2013741 (Refugee) - [2025] ARTA 756

2013741 (REFUGEE) [2025] ARTA 756 (17 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Virgilio Costes (MARN: 1682862)
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2013741
Tribunal:General Member E Chan
Date:17 March 2025

Place:Adelaide
Decision:The Tribunal affirms the decision under review.

Statement made on 17 March 2025 at 5:13pm
CATCHWORDS
REFUGEE – protection visa – the Philippines – fear of harm from influential local man after traffic incident, with police collusion – threatening text messages – inconsistent and implausible claims and evidence – departure planned in any case – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 August 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of the Philippines, applied for the visa on 6 December 2017. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owes protection.
The applicant appeared before the Tribunal on 25 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicant was represented in relation to the review by Mr Costes. The representative attended the Tribunal hearing.
BACKGROUND
The applicant was born in Kidapawan City in Cotabato Province, in the Philippines. He is a Filipino citizen.
The applicant first arrived in Australia [in] July 2013, travelling on a visitor visa (subclass 600) and departed Australia [in] October 2013. The applicant arrived again in Australia [in] February 2016, travelling on a visitor visa (subclass 600) and departed [in] November 2016. Most recently, the applicant arrived in Australia [in] October 2017, travelling on a visitor visa (subclass 600) and has remained in Australia since that date.
On 8 September 2020, the applicant lodged an application with the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This decision and statement of reasons is made by the Tribunal.
Evidence before the Department
In his protection visa application, the applicant stated that he was seeking protection in Australia from the Philippines for the following reasons:
a.The applicant left the Philippines because his life was at risk. He received a threat from a man named, [Mr A], whom he encountered on the road due to a traffic incident which occurred on 18 October 2017.
b.The applicant had given way to [Mr A] but [Mr A] was still very furious and yelled at the applicant to watch out because he was going to get him, harm him and may even kill him. In addition, the applicant received text messages that threatened to harm him.
c.The incident made the applicant very worried and scared for his safety. He sought help from his family and left straight away for Australia to seek protection.
d.He suffered past harm in the Philippines in that [Mr A] threatened to harm and even kill the applicant after the traffic incident. He will suffer ‘cruel treatment’ and ‘significant harm’ from [Mr A]if he returns to the Philippines.
e.The applicant reported the traffic incident to the police. They made a record of the report but did not take any further action. As a result of his police report, the applicant received more messages from [Mr A].
f.The applicant did not try and relocate to another part of the Philippines because even though he reported [Mr A] to the police [in] October 2017, they took no further action and he continued to receive a threat through text messages. [In] November 2017, the applicant asked his father to get a copy of the police report and they found out it was not recorded anymore. The police told his father to make a new police report which was then done on the same day. The applicant reasoned that this may indicate there may be an ‘inside job’ in the police office hence why they could not locate the police report, dated [October] 2017.
g.He is unable to relocate to another part of the Philippines because [Mr A] is an ‘influential person’ and he has ‘many connections’. He can find ways to locate the applicant if the applicant returns to the Philippines so he decided to leave immediately for Australia for his safety.
The applicant also provided the Department with the following documents in support of his protection visa application:
a.An ‘extract of record’ from the Kidapawan City Police Station, dated [November] 2017 which reads:
[Reference] – [The applicant’s father], [Age] years old, married, senior citizen and a resident of [Suburb] Kidapawan City appeared to this office and requested to put into record that his son named [the applicant], [Age] years old, single, [occupation] and a resident of abovenamed place was allegedly threatened by certain [Mr A] of [Location], Cotabato, to quote “[deleted].” Incident happened on or about 10:00 in the morning of October 19, 2017’.
b. A one-page document containing what appear to be three messages in a foreign language dated 18 October 2017 between 8:01pm and 8:03pm.
On 29 July 2020, the applicant participated in a recorded interview with the Department with respect to his protection visa application. The matters raised in the interview that were taken into account by the delegate, included:
a.   The applicant is a Roman Catholic and advised the Department that he has never experienced any problems in the Philippines on account of his religion.
b.   On 18 October 2017, the applicant was driving his car and abiding by the applicable road rules and speed limit when another car drove up fast behind him. According to the applicant, the driver started to tailgate him, beeping his horn until the applicant found an opportunity to move out of his way and let the driver overtake him. When the applicant moved out of his way, he slowed his speed. When the driver passed him, he rolled down his window and yelled at the applicant and threatened him.
c.   After the incident, the applicant pulled his car over because he was feeling shaken up and scared. While he was parked, a tricycle driver pulled up next to him and informed him that the man who yelled at him is a member of an influential family that live about three hours from the location of the incident.
d.   [In October 2017], the applicant went to the police station and reported the incident. He told the police what had happened and named the driver who abused him. Soon after making the report, the applicant started receiving threatening text messages on his phone. According to the applicant, the messages expressed anger at him for reporting the traffic incident to the police; one message warned the applicant to be careful because when the driver sees him again he will kill him. The applicant speculated that the messages were from [Mr A]. The applicant believed [Mr A] has contacts within the police department who told him about the report.
e.   The applicant then asked his father to obtain a copy of the report. However, when his father did so, the police told him that none exists. The applicant then speculated that [Mr A] must have arranged for the report to be disposed of.
f.    [In] October 2017, the applicant left the Philippines because he feared for his life and the lives of his family members.
In refusing the applicant’s protection visa application, the delegate found the applicant’s claims concerning the traffic incident to be ‘vague in detail and far-fetched in nature’. The delegate found it implausible that a tricycle driver was able to identify the driver who yelled at the applicant and the fact that the applicant received threatening text messages following the incident. The delegate also found it implausible that the applicant would be so shaken by the event that he left the Philippines three days later to seek protection from Australia.
The delegate was prepared to accept that the applicant experienced a potentially frightening road rage incident in the Philippines, but they did not accept that the applicant received threatening text messages for reporting the incident to the police. The delegate did not accept that [Mr A], or any other person, targeted the applicant because of a road rage incident. The delegate found that the applicant fabricated his claims for the purpose of applying for, and in the hope of being granted, a protection visa. Ultimately, the delegate was not satisfied that the applicant faced a real chance of persecution if he returned to the Philippines for one or more of the reasons set out in s 5J(1)(a) of the Act. The delegate was also not satisfied that the applicant faced a real risk of significant harm if he returned to the Philippines for the purposes of complementary protection.
Evidence before the Tribunal
The applicant participated in a hearing before the Tribunal on 25 February 2025. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
At the hearing, the applicant requested time to submit material supporting his claim that there is general crime in Kidapawan City and there were instances of random persons being killed. The applicant also requested additional time to have foreign text messages translated into the English language by a NAATI-certified translator. The Tribunal advised the applicant at the hearing that the Tribunal was prepared to accept there is general crime in Kidapawan City including instances, from time to time, of persons being killed by perpetrators unknown to them. However, it was ultimately up to the applicant to show that there was a real chance [Mr A] would harm him if he returned to the Philippines. The Tribunal granted the applicant seven days to provide any further materials in support of his protection claims. As at the date of this decision, the applicant declined to provide any further materials, including any translation of the alleged threatening text messages.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person to whom Australia owes protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and receiving country
The Tribunal accepts the applicant is a Filipino national, that he does not have citizenship or permanent residency in any other country and that the Philippines is his receiving country for the purposes of assessing his protection claims. The Tribunal also accepts the applicant most recently arrived in Australia [in] October 2017 and has remained in Australia since that time.
Does the applicant satisfy the refugee criterion for protection?
Traffic Incident
The applicant claims fear of return to the Philippines as he was involved in a traffic incident on 18 October 2017 and, following the incident, the other driver, a person by the name of [Mr A], who is well connected (including to the Filipino police), started threatening his life and will harm him if he returns to the Philippines.
The applicant claims that he completed his protection visa application form by himself without any assistance from other persons.
The applicant’s protection claims, in his protection visa application form, his interview with the Department and at the hearing, centred on a traffic incident and the events that he alleges followed that incident. The applicant claims that on the morning of 18 October 2017, he was involved in a traffic incident with [Mr A]. According to the applicant, he was driving home along the National Highway in Kidapawan City when he approached a roundabout. At the time, the applicant was driving his father’s [vehicle 1]. [Mr A] was supposed to give way but he drove straight through the roundabout so the applicant had to give way. [Mr A] was driving a [vehicle 2]. At one point, their two vehicles were side by side with each other and they were stuck on the road. [Mr A] was really angry and went to the driver’s seat, asked the applicant to wind down the driver’s seat window and started pointing his finger at the applicant, threatening that if the applicant ever drives passed or goes near his place the applicant will ‘get a hiding’ and he will kill the applicant. [Mr A] then drove off. When asked if there was any damage to his car, the applicant said there was ‘just a scratch and dent’ on his [vehicle]. The applicant estimates that the whole incident would have lasted some 18 to 20 minutes.
After [Mr A] drove off, a tricycle driver (‘witness’), who was parked on the side of the road and witnessed the incident, told the applicant that he recognised the other driver as a person by the name of [Mr A] who lived in [a municipality], in Cotabato Province, some one hour and 45 minutes drive from the location of the incident and the applicant’s hometown of Kidapawan City. This is how the applicant came to know that the other driver was [Mr A]. According to the witness, [Mr A] is a very influential man and comes from a well-known and influential family. When asked who the witness was, the applicant said he did not get his name.
The Tribunal had grave concerns about the inconsistencies between the applicant’s evidence in his application form, at the interview with the Department and even within the hearing itself. When asked what happened after the incident, the applicant said he continued to do his job, nothing happened, and he had no further contact with [Mr A]. Early in the hearing, the applicant told the Tribunal that he and his father only decided to report the traffic incident to the police [in] November 2017 when the applicant started receiving text messages, notwithstanding the incident occurred over a month prior and the applicant had apparently received an oral death threat on that very day. According to the applicant’s earlier evidence in the hearing, some two to three weeks after the incident, the applicant received three long text messages. When asked what the content of those messages were, he said the messages were trying to ‘scare’ the applicant and ‘threatening [his] life’. When asked what the police did after he made the report, he said they took his statement and then told him to go home. When asked why the applicant did not report the damage to his car for insurance purposes to the police, he said it slipped his mind.
When the Tribunal showed the applicant a document that was provided by him to the Department and appeared to contain text messages in a foreign language and asked if those were the messages he claims to have received, the applicant could not initially recognise his own document and said that document contained previews and/or extracts of news and media articles on killings in Kidapawan City. When the Tribunal asked if he still had the text messages he claimed to have been sent, the applicant said they were on his old phone and he would have to find a charger to get those messages. It was only after consultation with his representative in the hearing break that the applicant realised the document provided by him to the Department contained the alleged text messages. He agreed that according to the document, there were three messages sent on 18 October 2017 within the space of three minutes. He explained that he was nervous before the break and did not recognise his own document. As the messages were in a foreign language, the applicant advised the Tribunal that he would provide a translation of the content into the English language from a qualified NAATI interpreter within seven days of the hearing so that the Tribunal could take into account the content. As at the date of this decision, no translation was provided to the Tribunal.

When the Tribunal asked how [Mr A] would have his number given the traffic incident was very brief, they did not exchange numbers and [Mr A] drove off, the applicant could not provide any explanation, however he knew the messages were from [Mr A] because the content of the messages related to the incident. The Tribunal finds it completely implausible that [Mr A] would have the applicant’s telephone number or that the messages were sent from [Mr A] in the circumstances described. The Tribunal rejects the applicant’s explanation that the messages are from [Mr A] because they refer to the incident. The Tribunal notes that no English translation has been provided of the alleged messages. The Tribunal considers it implausible that [Mr A] would have any interest in the applicant so many years after, as a result of a minor traffic incident in 2017. There is no information before the Tribunal, aside from the applicant’s claim that the tricycle driver witness told him, that [Mr A] is a very influential person or from a very influential family. The Tribunal does not accept that [Mr A] is an influential person so far as he has a continued interest to pursue the applicant, or that he has connections and scope of influence with other significant persons in authority, to inflict harm on the applicant.
During the course of the hearing, the applicant’s evidence changed after his protection claims in his protection visa application form were read out to him. Initially, the applicant said that he and his father made the police report [in] November 2017. Then, after his protection claims in his form were read out to him, he said they went to the police station [in] October 2017 but that the police had lost the report so his father went in again [in] November 2017.
The applicant also told the Tribunal early in the hearing that he reported the incident [in] November 2017 (nearly a month after the incident) as he continued to receive messages and he was scared. Initially, he said he was sent three messages in the two to three weeks after the incident. However, according to his application form, and what he told the Department in the interview, the applicant started receiving threatening messages because he reported the matter to the police. When asked which version was the correct one, he said he received threatening messages after he made the report but that he was not able to save them and they were deleted. When asked why he could not save them and why they were deleted, he said he was scared and ‘it slipped off his mind’ and he was only able to save the first three messages on 18 October 2017. When asked how many other threatening messages he was sent but that he could not save, he thought there could be three more. When asked when those other messages may have been sent to him, he said ‘after maybe on 19, 20 or 21^st October’; he confirmed they were after the first three messages sent on 18 October 2017, but all were received before his father lodged the police report [in] November 2017. He then denied it was the case, as per his claims in his protection visa application form and his information before the Department, that he received messages because of his report. When the Tribunal repeated his response to confirm his answer, he changed his response again and said that what he told the Department initially was true that because of his police report he started receiving messages because after he made the police report, the messages got worse. When asked by the Tribunal if there were now more than six messages, he said after he did the police report, he got a really long message; [Mr A] was very angry but he was not able to save this message either. He was confident this one was sent after [November] 2017. When asked what the seventh message said, he responded generally that [Mr A] was very angry and the threats got worse, ‘that he would kill [the applicant] and [his] family’.
When the applicant was questioned about his previous trips to Australia, he gave the following evidence. Between July and October 2013, he left the Philippines to visit his sister who resides in Australia as she needed someone to care for her son (the applicant’s nephew) who was then two to three years old. At the conclusion of the trip, he returned to the Philippines and went back to his previous job in Kidapawan City. Between February and November 2016, he came to Australia again to look after his nephew who is autistic. The applicant claims that it was only after the second visit, and just prior to the third scheduled visit [in] October 2017, when the traffic incident happened. As a result of the traffic incident, he was so scared that he decided to leave the Philippines and try and live in Australia.
Initially, prior to the traffic incident, the applicant claims he planned to travel to Australia [in] October 2017 and stay for one month to visit his nephew and his family in Australia. The applicant has family in Australia, including his sister, brother in law and their three children. The Tribunal does not accept that the applicant initially planned only to come to visit Australia for a month and only decided to stay in Australia when the incident occurred days prior to his intended travel to Australia. The Tribunal finds that the applicant has fabricated the story of the traffic incident and [Mr A]’s pursuit of him for the sole reason of strengthening his protection claims.
Notwithstanding he has had no contact from [Mr A] for eight years, the applicant still fears for his life if he returns to the Philippines as he has heard [Mr A] is from an influential family. According to the applicant, his family have never had any contact from [Mr A]. The applicant maintains his claim that he cannot relocate to another part of the Philippines because even after he made the police report, he still received another threatening text message after that date. The applicant was born and raised in Kidapawan City and has resided there all his life. Kidapawan City, according to the applicant, is one hour and 45 minutes drive from where [Mr A]allegedly resides. The applicant’s mother and father are still in Kidapawan City. He has never considered relocating to Davao City where he studied university as Davao City is still quite close to where [Mr A] resides. When asked whether he had ever considered relocating to Manila, the applicant said he had not as Manila was still in the Philippines and he is scared to live in the Philippines. The Tribunal does not accept the applicant’s explanation as to why he cannot relocate within the Philippines as reasonable.
When asked what he meant in his protection visa application form that the police lost the police report dated [October] 2017 and his father had to do a new report [in] November 2017, the applicant said the police could not retrieve the October report and said they had deleted it without any other explanation. The applicant said he did not know why it was lost but said maybe [Mr A] knew someone in the police and organised for it to be deleted. The Tribunal does not accept that any police report was made by the applicant or his father or any other person in October 2017 with respect to the alleged traffic incident. The Tribunal does not accept that any police report made by the applicant or his father or any other person was lost or deleted by the police. The Tribunal also does not accept that [Mr A] has any associates within the police and could or would have arranged for the deletion of the October police report.
The Tribunal accepts that the applicant’s father attended at the police station on the applicant’s behalf given the applicant was already in Australia at this time and made a report dated [November] 2017. However, in the absence of any other corroborating evidence and given the Tribunal’s finding that the traffic incident ever occurred, or that [Mr A], or another person ever threatened the applicant, the Tribunal finds the police report to be completely self-serving. The Tribunal has given no weight to the one-page document containing what appear to be messages in a foreign language. The Tribunal explained to the applicant that should he wish for the content to be taken into account, the information needed to be translated into the English language by a qualified translator. The applicant agreed to provide a qualified translation within seven days of the hearing but did not do so.
Overall, the Tribunal finds the applicant’s claim of persecution if he is returned to the Philippines, wholly implausible. The Tribunal finds it completely implausible that [Mr A], or any other person, would threaten to kill the applicant as a result of such a minor traffic incident. The Tribunal finds it completely implausible that there would be another driver who happened to pass the area at the same time as the alleged traffic incident and who recognised [Mr A] and knew his background. The Tribunal also finds it implausible that the applicant would have obtained such information about [Mr A] from the witness and yet not taken his name down either for insurance purposes, the police report or just by way of general courtesy given the witness volunteered such detailed information. For the above reasons, the Tribunal does not accept that the applicant was involved in a traffic incident with [Mr A] or any other person, on 18 October 2017 or at any other time.
The Tribunal also found the applicant’s oral evidence to be inconsistent and wholly unconvincing. The Tribunal is of the view that the applicant’s story about a traffic incident on 18 October 2017 and the threats he received from [Mr A] was fabricated for the purposes of advancing his protection claims in Australia. The Tribunal also found the applicant’s evidence to be inconsistent and is of the view that he continually changed his evidence at the hearing to better support his protection claims. For the above reasons, the Tribunal does not accept that [Mr A] or any other person ever threatened the applicant in the manner claimed.
Later in the hearing, the applicant’s representative told the Tribunal that the applicant can no longer bear the stress and would like that ‘added to the first matter [claim of harm on account of Mr A]’. The Tribunal notes that there is no medical evidence before the Tribunal to indicate that the applicant has been diagnosed with any mental illness. Given the Tribunal rejects that the traffic incident ever occurred, or that the applicant has ever been pursued by [Mr A] or any other person in the circumstances claimed, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on account of any future mental health condition stemming from that experience, now or in the reasonably foreseeable future. Given the Tribunal’s findings above, the Tribunal does not accept that the applicant has suffered any stress on account of the traffic incident or related events in the circumstances described.
The Tribunal asked the applicant’s representative, Mr Costes, if he had anything to add. Mr Costes advised the Tribunal that he had no further submissions to make with respect to the applicant’s protection claims arising from the 18 October 2017 traffic incident.
Given the Tribunal’s findings that the applicant was never involved in a traffic incident and that the applicant has never been threatened by [Mr A] or any other person in the circumstances described, the Tribunal is not satisfied that the applicant faces a real chance of serious harm, or any harm, if he returns the Philippines on account of [Mr A] or any other persons for the reasons claimed, now or in the reasonably foreseeable future. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the reasons claimed, for the purposes of s 36(2)(a) of the Act.
Sexual Orientation
Towards the end of the scheduled hearing, the applicant raised an entirely new claim that he now fears return to the Philippines on account of being gay.
The Tribunal asked the applicant if he had anything else he would like to add in relation to his protection claims before the hearing concluded. The applicant said he did not. The applicant then belatedly raised a new claim relating to his sexual orientation when prompted by his representative.
The Tribunal made a number of attempts to schedule a further hearing for the applicant to give evidence in support of his new claim. However, later in discussions, the applicant declined the opportunity to discuss the claim at a further hearing and expressly abandoned the claim. In doing so, the applicant submitted through his representative that he wanted to add that he can no longer bear the stress and would like that added to the first matter.[1] Following discussions with the applicant, the Tribunal was satisfied that the applicant was abandoning his claim of fearing persecution on account of being gay not because of stress, but because he did not wish to pursue it.
[1] Addressed earlier at [41].
There is no information before the Tribunal to suggest that the applicant is gay or otherwise a member of the LGBTIQ+ community. For those reasons, the Tribunal is not satisfied that the applicant will face a real chance of serious harm, or any harm, on account of being gay or otherwise a member of the LGBTIQ+ community if he returns to the Philippines, now or in the foreseeable future. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the reasons claimed, for the purposes of s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
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) of the Act.
For the reasons set out above, the Tribunal has found there is not a real chance the applicant will experience any harm if he returns to the Philippines, now or in the reasonably foreseeable future, for the reasons claimed.
In MIAC v SZQRB,[2] the Full Federal Court held that 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. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J of the Act.
[2] MIAC v SZQRB [2013] FCAFC 33.
For the reasons given above, given the Tribunal has found the applicant does not face any harm if returned to the Philippines for the reasons claimed, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm as defined in s 36(2A) of the Act for the reasons claimed, if the applicant is removed from Australia and returned to the Philippines. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
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, the applicant does not satisfy the criterion in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision under review.
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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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