1918677 (Refugee)

1918677 (Refugee) [2019] AATA 6175 (27 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1918677
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Luke Hardy
DATE:27 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 August 2019 at 2:50pm
CATCHWORDS
REFUGEE – protection visa – Philippines – particular social group – foreigner – returned expatriate – returnee from a rich country – target of exploitation, bullying and extortion – drug user – drug trafficker – extrajudicial killings under current regime’s war on drugs – medical evidence regarding drug addiction – modification of behaviour to avoid illicit drugs – complementary protection claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 July 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a [age] year-old citizen of Philippines who arrived in Australia at the age of [age] apparently on his mother’s [temporary] visa. During his late teens he fell in with some anti-social peers, became involved in gambling and some recreational consumption of some prohibited drugs. He was charged with an offence in 2015 and, although he was not yet convicted, his [temporary] visa was cancelled. He was convicted for the offence in 2017 and sentenced to around seven years incarceration, of which some years he had already served in remand since 2015. He was released on parole in 2019, apparently taking into account the time spent in remand, but moved directly into immigration detention. He lodged a protection visa application on 25 June 2019.
The Minister’s delegate refused to grant the visa on 10 July 2019. [The applicant] then sought review of the delegate’s decision.
[The applicant] appeared before the Tribunal on 16 August 2019 to give oral evidence and present arguments. He also presented one witness, Ms [A]. His mother attended in a social support capacity. He was also accompanied at the hearing by his advisor, a registered migration agent. He did not require an interpreter.
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 (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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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 issues
The main issue in this case is whether, on accepted claims, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
[The applicant] claimed generally to the Department of Home Affairs that there are high rates of criminal activity like kidnapping and extortion in the Philippines. He also made the general claim that there is endemic alcohol consumption and drug abuse leading to criminal activities there.
Speaking for himself, [the applicant] claimed that he has lived so long in Australia, since he was a minor, that he would have difficulties re-adapting to Filipino culture, to the law and order environment and to other aspects of life in the Philippines. He claimed that it would be hard for him to find a job, having few skills and scant work experience and that he would be doomed to poverty as a consequence.
[The applicant] referred to the nationwide, violent crackdown on drug culture in the Philippines, currently led by the police under President Duterte. He claimed fear of somehow being murdered or executed extrajudicially in the midst of the crackdown, on the pretext of links to drugs. He claimed that it would be hard to avoid succumbing to negative peer influence, leading to involvement in crime.
[The applicant] claimed that it would be extremely difficult for him to reintegrate in the Philippines because he has no close relatives to support him and no other acquaintances in the country. He claimed to the Department that he could read and speak Tagalog, although he told me at the Tribunal hearing that he is not fluent. He claimed that being alone would make him a person of interests to gangs and bullies who might intimidate him for intimidation’s sake or to coerce him into committing crimes.
At the Tribunal hearing, I asked [the applicant] what might happen to him in the event of returning or being removed to the Philippines. In response, he said he was not sure. He said he would not know what to do there. He said he would not be able to find a job. He said, however, that he would probably try to get in touch with anyone who might be able to help. He said he did not finish year [level] in Australia. He said he had worked here only for a few months at a time, once as a [Occupation 1] in a [Workplace 1] and for a few months as a [Occupation 2] on a [Workplace 2]. He said he had a motorcycle licence but no car licence.
I asked [the applicant] about whether he had any extended family back in the Philippines. He told me he used to live in Baguio in North Luzon before coming to Australia. He said this was his father’s home region. He said his father’s [siblings] still live there with their families including [number] of his, [the applicant]’s, cousins. He said his mother’s family is from Ilocos, farther north, and that she has [siblings] living there, [one of them] having two daughters, to the best of his recollection. He indicated that he would get in touch with relatives like these in order to obtain help finding somewhere to stay, at least in the short to medium term, and some work to do in order to subsist.
As noted, [the applicant] has speculated that he might fall in with anti-social gangs, become exposed to drugs in the Philippines, become addicted to them and face persecution or significant harm from the police who, according to independent evidence, have been given broad licence to shoot suspected drug traffickers on sight. He told me that he was under the influence of alcohol (tequila and other spirits) at the time of his offending in 2015 in the matter of being in the company of a person or persons committing sexual assault. He does not claim and was not found to be under the influence of any prohibited drugs at the time, but he does report having occasionally taken drugs like cannabis and “bupe” (buprenorphine, an opioid methadone substitute used to treat heroin addiction) with peers before, and even since, his incarceration in 2015. I have read his “Pre-sentence Report” in which “alcohol/drug problems” are included amongst factors like “family/marital”, “companions” and “attitude/orientation” as “criminogenic needs” at the time of his offending. The report cites him saying that he used to indulge in cocaine and “ecstasy” consumption on Friday and Saturday nights. His advisor mentioned having seen reference to the use of more addictive and destructive substances like “MDMH” and “ice”, but I have not located any sources for those references. In any event, there is no evidence before me, let alone from any medical expert, to suggest that [the applicant] is or was ever a drug addict, or to suggest that he is or has ever been treated for addiction to any prohibited substances. In his evidence to me, drugs were things he did not say no to when offered by friends, and were more about recreational consumption, although he did suggest that he used to spend a lot of his time at leisure with his peers and that whilst he was in custody taking the occasional drug when it was offered helped him feel less affected by gloom, inactivity and social marginalisation.
[The applicant]’s advisor said that although [the applicant] was unlikely to come to the attention of the authorities in the Philippines as a former drug offender, at least to the extent that his sexual assault conviction does not formally refer to any drug-related offence, he had nevertheless found himself unable to avoid indulgence in drugs in Australia notwithstanding his loving and supportive family network here. The advisor posited that there was a strong likelihood that [the applicant] would be unable to resist resorting to prohibited drugs in the Philippines and the crimes one needs to commit to procure them, given that in that country he would not even have the kind of loving, socialising environment that he has had here, and that was still insufficient to prevent him resorting to consumption of illicit drugs. Essentially, he was saying there is a stronger chance or risk of [the applicant] taking and becoming addicted to drugs in the Philippines than existed here, meaning that there is concomitantly a real chance of his being persecuted, and a real risk of his being arbitrarily killed, or tortured or subjected to cruel, degrading or inhuman treatment or punishment in that country. The adviser argued that the Minister’s delegate, assessing [the applicant]’s original protection visa application, erred in going no further than to rely on the fact that there were no illicit drug offences in [the applicant]’s criminal record. Summing up, the advisor suggested that dependence on drugs is so intrinsic to [the applicant]’s character and personality, for reasons beyond his and his family’s control, that it would be virtually impossible for him to avoid lapsing into drugs in the event of return or removal to the Philippines because he would be lonely, deprived of love and support, and likely to lapse into drug abuse that would much more likely attract the most serious or significant harm from the authorities than rehabilitation. He said that [the applicant] has a proclivity for self-destructiveness that makes him an “ideal candidate to drift into the milieu [capable of] attracting the murderous regime in the Philippines.”
Striking some contrast with these arguments, [the applicant] and his witness both said that he has matured and that if allowed to remain in Australia he would not consume illicit drug and would avoid contacting anti-social people capable of exerting negative and potentially criminal influences on him. His witness spoke on the basis of having known [the applicant] at the height of his miscreance prior to conviction and on the strength of having observed him in weekly visits she has made to [the immigration detention centre] since his transfer there from prison. They both told me of his intention to go back to school. Overall, [the applicant] emphasised that he has learned from his past mistakes with drugs, alcohol and hanging out with the wrong kinds of people.
Independent country information
[The applicant]’s adviser submitted a number of reports relating to the anti-drug crackdown in the Philippines, including an extract from Human Rights Watch’s World Report 2018.
It is widely-known that, since the election and early proclamations of President Rodrigo Duterte, alleged drug traffickers users in the Philippines have been the targets of summary killing by police and by vigilante groups assembled at the level of the country’s traditional local jurisdictions known as barangays, acting on the basis of local knowledge, sometimes no more robust than rumour, as well as on police records.
The following text, which accompanied a recent Pulitzer Prize-winning New York Times photo essay,[1] provides on the ground evidence of extrajudicial killings of people who were merely addicted to illegal drugs in Quezon and Manila:
[1] “They Are Slaughtering Us Like Animals”, photographs and text by Daniel Berehulak, New York Times, 7 December 2016,
You hear a murder scene before you see it: The desperate cries of a new widow. The piercing sirens of approaching police cars. The thud, thud, thud of the rain drumming on the pavement of a Manila alleyway — and on the back of Romeo Torres Fontanilla.
Tigas, as Mr. Fontanilla was known, was lying facedown in the street when I pulled up after 1 a.m. He was 37. Gunned down, witnesses said, by two unknown men on a motorbike. The downpour had washed his blood into the gutter.
The rain-soaked alley in the Pasay district of Manila was my 17th crime scene, on my 11th day in the Philippines capital. I had come to document the bloody and chaotic campaign against drugs that President Rodrigo Duterte began when he took office on June 30: since then, about 2,000 people had been slain at the hands of the police alone.
Over my 35 days in the country, I photographed 57 murder victims at 41 sites, each represented by a yellow dot on this map.
I witnessed bloody scenes just about everywhere imaginable — on the sidewalk, on train tracks, in front of a girls’ school, outside 7-Eleven stores and a McDonald’s restaurant, across bedroom mattresses and living-room sofas. I watched as a woman in red peeked at one of those grisly sites through fingers held over her eyes, at once trying to protect herself and permit herself one last glance at a man killed in the middle of a busy road.
Not far from where Tigas was killed, I found Michael Araja, shown in the first photo below, dead in front of a “sari sari,” what locals call the kiosks that sell basics in the slums. Neighbors told me that Mr. Araja, 29, had gone out to buy cigarettes and a drink for his wife, only to be shot dead by two men on a motorcycle, a tactic common enough to have earned its own nickname: riding in tandem.
In another neighborhood, Riverside, a bloodied Barbie doll lay next to the body of a 17-year-old girl who had been killed alongside her 21-year-old boyfriend.
“They are slaughtering us like animals,” said a bystander who was afraid to give his name.
I have worked in 60 countries, covered wars in Iraq and Afghanistan, and spent much of 2014 living inside West Africa’s Ebola zone, a place gripped by fear and death. What I experienced in the Philippines felt like a new level of ruthlessness: police officers’ summarily shooting anyone suspected of dealing or even using drugs, vigilantes’ taking seriously Mr. Duterte’s call to “slaughter them all.”
He said in October, “You can expect 20,000 or 30,000 more.”
On Saturday, Mr. Duterte said that, in a telephone call the day before, President-elect Donald J. Trump had endorsed the brutal antidrug campaign and invited him to visit New York and Washington. “He said that, well, we are doing it as a sovereign nation, the right way,” Mr. Duterte said in a summary of the call released by his office.
Beyond those killed in official drug operations, the Philippine National Police have counted more than 3,500 unsolved homicides since July 1, turning much of the country into a macabre house of mourning…
More than 35,600 people have been arrested in antidrug operations the government calls Project Tokhang. The name is derived from a phrase meaning “knock and plead” in Cebuano, Mr. Duterte’s first language.
In affluent neighborhoods of gated communities and estates, there is, indeed, sometimes a polite knock on the door, an officer handing a pamphlet detailing the repercussions of drug use to the housekeeper who answers. In poorer districts, the police grab teenage boys and men off the street, run background checks, make arrests and sometimes shoot to kill.
Government forces have gone door to door to more than 3.57 million residences, according to the police. More than 727,600 drug users and 56,500 pushers have surrendered so far, the police say, overcrowding prisons. At the Quezon City Jail, shown in the middle photo below, inmates take turns sleeping in any available space, including a basketball court.
My nights in Manila would begin at 9 p.m. at the police district press office, where I joined a group of local reporters waiting for word of the latest killings. We would set off in convoys, like a train on rails, hazard lights flashing as we sped through red traffic lights.
I kept daily diaries and audio recordings of these overnight operations, working with Rica Concepcion, a Filipino reporter with 30 years of experience.
We joined the police on numerous stings. We also went on our own to the places where people were killed or bodies were found. The relatives and neighbors we met in those places often told a very different story from what was recorded in official police accounts.
“Nanlaban” is what the police call a case when a suspect resists arrest and ends up dead. It means “he fought it out.” That is what they said about Florjohn Cruz, 34, whose body was being carted away by a funeral home when I arrived at his home in the poor Caloocan neighborhood just before 11 p.m. one night.
His niece said they found a cardboard sign saying “Pusher at Adik Wag Tularan” — “Don’t be a pusher and an addict like him” — as they were cleaning Mr. Cruz’s blood from the floor near the family’s altar …
The police report said, “Suspect Cruz ran inside the house then pulled a firearm and successively shot the lawmen, prompting the same to return fire in order to prevent and repel Cruz’s unlawful aggression.”
His wife, Rita, told me, between pained cries, that Mr. Cruz had been fixing a transistor radio for his 71-year-old mother in the living room when armed men barged in and shot him dead.
The family said Mr. Cruz was not a drug dealer, only a user of shabu, as Filipinos call methamphetamine. He had surrendered months earlier, responding to Mr. Duterte’s call, for what was supposed to be a drug-treatment program. The police came for him anyway.
As my time in the Philippines wore on, the killings seemed to become more brazen. Police officers appeared to do little to hide their involvement in what were essentially extrajudicial executions. Nanlaban had become a dark joke.
“There is a new way of dying in the Philippines,” said Redentor C. Ulsano, the police superintendent in the Tondo district. He smiled and held his wrists together in front of him, pretending to be handcuffed.
Mr. Cruz’s 16-year-old nephew, Eliam, and 18-year-old niece, Princess, said they had watched from a second-story porch as the plainclothes officers who had killed their uncle emerged from the house. Eliam and Princess said they heard the beep of a text message and watched as one of the men read it from his phone.
“Ginebra’s won,” he announced to the others, referring to Barangay Ginebra San Miguel, the nation’s most popular basketball team, which had been battling for the championship across town. The teenagers said the men celebrated the team’s victory as their uncle was carried out in a body bag.
Roel Scott, 13, is one of the boys in the photo above, at the spot where his uncle, Joselito Jumaquio, was slain by a mob of masked men. Mourners often place candles in the blood of the victim to honor them.
Roel said he was playing video games with Mr. Jumaquio, a pedicab driver who had also surrendered himself to the authorities, when 15 of the masked men descended quickly and silently over the shantytown called Pandacan.
Witnesses told us the men dragged Mr. Jumaquio down an alley and shouted at gathering neighbors to go back into their homes and turn the lights off. They heard a woman shout, “Nanlaban!” He’s fighting it out.
Two shots rang out. Then four more.
When it was quiet, the neighbors found the pedicab driver’s bloodied body — a gun and a plastic bag of shabu next to his handcuffed hands. The police report called it a “buy-bust operation.”
I also photographed wakes and funerals, a growing part of daily life under Mr. Duterte. Relatives and priests rarely mentioned the brutal causes of death.
Maria Mesa Deparine lost two sons in a single week in September. Both had turned themselves in to the police. Both were found dead under bridges.
Ms. Deparine said it took her three weeks to collect loans and donations totaling 50,000 pesos, about $1,030, to pay for the burial of her baby, Aljon, who was 23. We went with her to the funeral home where she pleaded with the owners to reduce the fees for his brother, Danilo, 36.
Danilo’s body, on the floor in the middle photo above, had already spent two weeks in the morgue, where the dead are stacked like firewood, with nothing separating them. The funeral directors agreed to a cut rate of 12,000 pesos, about $240, for a one-day wake instead of the usual week.
Ms. Deparine left, unsure whether she could come up with the sum, or whether Danilo would end up in a mass grave with other victims of the president’s drug war.
The killing disrupts every aspect of life. Family members told me that Benjamin Visda, in the coffin in the above photo, had stepped out of a family birthday party to grab something at a sari sari and was eating cake when eight men grabbed him. Within 20 minutes, his body had been dumped outside a police station.
The police called this, too, a buy-bust operation, and said that Mr. Visda, while handcuffed, tried to grab an officer’s gun — Nanlaban — so they shot him. The video below, also taken from a security camera, shows him being loaded alive onto a motorcycle, sandwiched between two masked men.
The same night Florjohn Cruz was killed, we found ourselves a few streets away an hour and a half later, at another home where a man had been murdered. It was raining that night, too.
We heard the wrenching screams of Nellie Diaz, the new widow, before we saw her — shown in the middle photo below — crumpled over the body of her husband, Crisostomo, who was 51.
Mr. Diaz grew up in the neighborhood, and worked intermittently, doing odd jobs. His wife said he was a user, not a dealer, and had turned himself in soon after Mr. Duterte’s election. She still thought it unsafe for him to sleep at home, and told him to stay with relatives. But he missed his nine children, and had returned days before.
Mr. Diaz’s eldest son, J.R., 19, said a man in a motorcycle helmet kicked in the front door, followed by two others. The man in the helmet pointed a gun at Mr. Diaz, J.R. said; the second man pointed a gun at his 15-year-old brother, Jhon Rex. The third man held a piece of paper.
J.R. said the man in the helmet said, “Goodbye, my friend,” before shooting his father in the chest. His body sank, but the man shot him twice more, in the head and cheeks. The children said the three men were laughing as they left.

Whereas some of the language in the foregoing citation is arguably emotive, the facts nevertheless indicate that seeking drug rehabilitation in the Philippines far from protects a person from the risk of extrajudicial killing. Some of the photographs of murdered individuals feature handwritten placards denouncing the victims in some cases as mere users of addictive illicit drugs. There is copious evidence in independent human rights reporting over the last three years of extrajudicial killing of drug users, misrepresented to look like acts of lethal self-defence against misleadingly-described “armed” suspects. Although President Duterte reportedly suspended police from participating in anti-drugs operations in late January 2017, after officers strangled a South Korean national with no links to drugs inside a police station,[2] he merely transferred their role in the interim to another agency, the Philippine Drug Enforcement Agency (PDEA), whilst allowing for the military instead of the police to participate in the wave of drug raids he had instigated.[3] This development did not appear to modify the role of barangay leaders, let alone halt the extrajudicial killings of suspected drug users. In March 2017, Human Rights Watch reported “[barangay] ‘watch lists’ to warn drug users or identify candidates for rehabilitation involved visits that turned out to be a ‘method of confirming the identity and whereabouts of a target’.”[4]
[2] “Philippine police suspend war on drugs after brutal crackdown used as cover by rogue officers”, News.com.au, 31 January 2017,
[3] “Families of victims of Philippines drug crackdown win legal challenge”, Reuters, 10 February 2017,
[4] “Philippines demands proof for rights group's assertion of police 'executions',” Reuters, 2 March 2017,
The overall impression drawn from President Duterte’s reaction to HRW’s reporting of the crackdown is that he still stood by his call on authorities and the general population to kill those who they “identified” as having links to “shabu” (or methamphetamine, or “crystal meth”). In late March 2017, he made a speech intended for the ears of the EU in which he refused to back down from his approach to drug dealers and users, in the process at least tacitly encouraging barangay officials and vigilantes to carry on with the kind of “cleansing” operations in which they had hitherto been engaged; he also reinforced, incidentally, the position that drug rehabilitation in the Philippines would never involve prescribed and controlled dispensing of methadone, which has long been widely-viewed as an essential element in more effective methods of weaning patients off their drug addictions.[5]
[5] “‘Sons of B******!’ Fuming Philippines leader Duterte threatens to 'HANG' EU politicians”, The Express, 24 March 2017,
Meanwhile, in mid-March 2017, President Duterte restored the police to their briefly suspended role in conducting drug investigation and raids whilst, at the same time, evidently retaining the role of the military in the crackdown[6]:
[6] “Rodrigo Duterte relaunches Philippine drug war despite calls for investigation”, HRW, 16 March 2017, see also same report at The Conversation, 16 March 2017, President Rodrigo Duterte has vowed to continue his “war on drugs” in spite of growing calls for an investigation into his role in it.
On March 6, the Philippine government lifted its suspension on police anti-drug operations. The suspension had been imposed in January following revelations that anti-drug police had kidnapped and killed a South Korean businessman.
Philippine National Police Director-General Ronald dela Rosa has christened this new phase of the drug war Project Double Barrel Alpha, Reloaded, and has said it will be “less bloody, if not bloodless” than that of the previous eight months.
That bloodshed is unquestionable: police and “unidentified gunmen” have killed more than 7,000 suspected drug users and drug dealers since July 2016 ...
The body count in the first 24 hours since the resumption of police anti-drug operations indicate that the slaughter will only continue.
Police killed at least eight suspected “drug personalities” on day one. That included a couple killed in a raid involving police backed by soldiers in the southern island of Mindanao.
As has become the norm, the police tried to justify those deaths on the dubious basis that the suspects “fought back.”
Our research at Human Rights Watch found that the police have repeatedly carried out extrajudicial killings of drug suspects, and then falsely claimed self-defense. They plant guns, spent ammunition, and drug packets on their victims’ bodies to implicate them in drug activities.
The Philippines’ official Commission on Human Rights has decried the resumption of police anti-drug operations as “arbitrary” and “susceptible to abuse.” It has blamed the anti-drug campaign for causing “thousands to be killed without due process,” but dela Rosa dismissed those concerns by claiming that police “have not killed anybody for nothing.”
The director general of police has been in no hurry to confirm the Commission on Human Rights’ claim. He has resisted calls for an independent inquiry into those 2,555 killings attributed to the police during the previous phase of the anti-drug crackdown by declaring it would harm police “morale.”
Ronald dela Rosa is taking his cues from Duterte, who has rejected all criticism of his drug war and declared that the anti-drug operations will continue until the end of his term in 2022.
“There will be more killings,” Duterte vowed on March 2, “it won’t end tomorrow for as long as there is a drug pusher and drug lord.” …
Duterte has repeatedly claimed that the carnage of his drug war is a life and death battle against shadowy “drug lords.” But in the several dozen cases investigated by Human Rights Watch, the victims of drug-related killings were either unemployed or worked menial jobs, including as drivers or porters, and lived in slums or informal settlements.
Duterte has even defended the killings of poor Filipinos in the drug war, saying they represent “the apparatus” of illegal drug use.
And while the police are only now officially returning to the anti-drug fight, those "unidentified gunmen” have continued to kill with impunity. Their victims include 22-year-old Jomar Palamar and his 20-year-old girlfriend Juday Escilona, shot dead on March 1 as they emerged from a convenience store in a Manila slum area.
Local neighbourhood government officials say the two were on a police watch list for allegedly being drug users. Two nights later, unidentified gunmen killed five more suspected drug users within hours in Manila’s Quezon City.
The police attribute at least 3,603 drug war killings to these “unidentified gunmen” or “vigilantes.” They classify those killings as “deaths under investigation,” but there is a palpable lack of curiosity to identify the killers.
Although the Philippine National Police have classified a total of 922 killings as “cases where investigation has concluded,” there is no evidence that those probes have resulted in the arrest and prosecution of the perpetrators ...
The official narrative regarding “unidentified gunmen” is in fact a legal fiction designed to shield police from culpability in death squad-style extrajudicial killings.
While the police have publicly sought to distinguish between suspects killed while resisting arrest and killings by “unknown gunmen” or “vigilantes,” Human Rights Watch research found no such distinction in the cases investigated.
In several of those cases, the police dismissed allegations of involvement and instead classified such killings as “found bodies” or “deaths under investigation” when only hours before the suspects had been in police custody. Interviews with witnesses to killings, relatives of victims and analysis of police records expose a damning pattern of unlawful police conduct designed to paint a veneer of legality over summary executions.
Masked gunmen taking part in killings appeared to be working closely with the police, casting doubt on government claims that most killings have been committed by vigilantes or rival drug gangs.
It’s clear that the Duterte government is unwilling to initiate a credible and impartial inquiry into this carnage. Anything short of a United Nations-sponsored independent international investigation will only ensure that the killings continue.
Until there’s an urgent and loud international response, there’s no end in sight for Duterte’s drug war.
As a Filipino citizen, [the applicant] would be expected to register in a barangay in the event of return or removal to the Philippines. It is reasonable to infer that he might well appear somewhat conspicuous, given his limited Tagalog and his Australian accent. Accordingly he may attract more attention from barangay officials and residents, at least in the short term. [The applicant] did not present any evidence to support the implied position that such conspicuousness might lead him to be suspected of drug-related or other criminal activities. Whereas it might be easy for filipinos to detect or ascertain that he has come back to the country from Australia, he did not provide any evidence to support the contention that this could give rise to a real chance or real risk of his being kidnapped, say, for ransom.
[The applicant]’s advisor said it was very unfortunate that the former Immigration Department moved to cancel Mr [the applicant]’s visa even before he was convicted of the 2015 offence. He said it was also unfortunate that [the applicant] did not seek review of the cancellation within the statutory time limit for such action.
[The applicant] has not explicitly claimed that he faces being re-convicted of the same or a similar offence in the Philippines in what would be a case of “double jeopardy”. However, I have considered it as an implicit claim, having regard to relevant principles laid out in the Constitution of the Philippines:
As explicitly mentioned under Section 21, Article III of the 1987 Philippine Constitution:
“No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by law or an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”
To strengthen the aforementioned tenet, Rule 117 of our Revised Rules of Criminal Procedure states that:
“Sec. 7. Former conviction or acquittal; double jeopardy. – When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.
However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances:
(a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.” [7]
[7] “When does double jeopardy exist?” The Manila Times, 10 June 2018,
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]
[8] MIMA v Rajalingam (1999) 93 FCR 220.
[9] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[10] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[11]
[10] 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
[11] Sun v MIBP [2016] FCAFC 52 at [69].
[The applicant] claims he will be distinguished in the Philippines as a returned expatriate, and more to the point a returnee from a country with more widely distributed wealth, and that this will make him a target of exploitation, bullying and extortion. I accept that the kinds of profile he describes here meet the criteria of “particular social groups” for the purposes of s.5J(1)(a) of the Act. I also accept that kidnapping and extortion are serious forms of harm. However, whilst I accept the possibility of [the applicant] being regarded by some people in the Philippines more or less as a “foreigner”, “returned expatriate” and “returnee from a rich country”, there is insufficient evidence before me in this matter to satisfy me that [the applicant] faces a real chance of being persecuted for reasons of these kinds of actual or imputed profile.
I acknowledge that [the applicant] has a criminal record in Australia in the matter of common cause in sexual assault. Having considered the question of “double jeopardy” at least as an implicit claim, I find on the evidence before me that there is not a real chance of [the applicant] being re-charged, re-tried or re-convicted for the offences he was found to have committed in Australia.
Regarding the suggestion that [the applicant] will be unable to avoid falling back into the pattern of behaviour that led to his criminal conviction in Australia, thus rendering him vulnerable to extrajudicial killing as an actual or merely perceived “drug addict” or “drug dealer”, I have weighed the arguments of the advisor alongside the evidence of [the applicant] and the observations of his witness, along with the country information submitted to and elsewise located by the Tribunal.
[The applicant]’s advisor essentially argues that [the applicant] will be unable to avoid lapsing into illicit drug abuse given the stress and depression accompanying forced return to the Philippines. At least implicitly, he is arguing that [the applicant]’s propensity to indulge in illicit drugs is, or has become, “an innate or immutable characteristic” distinguishing him as a member of a “particular social group” reasonably characterised as “persons associated with the illicit drug trade in the Philippines”, with the effect that there is a real chance or real risk of his being extrajudicially or arbitrarily killed by authorities, barangay officials or vigilantes in that country. By asserting, in essence, that [the applicant] will be unable to alter the kind of behaviour that helped to get him into trouble in Australia, notwithstanding his having a functional and loving family around him, the advisor is arguing that it would be an error on the Tribunal’s part to expect him to modify his behaviour to avoid facing serious or significant harm, because it would be tantamount to requiring him to “conceal a physical, psychological or intellectual disability”, which he, the advisor suggests [the applicant] will not be able to do, and which s.5J(3)(c)(iv) says he should not be required to do. explicitly does not require him to do. Alternately, he may be arguing that expecting [the applicant] to abandon his relationship with illicit drugs would be tantamount to requiring him to alter or conceal either a characteristic “fundamental to [his] identity”, or some kind of “innate or immutable characteristic”, in a way that would be counter to the provisions in s.5J(3)(a) and (b).
As I see it, one problem with all of this is that, notwithstanding the content of the pre-sentencing report, the lack of any persuasive evidence such as medical evidence suggesting that [the applicant] is, ever was or might be addicted to any drugs considered illicit and illegal in the Philippines; I give some weight to the lack of such evidence in this matter. In addition, I give some weight to all the relevant oral evidence in this matter, much of it from [the applicant]’s own mouth, to the effect that he has matured and changed his attitude with regard to drugs; that he wishes to improve himself through such means as education and the acquiring of skills; that he has no interest in consorting with the kind of anti-social people who introduced and shared drugs in the past; that the last times he took drugs had nothing to do with necessity; that he would seek out relatives in the Philippines to help him reintegrate there, the better to stay away from anti-social influences; and that he wants generally to rise above his past mistakes and move forward with his life. Seen beside this evidence, the advisor’s arguments strike me as having been based merely in speculation.
On the evidence before me, it is not inevitable that [the applicant] will lapse into drug-taking or drug culture again, and it is not unreasonable for any s.5J(3) reason to expect him to modify his behaviour by avoiding illicit drugs, their users and their proponents. Accordingly, I am not satisfied that [the applicant] would be perceived to be a drug user or trafficker in the Philippines. For these reasons, I find that there is not a real chance of [the applicant] being persecuted in the Philippines for reasons of association with illicit drugs.

Having considered all of the evidence in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in the Philippines in the reasonably foreseeable future for any reason cited in s.5J1(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
As [the applicant] is a citizen of the Philippines, I find that the Philippines is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his complementary protection claims includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are mostly the same as his refugee status claims. Since his refugee claims have failed on the basis of a failure to meet the “real chance” test, they can no more succeed as complementary protection claims.
[The applicant] has made or implied some claims that fall outside of the refugee criteria in the Act. These claims relate to challenges he may face adjusting to life in the Philippines, such as might cause alienation, ostracism, unemployment and other detriments causing him difficulty integrating and subsisting. I accept that what he describes involves some risk of difficulty that could be harmful to physical and mental health; however, all relevant facts considered, I am not satisfied on the evidence before me that [the applicant] would suffer disadvantage or detriment in the Philippines such as would amount to significant harm, let alone intentionally inflicted, or such as would be experienced by him personally and not by the population generally.
Having considered all of the evidence in this case, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the Philippines, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 6175

27 August 2019

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