1820801 (Refugee)

1820801 (Refugee) [2023] AATA 4823 (30 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820801
COUNTRY OF REFERENCE:                   Philippines
MEMBER:James Lambie
DATE:30 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 November 2023 at 5:12pm
CATCHWORDS
REFUGEE – protection visa – Philippines – business owner – business premises unknowingly used in the drug trade by a third party – fear of violence by individuals associated with the drug trade – failure to attend Tribunal hearing – insufficient evidence to make a finding that the applicant would suffer persecution by reason of connection to the drug trade, or by the inability of the police to protect her from any threats connected to those matters – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 426(a), 499
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
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 9 May 2017. The delegate refused to grant the visas on the basis that the applicant is not a person 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).
The applicants lodged an application for review of the delegate’s decision with the Tribunal on 18 July 2023.
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 is whether the applicant meets 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
The [primary review applicant] was granted a class FA subclass 600 (Tourist) visa and arrived in Australia [in]August 2014. [In] November 2014 [the applicant] departed Australia and returned to Australia [in] November 2016 on a class FA subclass 600 (Tourist) visa which was granted [in] September 2016. [In] January 2017 [the applicant] was granted a FA subclass 600 (Tourist) visa and applied for a further class FA subclass 600 (Tourist) visa [in] May 2017 which was withdrawn on 23 June 2017.
[The applicant] lodged a protection visa application on 8 May 2017 and participated in a Departmental interview on 31 May 2018 in relation to the protection visa application.
Claims
[The applicant’s] claims are set out in the protection visa application, including those raised at an interview on 31 May 2018 and evidence provided her is contained in the Departmental file[number]. The claims were summarised by the delegate as follows:
·[The applicant] operated a money transfer and bill payment service.
·In early 2016, a friend approached her in order to rent half the space of her shop so he could open a [business selling goods].
·[The applicant] agreed to this as the rent he paid almost covered the rent for the entire shop.
·She found out through a customer of her friend’s that his business was a front to an illegal drug supply.
·[The applicant] told her friend to vacate the shop immediately which he did.
·Some of her friend’s suppliers/customers became suspicious that they would be reported to the police.
·On 12 October 2016, [the applicant] was almost run over by a fast travelling motorcycle. This was a deliberate act to hurt her as the road was wide.
·The applicant did not approach the police as she was afraid. Also the police are corrupt and have limited capability.
·[The applicant] did not move to another part of the Philippines as she had no time because she was running two businesses.
·Since coming to Australia, her shop has been ransacked twice. She found this out from an employee working at the shop and by her sister and brother who are operating their own business in the same building.
·She will be killed if she returned to the Philippines.
During the Departmental interview on 31 May 2018, [the applicant] claimed that [Mr A], a friend of hers, started to rent space in her shop in August 2016. He paid 6000 pesos per month in cash. The only evidence she said she could provide in this respect is from a friend who witnessed [Mr A] renting the shop space. [The applicant] said she found out that [Mr A] was selling illegal drugs in the shop in October 2017. She stated that one of [Mr A]’s customers thought she was his business partner and that the customer approached her to get his order (of drugs). [The applicant] contacted [the applicant] who admitted to the sale of illegal drugs. She stated that [the applicant] sold marijuana, ice and crystal meth. She said that [the applicant] was a government official and some of his customers were other government officials.
[The applicant] claimed that [Mr A] was caught selling drugs in an undercover operation by the police in April 2018. She found this out through her brother and a friend, who is a police officer. When the applicant was in the Philippines, she had told her police officer friend about [Mr A] ’s drug trade and was advised to report the matter to the police. She did not report the matter to the police out of fear of the drugs cartel and that police officers and public officials protect drug traders so she could not trust the police.
[The applicant] stated that she received threats through texts and messages being passed through her brother and her brother told her to hide. She stated that she only came to Australia for a holiday but had extended her visa due to the threats she was receiving. She stated that she does not know whether she still has text messages as that phone service has been deactivated.
[The applicant] was asked when she was nearly struck by a motorcycle and said it may have been August or October 2016 after she was leaving her shop and was entering into her car. She stated that the motorcycle driver drove very close to her and turned around to approach her again but a passer-by intervened. She stated that this incident was related to [Mr A] as she had already received a threat (through her brother). She stated she did not report this to the police as she did not know whether the officer she spoke to was involved in the drug trade.
[The applicant] was asked why she fears harm as [Mr A] is now in prison. She claimed that in April 2018, one of his customers was shot dead. When her brother went to this person’s wake, someone had asked her brother of her whereabouts.
[The applicant] stated that at the time she applied for a tourist visa, the threats to her had not yet been made. She had planned to come to Australia to celebrate Christmas but had to arrive earlier due to the threats she subsequently received. [The applicant] was asked why she did not apply for a protection visa earlier. She claimed that she had applied for a further tourist visa to remain onshore and did not want to stay permanently in Australia as she though the situation would calm down and she had two businesses in the Philippines.
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 birth certificate of the secondary visa applicant.
d.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 letter from the Commonwealth Bank confirming the primary review applicant’s details.
c.A copy of a Bridging Visa A grant letter from the Department addressed to the [primary review applicant’s child].
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 the Philippines 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 applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing
On 8 November 2023, the Tribunal wrote to [the applicant] advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited her to give oral evidence and present arguments in support of his case at an in-person hearing to be held on 30 November 2023. The hearing invitation advised that if she 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 applicant] by email at the email address provided in the application for review. That correspondence had not been returned from her.
On 23 November 2023 and 29 November 2023, the Tribunal sent hearing reminders to [the applicant] by SMS to the telephone number provided in the application for review. There was no notification that delivery of the messages had failed and the Tribunal received no response.
[The applicant] did not appear before the Tribunal on the day and at the time and place she was scheduled to appear. She failed to provide any reasonable explanation as to why she 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 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 applicant]’s claims as detailed in her application for a protection visa, both individually and cumulatively. [The applicant] did not take the opportunity to attend the hearing, and she did not provide additional information in support of her claims, even after having been advised of the delegate’s decision. The 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 applicant in her application, or how they are said to invoke Australia’s protection obligations. Her 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 applicant attended the hearing, I would have asked for further detail about her claims, affording her an opportunity to provide further information and to explain how her claims might relate to the refugee criteria.
On the material presented, the Tribunal has insufficient evidence as to:
·the rental terms for her shop and the arrangements she made for a sublease to [Mr A];
·why it took her more than a year to realise that [Mr A] was selling drugs from these premises;
·the nature of the threats she received and her means of knowledge that they were connected with [Mr A]’s business;
·why she has been unable to provide documentary evidence of the SMS threats she claimed to have received;
·how the incident with the motorcycle is said to be related to her eviction of [Mr A], given that it seems to predate her claimed discovery of the nature of [Mr A]’s business; and
·whether the threats to her safety 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.
It would seem that the applicant entered Australia [in] November 2016 on a class FA subclass 600 (Tourist) visa which was granted on [in] September 2016. She was subsequently granted a further tourist visa which expired [in] May 2017, only lodging the protection visa application on 9 nay 2017. Had the applicant attended the hearing, the Tribunal would have sought her explanation for the delay and sought her 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:
Women
The Philippines Constitution ‘recognizes the role of women in nation building and shall ensure the fundamental equality before the law of women and men’. Gender-based discrimination is illegal under Republic Act 9710 (the Magna Carta of Women). Rape, including spousal rape, is illegal, with penalties ranging from 12 to 40 years’ imprisonment.
Women in the Philippines have equal access to education, including higher education, and women graduates outnumber men at both the undergraduate and postgraduate level. While women do not face legal barriers to equal participation in the economy, politics and society, social attitudes and power imbalances undermine gender equality in practice. According to UNFPA, Filipina women and girls suffer disproportionately from gender stereotyping, stigmatisation and sexual shaming.
Violence against women is widespread in the Philippines. It is likely that many cases of rape go unreported. Police stations have ‘women’s desks’ for women to report violence and a specialist police command dealing with women’s issues exists within the police force. The effectiveness of these services varies. Some women who turn to Barangay Captains for assistance with domestic violence may be provided effective protection in this way in the form of ‘Barangay Protection Orders’, which are analogous to Apprehended Violence Orders. However, other women report that Barangay Captains refuse to intervene or insist on trying to reconcile the victim and her abuser, exposing her to further violence. While data is scant, gender-based violence is thought to have worsened significantly during COVID-19, with UNFPA estimating an additional 12,000 cases per month during lockdowns.
Some women who are victims of violence may be supported by their extended family. Whether or not this is effective depends on the family. Women’s rights workers in the Philippines told DFAT that some women who seek protection from their extended family may be stigmatised and abused for leaving their husbands. Single women with children are particularly stigmatised.
The Department of Social Welfare and Development, local specialist NGOs and some churches provide shelter and counselling services, which are more accessible in large cities. Local NGOs told DFAT these services were too few in number to meet demand. These services generally target the poor, but women from wealthier backgrounds may be accepted. Victims of domestic violence may be stigmatised; there is a taboo about family violence. Some women are reluctant to leave abusive partners for religious or moral reasons.
The Philippines is one of only two countries in the world where divorce is illegal. It is possible to seek an annulment, but the legal process is expensive and lengthy. It is legal and fairly common for couples to separate and re-couple without divorcing. Bills to legalise divorce have been introduced to the House of Representatives, although they face opposition from the Catholic church and others. Muslims in the BARMM can divorce under the Code of Muslim Personal Laws (Sharia).
Local NGOs, charities or churches may provide financial or practical support to single woman-headed households; however, this will vary from place to place and according to individual circumstances. Some local governments provide subsidies to single-headed households which might include discounts on transport or food; however, these services also vary from place-to-place and provider-to-provider. See Economic Overview for information about health, employment, education and welfare services available to all Filipinos.
Rates of infant mortality are high. Traditional midwives are often present at births. Traditional midwives work within their local, often poor communities. These midwives may cover many areas of women’s reproductive health including contraception, abortion, childbirth and post-birth care. Many Filipina women believe there is an ‘ancestral bond’ with traditional midwives. Many women prefer traditional birth practices as they find doctors and hospitals to be impersonal.
Female genital mutilation/cutting has been documented in some parts of Mindanao. Generally involving cutting or pricking of the clitoris, it is mostly performed by traditional midwives, often in unhygienic conditions. DFAT is unaware of how widespread the practice is.
Abortion is illegal, but underground abortions can be obtained. Women may engage traditional providers who provide ‘massages’; however, these can be violent in nature, may not terminate the pregnancy, and can lead to serious injury of the woman or deformity of the foetus. Traditional abortifacient herbs may also be used, some of which are more effective than others. Illegal surgical abortions are less common. A black market exists for abortion drugs such as RU-486. These drugs are illegal, and women are unable to access them for therapeutic purposes such as managing excessive menstruation.
Women and girls have been disproportionately disadvantaged by the impacts of COVID-19. Many Filipina women are employed in service industries like retail, hospitality and tourism, which have contracted. Women were already overrepresented in the informal economy and lack labour and harassment protections. Women also dominate the health and human services sectors, placing them at higher risk of catching COVID-19.
President Duterte has made widely reported misogynistic, derogatory and demeaning public statements about women, including condoning rape and encouraging sexual mutilation of female insurgents by soldiers. Such statements may contribute to an environment of impunity for security forces. Leaders of women’s rights groups have been singled out for judicial harassment and red-tagging, and women journalists and activists are often targeted by online trolls (see Media and Journalists).
Overall, DFAT assesses that women face a low risk of official discrimination. Women activists and journalists face a high risk of online harassment (see Media and Journalists and NGOs). Women who are victims of domestic violence may be unable to access services. Single women who have no other means of support, particularly widows, are at a high risk of violence and societal discrimination (see also Extrajudicial Killings and the ‘War on Drugs’).
Extrajudicial Killings and the ‘War on Drugs’
Extrajudicial killings occur against accused drug dealers and users, activists, judicial officials, local government leaders and journalists. Killings are often blamed on unidentified ‘vigilantes’, but may also involve uniformed police or soldiers. It is highly likely police – both current and former – are involved in extrajudicial killings.
President Duterte was elected on a promise to eliminate the illegal drug trade. He has regularly called for people involved in illegal drugs to be killed and promised impunity for police and soldiers who kill. Under ‘Oplan Tokhang’ (Operation Knock and Plead), drug users and dealers are encouraged to ‘surrender’ to authorities or risked being killed. The government claimed in 2019 that 1.4 million drug users had surrendered to police since 2016. Police have a network of informants and have conducted campaigns in which they visit suspects’ houses and ‘encourage’ them to cease drug activities.
Official figures from the Philippines Drug Enforcement Agency state 6,117 people were killed in anti-drug operations between 1 July 2016 and 30 April 2021. Unofficial estimates put the death toll much higher. Tens of killings can occur in a single night. Many cases involve corpses holding handwritten notes that identify themselves as drug users, or telling others not to use drugs, which police attribute to vigilantes. Some victims show signs of being tortured.
Police rarely investigate claims of extrajudicial killings. Despite the thousands of deaths, DFAT understands only one case – the murder of 17-year-old Kian delos Santos in 2017 – has resulted in the conviction of police officers. In December 2020, the International Criminal Court (ICC) concluded there was a reasonable basis to believe crimes against humanity, including murder, torture and other crimes, had been committed in the Philippines in connection with the war on drugs. The ICC’s chief prosecutor has since sought judicial approval to begin an investigation into the alleged crimes. Human Rights Watch claims the number of killings increased by 50 per cent during 2020’s COVID-19 lockdowns, although this is disputed.
Some drug dealers who have surrendered have been detained. Users who have surrendered have largely been released but are expected to undergo a rehabilitation process. Some large rehabilitation centres have been built and the effectiveness of these centres is variable.
Suspected drug users may be forced to take drug tests. These tests used to be conducted by police, but are now administered by Drug Enforcement Agency agents. Tests have previously been conducted in schools, but this practice has reportedly ceased. Sources suggest there may be quotas for these tests and relatives and neighbours may provide samples to cover the drug use of their relatives.
Drug ‘watch lists’ containing the names of suspected drug users and pushers have been created by barangay officials and the police. They may not always be in the form of a written list, and they are generally not vetted or investigated. The drug lists are not confidential, and many communities know who in their neighbourhood is on the list. Sources claim some people use bribes or connections to have people with whom they have a personal dispute listed. Lists are allegedly associated with quotas of people to test, arrest or kill for drug use. Amnesty International told DFAT that, once listed, it is ‘nearly impossible’ to be taken off a list. According to the US Department of State, individuals named on these lists have subsequently been killed.
People accused of drug crimes may have difficulty accessing legal representation. Many lawyers are reluctant to take on such cases. Poor people, subject to strict means-testing, may have access to a government funded lawyer, but these services have capacity and funding constraints (see Access to Justice).
The families of victims of extrajudicial killings are often affected by stigma. Children whose parents have been killed are particularly affected. Local NGOs report that some women and children whose husbands or fathers have been killed may be forced into sex work or crime, having lost their source of family income. They may also have trouble accessing support services due to their perceived association with illicit drugs. Some civil society organisations assist families of drug war victims.
DFAT assesses that accused drug users and dealers face a high risk of violence, including death, from both the Philippine National Police and vigilantes. The existence of drug ‘watch lists’ and the ease of obtaining these lists would make it difficult to avoid being targeted.
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) …
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 …
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.
Treatment of Returnees
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 there may be reason for concern about the effectiveness of state protection and law enforcement in relation to the drug trade. However, [the applicant]’s claims do not, in my view engage these concerns because there is no evidence that she has sought the protection of the police or the courts, or that, if any of her claims in respect of fearing harm from those associated with the drug trade are accepted, that any such threats still exist.
Cumulative claims
Having considered all of [the applicant]’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered her personal circumstances, the Tribunal finds that there is no real chance that she will suffer persecution by reason by reason of connection to the drug trade, or by the inability of the police to protect her from any threats connected to those matters, or for any other reason if she returns to the Philippines now or in the reasonably foreseeable future. Therefore, the Tribunal finds that [the 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 she returns to the Philippines. Accordingly, the Tribunal finds that she 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 she will suffer significant harm?
The Tribunal has considered [the applicant]’s claims under complementary protection.
The Tribunal is not satisfied on the available evidence that that [the applicant]’s claims to fear violence at the hands of people associated with the drug trade are genuinely held. Even had the Tribunal been satisfied that her claims were genuine, it is not satisfied that means of state protection or redress would not be available to her.
Having considered all of [the 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 applicant]will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she 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 applicant] will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Her fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the [the 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 her being removed from Australia to the Philippines that there is a real risk that she will suffer significant harm.
Overall Conclusion
There is no suggestion that [the 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, she 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 4823

30 November 2023

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