitation was sent to the agent and to the second applicant’s email address. The second applicant did not respond to the invitation nor did he attend the second scheduled hearing. The agent said that he had not heard from him.
Decision to proceed: The second applicant had been informed that any change in his circumstances should be notified to the Tribunal; he has not done so. He has been twice provided an opportunity to attend a hearing before the current Tribunal but did not attend. He had been informed in the hearing invitations that the Tribunal had considered all the material it had about the application but could not make a favourable decision on that information alone. The hearing invitations stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice. He was also sent an SMS reminder about the hearing scheduled for 1 April 2021 the day before the scheduled hearing; the delivery of this message however failed.
The second applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearings. Having reviewed the Tribunal file, the Tribunal is satisfied that the second applicant was properly invited to a hearing in accordance with s.441A(5). Additional steps have been taken to contact the second applicant however he has made no contact with the Tribunal since the matter was remitted by the court. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the second applicant to appear before it.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Country of reference
The second applicant previously provided a passport which shows that he is a citizen of the Philippines. The Tribunal accepts that the second applicant is a national of the Philippines, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is the Philippines.
The issue in this case is whether the second applicant meets the definition of refugee or is entitled to complementary protection or is a member of the family unit of a person entitled to a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility of claims
Relevant law as to whether the Tribunal is satisfied as to the applicant’s claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
As Kirby J observed in Dranichnikov v MIMA:[10]
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[11]
[10] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at [1100].
[11] As cited in Sun v MIBP per Flick and Rangiah JJ at [69].
In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has considered on the evidence before it whether there is a real chance that the second applicant has a well-founded fear of persecution and/or a real risk of significant harm if he returns to the Philippines.
The Tribunal had concerns about the credibility of the claims and the second applicant (and the applicant) arising from the evidence prior to its hearing on 14 August 2020, as well as the evidence from the applicant at that hearing which undermined the claims.
The Tribunal considers that the second applicant had two opportunities to appear before the current Tribunal and give evidence to support the claims, as well as an opportunity to comment on or respond to a s.424A letter; he failed to do so. He had been advised by the Tribunal that it had insufficient information before it to make a favourable decision on his behalf. The Tribunal is left with unanswered concerns on the basis of inconsistent, changing and unlikely evidence, which are set out below.
The second applicant’s lack of knowledge, and inconsistent and changing evidence as to which entities the applicant borrowed money from undermined the claims that debts were accrued
Firstly, the Tribunal was concerned with the second applicant’s evidence to the first Tribunal that he was not sure who the applicant borrowed money from. This caused concern because this borrowing is the reason why they left their children and families in danger and remained in Australia unlawfully for 9 years; then claimed protection in 2014, and then remained in Australia to date and it is the reason why they claim a joint fear of harm if they return to the Philippines.
It was also of concern because, having regard to the evidence the applicant himself provided, it would be reasonable for him to know the entities from whom his wife borrowed. In this regard:
· The second applicant signed and thus adopted the applicant’s second statement where she claimed to have borrowed AU$35,000 from a single entity, [Lender 3], for her mother’s medical treatment; and AU$25,000 from two different lenders ([Lender 1] and [Lender 2]) in order to acquire legitimate visas and the ability to come to Australia. The Tribunal would think that if he had genuinely signed and adopted her statement and if the contents of the statement were true, he would have known who she claims to have borrowed money from and he would not have told the first Tribunal that he did not know who his wife had borrowed money from.
· The second applicant provided to the Tribunal with the application for review the delegate’s decision record which records that the applicant said at interview that she borrowed AU$35,000 from [Lender 3] for her mother’s medical treatment.[12] The Tribunal would think that in providing the delegate’s decision record to the Tribunal he would have known who the applicant claims to have borrowed money from and he would not have told the first Tribunal that he did not know who she had borrowed money from.
[12] As set out in the delegate’s decision record provided to the Tribunal by the applicants.
A further concern arose because the applicant herself gave changing evidence as to who she borrowed money from:
· At the first Tribunal at hearing on 27 May 2016 she said that she borrowed AU$35,000 for her mother’s expenses, and AU$25,000 for the agent, both debts were borrowed from three different lenders: [Lender 1], [Lender 2] and [Lender 3]. When asked how much she borrowed from [Lender 1] she said she could not remember. She then said that she also borrowed money from a bank. When asked which bank, she could not remember which bank it was. She then said that maybe it was [Bank 2]. When asked how much she borrowed from them she said she could not remember. However, when it was put to her that she had produced at hearing a letter dated 9 March 2012 from a law firm stating that she had a debt to [Bank 1], she owed 1,633,519.16 pesos (the equivalent of AU$45,000) and that [Bank 1] had instructed the law firm to commence legal proceedings against her if she did not repay (paras 37, 67), but that she had not mentioned owing any money to [Bank 1], she said banks merge and change names all the time. She also said that she had forgotten to mention [Bank 1]. When it was put to her that it was difficult to understand how she could forget such a large amount of money, she said that she owes so much that she has forgotten all the different lenders.
· The applicant told the current Tribunal that when she was in the Philippines in 2004 she believed that the debt of AU$10,000 for her mother’s medical treatment was still manageable, and that she had been making the following repayments (indicating that she owed money in the Philippines to the following entities for her mother’s medical treatment):
a.$50 to [Lender 3]
b.$50 to [Lender 1]
c.$50.00 pm to [Lender 2]
d.[Bank 1] on average $100 pm
e.[Bank 2] on average $100 pm (4000 pesos)
f.Repayments to friends as she sometimes borrowed money from private people.
· She produced 18 documents after the first Tribunal’s hearing dated between 2009 and 2016 indicating that she had borrowed money from the following entities: [Bank 2], [Bank 3], [Bank 1], [Bank 4], [Bank 5], and [Bank 6]. Other than the reference to [Bank 2] having changed its name, none of these letters indicate that the banks have changed their names.
The Tribunal would think that if any of the applicant’s evidence was true then the second applicant would have been able to corroborate at least some part of her evidence and he would have been able to tell the first Tribunal the names of at least some of the entities from whom his wife claimed to have borrowed money.
The Tribunal would also expect that the applicant would give consistent evidence as to whether she had borrowed AU$35,000 from a single source ([Lender 3]) or from three sources, or AU$10,000 from six sources for her mother’s medical treatment and medications. The Tribunal would also expect that she would not claim to have borrowed from a single source for her mother’s medical treatment and then claim that she had borrowed from “the same” three lenders for the visa. The Tribunal would think that she would not have made changing claims as to who she borrowed from, and for which purpose, if her claims (and the applicant’s claims) were true.
The second applicant did not attend a hearing to discuss these concerns. The second applicant’s lack of knowledge of the entities from whom it is claimed the applicant borrowed money, and the applicant’s inconsistent and changing evidence in this regard, was put to the second applicant in a s.424A letter however he did not respond. The Tribunal considers that the above undermines the second applicant’s credibility and claims that the applicant borrowed funds and accumulated debts leading to a series of adverse consequences.
Inconsistent evidence relating to the availability of documentation which undermines the debts claimed to have been incurred
Secondly, the second applicant gave evidence at the hearing before the first Tribunal that the applicants did not have any documents about the debts or money-lenders other than the letter the applicant produced to the first Tribunal on the day of the hearing (the letter from a law firm which stated that the applicant owes more than 1.6 million pesos to [Bank 1] and they will seek to file a case against her). This evidence was not only inconsistent with the applicant’s evidence at that same hearing, but was also inconsistent with other changing evidence that had been given by the applicant at different stages of the proceedings as to whether there is or was documentation available relating to the debts/loans/expenses, as set out below:
· The applicant did not produce any documentation to support her claims with her protection visa application.
· The delegate asked her at interview in January 2015 if she had any documentation regarding her loans and she said she did not have any; they just gave her money in the office. When put to her that it was hard to believe that she could borrow a large sum of money without paperwork her evidence then changed and she said there is paperwork but she does not have any documents relating to her loans and maybe she can request it.[13]
· She told the first Tribunal at hearing on 27 May 2016 that she had no documentary evidence about the existence of her claimed debts. When asked why not, she said that she had not brought them to Australia. When asked if she had tried to get any documents since she arrived, she said no, neither of the applicants had tried to get any documents since their arrival in Australia.
· After the first Tribunal put to her that she had produced at that hearing a letter purporting to be from a law firm stating that she owes more than 1.6 million pesos to [Bank 1] and they will seek to file a case against her, she then changed her evidence and agreed that there was one letter.
· On 17 June 2016, 3 weeks after the first Tribunal’s hearing, she produced to the first Tribunal 18 letters/documents[14] all of which pre-dated the hearing, were all addressed to the applicants’ home address in the Philippines, which she claimed to have obtained in the 3-week period after the hearing before the first Tribunal.
· She told the current Tribunal at hearing that there are so many letters, from the time she was in the Philippines in 2004, to date, so many letters are being sent to her. She said she had (actual) possession of the letters being sent to her every year. The Tribunal put to her that if she had these letters every year, it would think that she would know what her debt levels were every year. She responded that this was her fault, she did not keep a record of what is the total and interest owing. The Tribunal asked if she was saying that she didn’t keep a record of her debts, like an accountant’s ledger, because she was receiving these documents every year. She agreed. This evidence indicated that she did have documentation available both in the Philippines and in Australia relating to the debts. However, she later changed her evidence at hearing to say that she had not had the 18 documents before the first Tribunal hearing (claiming that for the 11 years while in Australia, prior to the first hearing, she had received none of the correspondence about the debts).
[13] Delegate’s decision record.
[14] As noted above, one of the letters was a copy of the letter produced at hearing.
The applicant’s claim that she received letters every year and this was the reason that she did not keep a ledger undermines the second applicant’s claim that they had no documents about the debts other than that one letter produced on the day of the first Tribunal’s hearing. The Tribunal would think that he would have been aware of the existence of the documents in the applicant’s possession ever since 2004 relating to these debts which led them to leave the Philippines.
Further, the applicant’s changing and inconsistent evidence about whether or not she had documents or letters about the debts undermines the claim that the debts actually existed.
Further concerns arose in this regard because the applicants had lodged a protection visa application relating to the existence of these debts on 7 February 2014 and were aware from the start that supporting documents were requested (the Form B requested documents be listed and provided), the delegate’s decision record (provided to the Tribunal by both applicants) dated 16 January 2015 stated that the delegate did not accept the claims of the debts in part because no documentation had been produced to support these claims. Both applicants lodged an application for review with the (first) Tribunal and were informed by the acknowledgement letter from the first Tribunal dated 28 January 2015 that any documents should be provided as soon as possible. Further, the attachments to the first Tribunal’s letter dated 12 April 2016 stated that any documents not previously produced should have been made available to the first Tribunal 7 days prior to the hearing. Neither applicant provided any documents related to the debts between the time they lodged their protection visa applications (7 February 2014) up until the hearing before the first Tribunal on 27 May 2016, despite the claim that these documents subsequently produced (dated between 2009 and 2016) were in the Philippines (and the applicants have contacts in the Philippines). The Tribunal considered that if the debts actually existed and if they had no written evidence of them at all, then they would have made efforts to obtain evidence of them prior to the time after the first Tribunal’s hearing especially as the claims had not been believed by the delegate in 2015. Further, if as claimed by the applicant at one stage, she has actually been receiving correspondence about the debts, it would be expected that she would have produced them at an earlier stage of the proceedings.
124. Claim about poverty: The second applicant claims that if he returns he faces a life of poverty in the Philippines because of the extent of the debts. The Tribunal does not accept that those debts exist. The Tribunal has accepted that the second applicant is university educated and has work experience. It does not accept on the evidence before it that the second applicant faces a real chance or a real risk of not being able to support himself or his child under 18 years in the Philippines. It considers that he has not been truthful about his financial situation in Australia or the Philippines.
125. The Tribunal has had regard to the DFAT report on country conditions in the Philippines. As the Tribunal has not accepted the second applicant’s claims, and having accepted some of his background, it is not satisfied that he faces a real chance of serious harm or a real risk of significant harm in the Philippines.
126. The Tribunal has considered the second applicant’s claims individually, and on a cumulative basis. Having regard to the findings that it is not satisfied that the second applicant’s claims are made out, other than those claims accepted above, the Tribunal rejects all the various claims made and it is not satisfied, on the evidence before it, that the second applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion in the reasonably foreseeable future in the Philippines.
127. The Tribunal is not satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
128. Having concluded that the second applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
129. The Tribunal does not accept that the second applicant has experienced any adverse interest as claimed or that he faces a real risk of significant harm or a detrimental situation for the reasons claimed or at all. It considers that he came to Australia with the intention to make money and that he has done so, and that he has not been truthful about his financial situation in Australia or the Philippines. It does not accept that he faces a real risk of economic harm given his education and work experience in both Australia and the Philippines, and his resourcefulness and ability to survive even when he does not have permission to work and is in a foreign country. It does not accept that he faces a real risk of significant harm for any reason. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm from any source.
130. The Tribunal is not satisfied that he faces a real risk of experiencing significant harm for any reason.
131. On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed from Australia to a receiving country, in this case the Philippines, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) of the Act. The Tribunal is not satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
132. The Tribunal does not accept that there is any credible evidence to support that the second applicant faces a real chance of persecution in the Philippines. For the reasons given above, the Tribunal is not satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
133. Having concluded that the second applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa), however, it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed from Australia to a receiving country, in this case the Philippines, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa). The Tribunal is not satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
134. Subsections 36(2)(b) and (c) provide as an alternative criterion that the second applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the second applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouses. The applicant gave evidence that the applicants had separated and are living separately and apart. The Tribunal noted that this indicated that the second applicant was no longer a member of the applicant’s family unit for the purposes of the application. This was put to the second applicant in the s.424A letter however he did not respond. The Tribunal finds that the applicants are separated and are no longer members of each other’s family unit. On this basis, the second applicant, who has been found not to be a refugee or entitled to complementary protection, is also not a member of the same family unit of a person who holds a protection visa of the same class as that applied for by the applicant.
135. There is no suggestion that the second applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the second applicant does not satisfy the criteria in s.36(2).
136. For the reasons given above the Tribunal is not satisfied that the second applicant is a person in respect of whom Australia has protection obligations. Therefore the second applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s.36(2)(b) or (c). As he does not satisfy the criteria for a protection visa, he cannot be granted the visa.
DECISION
137. The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
MemberANNEXURE A - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. 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. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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. 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: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
0
10
3