1820800 (Refugee)

1820800 (Refugee) [2023] AATA 4790 (29 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820800
COUNTRY OF REFERENCE:                   Philippines
MEMBER:James Lambie
DATE:29 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 29 November 2023 at 3:09pm
CATCHWORDS
REFUGEE – protection visa – Philippines – non-appearance before the Tribunal – fear of former wife’s family – fear of people aggrieved by a failed drug deal – insufficient evidence – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
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 Home Affairs on 5 July 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of the Philippines, applied for the visas on 2 June 2017. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case whether the applicants meet the refugee criterion and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
On 27 September 2016 the [primary review applicant] was granted a class FA subclass 600 (Visitor) visa and arrived in Australia [in] November 2016. On 26 January 2017 the primary review applicant was granted a Bridging Visa A and granted a further class FA subclass 600 (Visitor) visa on 31 January 2017 which was valid until 15 May 2017. The primary review applicant was granted a further Bridging Visa A on 15 May 2017 and was granted a further FA subclass 600 (Visitor) visa on 24 May 2017. On 7 March 2018, the primary review applicant lodged a further application for a class FA subclass 600 (Visitor) visa which was refused on 9 March 2018.
On 2 June 2017 the applicants lodged the protection visa application.
Claims
[The primary review applicant]’s claims are set out in the protection visa application, including those raised at an interview on 31 May 2018 and evidence provided by the primary review applicant’s claims contained in the Departmental file [number.] The claims were summarised by the delegate as follows:
·[The primary review applicant] received threats from his wife’s family which he reported to the police on 11 November 2016. At this time, the primary review applicant and his girlfriend, [Ms A], held a Visitor visa to come to Australia
·On 14 November 2016, [the primary review applicant] was informed by his sister that a man carrying a gun was asking about his whereabouts in his neighbourhood. Prior to this, the applicant’s legal wife’s family had been coming to his neighbourhood, seemingly spying.
·Part of [Ms A]’s shop was rented by her friend, who, unknown to her, was selling illicit drugs from the premises.
·[Ms A] was almost run over by a motorcycle in October 2016.
·An unknown man made enquiries about the applicant’s whereabouts and made threats against him. The applicant thinks that this is related to [Ms A]’s problem with illicit drugs being sold form her shop.
·The threat from this person was not reported to the police.
During the protection visa interview with the Department on 31 May 2018, the applicant stated that he is separated from his legal wife and that an annulment process was underway. He claimed that his marriage broke up because he was assaulted by his wife on many occasions. He stated that he did not physically harm his wife and left her, taking their daughter with him. He stated that his in-laws did not want the parties to separate and were very angry with him and his family.
Around the same time, the applicant was developing a relationship with [Ms A]. His in-laws and family drew the conclusion that he left his wife for [Ms A], but the applicant maintains this is not true. The applicant stated that his wife has access to their child but can only see them at his parent’s home.
The applicant’s in-laws’ family went to his brother’s workplace and told him to tell the applicant to be careful as they will kill him in 2016. The applicant reported this to the police in November 2016 who told him to be careful but were aware of the aggressive party.
The applicant stated that the threats did not stop and he decided to accompany [Ms A] to the christening of her niece in Australia. When he was in Australia, the threats from his in-laws’ family did not cease and so he applied for a further Tourist visas whilst onshore.
The applicant was asked about the man with a gun who his sister saw near the house. He stated that his sister told him that he was not at home and before she could ask why he wanted to speak to him, he turned around and walked away. The applicant was in Manila at this time as he was flying out to Australia. The applicant was asked how he knows this man is linked with either his legal wife’s situation or [Ms A]’s situation. He stated he is unsure, but knows that in the Philippines, people are hired in order to harm others.
The applicant stated that he received threats through email, which he subsequently deleted and stated he thought that he could not submit this as evidence. The applicant provided the Department with a Facebook screenshot of a message from [Mr B]. The applicant stated this message was sent in 2016 and was regarding a threat to [Ms A] and family by [Mr B] for money returned from drugs he purchased but had not collected. The applicant stated that he last received a threatening message in 2017 and his brother told him that people are asking his whereabouts in the Philippines.
The interviewer asked the applicant why he delayed applying for a protection visa until 2 June 2017, six months after arriving in Australia. The applicant stated he was looking for options to stay in Australia and found out about protection visas through the Departmental website. He did not consult a migration agent as he heard this was an expensive option. The applicant stated he did not think about being protected as he had hoped the threats would stop.
Evidence presented prior to the hearing
The applicants produced to the Department of Home Affairs (the Department) the following documents:
a.The applicants’ protection visa applications forms.
b.A passport of the applicant.
c.A police report from the Republic of the Philippines National Police Commission dated [in] November 2016.
d.A Facebook screenshot.
e.A birth certificate of the secondary visa applicant.
f.A copy of the Departmental interview with the primary review applicant dated 31 May 2018.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.A photograph of the back of the primary review applicant’s driver licence.
Country of reference
The applicants claim to be citizens of the Philippines. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Taiwan is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing
The applicants lodged an application for review of the delegate’s decision with the Tribunal on 18 July 2018.
On 6 November 2023, the Tribunal wrote to the applicants advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited [the primary review applicant] to give oral evidence and present arguments in support of his case at an in-person hearing to be held at 9.30am on 21 November 2023. The hearing invitation advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or without taking further action to enable him to appear before the Tribunal. The letter was sent to the applicants by email at the email address provided in the application for review. That correspondence had not been returned from the applicants.
On 21 November 2023 at 9.05am [the primary review applicant] notified the Tribunal by email that he was ill and would be unable to attend the hearing. He subsequently forwarded a medical certificate dated 22 November 2023 that he was unfit for work from 17 to 22 November 2023 inclusive. By letter dated 23 November 1012, the Tribunal advised [the primary review applicant] that the matter had been relisted for 29 November 2023. That correspondence was not returned from the applicant.
On 28 November 2023, the Tribunal sent a hearing reminder to [the primary review applicant] by SMS to the telephone number provided in the application for review.
[The primary review applicant] did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. He failed to provide any reasonable explanation as to why he could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable [the primary review applicant] to appear before the Tribunal.
Accordingly, this matter has been determined on the evidence available to the Tribunal.
Assessment of claims and evidence, and findings:
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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. 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, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
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 carefully considered [the primary review applicant]’s claims as detailed in his application for a protection visa, both individually and cumulatively. [The primary review applicant] did not take the opportunity to attend the hearing, and he did not provide additional information in support of his claims, even after having been advised of the delegate’s decision. [The primary review applicant] did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
Without the benefit of the hearing, I am unable to be satisfied of the claims raised by [the primary review applicant] in his application, or how they are said to invoke Australia’s protection obligations. His claims did not raise a fear of serious harm as defined in s.5J(4)(b) and s.5J(5) of the Act, or that a fear of harm was for one of the reasons in s.5J(1)(a) of the Act. Had [the primary review applicant] attended the hearing, I would have asked for further detail about his claims, affording him an opportunity to provide further information and to explain how his claims might relate to the refugee criteria.
On the material presented, the Tribunal has insufficient evidence as to:
·the precise nature of the threats made to [the primary review applicant] by his in-laws, including the person or persons who made those threats;
·whether the police report he submitted was a genuine document, because it does not include the name of any person suspected or accused of an offence;
·his reasons for the claimed lack of evidence as to the receipt of threats,
·the reason why [the primary review applicant] would be the subject of any threats concerning the claims that [Ms A] claimed to have received from drug dealers; and
·any reason to believe that any of the claimed threats are continuing;
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
As noted above, [the primary review applicant] first entered Australia as the holder of a visitor visa [in] September 2016 and was granted a number of additional visitor and bridging visa thereafter, only lodging the protection visa application on 2 June 2017. Had [the primary review applicant] attended the hearing, the Tribunal would have queried his explanation for the delay and sought his submissions as to why the Tribunal should not take it as an indication that her claimed fear or harm is not genuine.
Country Information
The most recent country information available to the Tribunal relevant to the applicants is as follows:
Children
The Philippines does not have a comprehensive code or act that protects the rights of children, but it does have a number of relevant thematic codes and laws, including the Family Code, Labour Code, Child and Youth Welfare Code, Anti-Violence Against Women and their Children Act (Republic Act 9262), Child Protection Act (Republic Act 7610), and the Juvenile Justice and Welfare Act (Republic Act 9344).
In February 2019, the Philippines government passed the ‘Special Protection of Children in Situations of Armed Conflict Act’ (Republic Act 11188), prohibiting the recruitment of child soldiers. The passage of the law followed a UN report in 2018 showing a significant increase in the number of grave violations against children in situations of armed conflict, mostly during the Marawi siege. In March 2017, the Moro Islamic Liberation Front released hundreds of child soldiers and promised to end the practice.
The Philippines government and the UN have accused the CPP-NPA of using child soldiers. For instance, in February 2020 the Armed Forces of the Philippines claimed to have rescued a 14-year-old member of the CPP-NPA, allegedly recruited in Western Mindanao at the age of 13. These claims are contested, and Human Rights Watch has criticised the Philippines military for ‘concocting stories of rebel child soldiers that are putting children at risk for propaganda purposes’ while calling on the CPP-NPA to investigate accused units. To DFAT’s knowledge, there is no evidence of underage recruitment by the Armed Forces of the Philippines.
The Philippines is a leading destination for child sex tourism and source of online sexual abuse and exploitation of children. Child pornography is illegal, but the minimum age of sexual consent is 12 years old, which is among the lowest in the world. Global COVID-19 travel bans led to a decline in sex tourism in 2020, but worsening economic conditions have caused an increase in online sexual exploitation and abuse of children, especially among the very poor. Social attitudes contribute to the prevalence of online sexual abuse and exploitation of children, including that: if children are physically untouched, they are not harmed; children are expected to help the family financially; and outsiders should not interfere in the internal affairs of a family.
Under Muslim personal law, Muslim boys may marry at 15 and girls may marry when they reach puberty. Child marriage has been reported, particularly in the south of the country among Muslim communities, but has also been reported in Metro Manila. The legal minimum age for marriage for both men and women is 18 years and anyone below 21 years must have permission from their parents to marry. Unmarried young people who become pregnant may be forced to marry by conservative families and communities.
Children can legally work a limited number of hours from age 15. Underage labour is widely reported. A 2015 Human Rights Watch report documented child labour in hazardous artisanal and small-scale gold mining operations, and the practice likely continues in some communities. Indigenous children are particularly vulnerable to such exploitation.
DFAT is not aware of societal or official discrimination against children. DFAT assesses that children who live in poverty or in conflict-afflicted areas face a moderate risk of violence, exploitation or sexual abuse.
Police
The Philippine National Police (PNP) is structured as a national police force with specialist commands that cover geographic areas and specific kinds of crime, including child sex abuse, crimes involving women, and counter-terrorism operations. Recruits receive one year of initial training, followed by three to six months of additional training in a specific area. While police are generally competent, they lack resources and capacity, and have poor coordination with other agencies.
There are credible reports of police involvement in extrajudicial killings of suspected drug users. Amnesty International reports examples of local police conducting their own rogue operations. This may involve plainclothes or retired police officers. Police openly admit the presence of rogue officers. There is a strong fear of the police in some communities, particularly those affected by the war on drugs. There are credible reports of police planting evidence, including weapons and drugs, to justify arrests or killings.
The PNP has systemic problems with corruption and impunity, including petty corruption. Local sources report the extent to which police are corrupt varies throughout the force and depends on the individual officer. Sources note senior police may be more likely to be involved in serious corruption, due to the patronage-driven nature of Philippines politics.
The PNP Internal Affairs Service (IAS) was established in 1999 as an independent body mandated to conduct inspections, investigate complaints and refer criminal cases against PNP members to the courts. The IAS commenced an investigation into 20 police officers implicated in the November 2016 killing of Rolando Espinosa, a mayor who was detained in Leyte on illegal drugs and weapons charges, but shot dead for allegedly having a firearm in his cell. The National Bureau of Investigation concluded Espinosa’s death was a ‘rubout’, but after being promised impunity by President Duterte the officers were returned to duty in July 2017.
Access to Justice
In theory, poor defendants should be able to access a free lawyer. Several NGOs that provide legal assistance according to strict criteria are found throughout the country. The Integrated Bar of the Philippines, a professional association with powers similar to the law societies of Australian states and territories, also has a court assistance program. Government appointed public defenders are available, but reportedly have capacity and funding constraints.
Legal sources told DFAT some lawyers are reluctant to take on drugs cases for fear that allegations of being pro-drugs will be levelled against them. Some legal aid NGOs refuse to assist clients with drugs matters. In August 2018, three lawyers observing a drugs raid in Manila were arrested by police, allegedly for obstruction of justice related to their representation of clients involved in drug cases.
Birth, Marriage, Divorce and Death Certificates
The Philippines Statistics Authority issues birth, death, and marriage certificates.
When a child is born, the parents can apply in person or online for a birth certificate. The government promotes birth registration, and authorities immediately register births in health facilities. Births outside facilities are less likely to be registered promptly, if at all. Birth certificate data, particularly in the case of home births, may not be reliable. Births are classed as legitimate (if the child is conceived or born within a marriage) or illegitimate (if the child is conceived or born outside a valid marriage) which is important to determining custody rights. A child of a marriage that is subsequently annulled is classed as legitimate. Mothers are always granted parental authority of illegitimate children.
Death certificates can be granted by a medical practitioner or on application by a close relative of the deceased.
All marriages since 1988 are governed by the Family Code of the Philippines/Executive Order 209. All marriages prior to 1988 are governed by the Civil Code. Muslim marriages are governed by the Code of Muslim Personal Laws/Presidential Decree No 1083.
The Family Code provides two options to legally terminate a marriage: 1) annulment or 2) a declaration of nullity of marriage. Courts sometimes issue a legal separation but the parties are still considered validly married and are not free to re-marry, although they can re-partner and live with their new partner. Terminating a marriage is a lengthy and expensive process. It is possible to seek ways to expedite the process by paying someone who can allegedly facilitate it without the concerned parties having to appear in court, but often these documents prove to be counterfeit when verified with the alleged issuing court. If a Filipino is married to a foreigner, then a divorce may be judicially recognised only if the divorce was initiated and obtained by the non-Filipino spouse, or after the former Filipino citizen has acquired citizenship of a country where the divorce is recognised.
Treatment of Returnees
Exit and Entry Procedures
The Philippines has several international crossing points for air and sea passengers. Border management in the Sulu Sea in the south is weak; the waters are largely unpatrolled and affected by piracy. There are also informal trading routes with Malaysia. Various armed groups in Mindanao run their shadow economies through these waters.
DFAT assesses it would be difficult, but not impossible, for a person of interest to the authorities to leave the country without being noticed. The National Bureau of Investigation liaises with the Department of Immigration to identify persons of interest and flag them should they attempt to pass through border screening; however, local systems are often inefficient, and inter-agency communication is poor.
Conditions for Returnees
Under normal circumstances, thousands of Filipinos enter and leave the country every day, especially for work abroad. People who return to the Philippines after several years’ absence are unlikely to face adverse attention on their return on account of their absence, with the exception of those involved in international crime or terrorism. Filipinos who overstayed their work or tourist visas, or breached visa conditions in other countries are returned to the Philippines with no attention paid to them by authorities. DFAT is unaware of any mistreatment or surveillance of failed asylum seekers; it is highly unlikely the Filipino government would be aware a returning person was a failed asylum seeker.
The International Organization for Migration (IOM) assists voluntary returnees, mainly trafficking victims, and Philippines authorities cooperate with the IOM in these arrangements.

The country information therefore suggests that, while there be reason for concern about the effectiveness of state of protection in the Philippines. However, [the primary review applicant]’s claims do not, in my view, engage these concerns because there is no evidence that he sought the protection of the police or the courts, or that he had any reason to believe such protection would not be afforded him.
Cumulative claims
Having considered all of [the primary review applicant]’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered his personal circumstances, the Tribunal finds that there is no real chance that he will suffer persecution by reason of his wife’s family antipathy to him, or because of any imputation linking [Ms A] to a failed drug deal, or by the inability of the police to protect him from any threats connected to those matters, or for any other reason if he returns to the Philippines now or in the reasonably foreseeable future. Therefore, the Tribunal finds that [the primary review applicant] does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to the Philippines. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that he will suffer significant harm?
The Tribunal has considered [the primary review applicant]’s claims under complementary protection.
The Tribunal is not satisfied on the available evidence that that [the primary review applicant]’s claims to fear violence at the hands of his wife’s family or people aggrieved by a failed drug deal are genuinely held. Even had the Tribunal been satisfied that his claims were genuine, it is not satisfied that means of state protection or redress would not be available to him .
Having considered all of [the primary review applicant]’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered his personal circumstances, the Tribunal is not satisfied that [the primary review applicant] will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to the Philippines now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future [the primary review applicant] will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). his fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the [the primary review applicant]’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to the Philippines that there is a real risk that he will suffer significant harm.
Overall Conclusion
There is no suggestion that [the primary review 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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
James Lambie
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4790

29 November 2023

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