2018452 (Refugee)

Case [2023] AATA 3883

2018452 (Refugee) [2023] AATA 3883 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Angela De Silva

CASE NUMBER:  2018452

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Melissa McAdam

DATE:31 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 July 2023 at 2:36pm

CATCHWORDS
REFUGEE – protection visa – Philippines – harm from corrupt police and organised crime syndicate – wrongful arrest and detention – legal proceedings against corrupt police and crime syndicate –false accusations of kidnapping – return to the Philippines on a number of occasions – no risk of significant harm now or in the reasonably foreseeable future – serious illness and currently receiving treatment through a Australian clinical trial –departure may therefore result in serious harm - referred for Ministerial intervention  – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth (1999) 197 CLR 510
DAT17 v MIBP [2018] FCCA 3750
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
MIMIA v VSAF of 2003 [2005] FCAFC 73
SZLVZ v MIAC [2008] FCA 1816  
SZSMQ v MIBP [2013] FCCA 1768

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 December 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of Philippines, applied for the visa on 2 November 2018.

  3. The applicant was represented in relation to the review.

    CRITERIA FOR A PROTECTION VISA

  4. 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.

  5. 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.

  6. A person is a refugee if, in the case of a…

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AGLC
2018452 (Refugee) [2023] AATA 3883
Case
[2023] AATA 3883
Decision Date

CaseChat Overview and Summary

This case concerned an application for a protection visa by a citizen of the Philippines. The applicant claimed he feared harm from corrupt police and an organised crime syndicate in his home country, stemming from a series of incidents including wrongful arrest, detention, and false accusations of kidnapping. He alleged that these events led to legal proceedings against corrupt police and the crime syndicate, and that he had returned to the Philippines on a number of occasions despite these fears. The decision under review affirmed the delegate's decision to refuse the visa.

The primary legal issue before the court was whether the applicant faced a real risk of significant harm if returned to the Philippines, thereby meeting the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), or alternatively, whether he met the complementary protection criterion under section 36(2)(aa) due to substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there was a real risk of significant harm. The court was required to assess the applicant's claims against the country information for the Philippines, particularly concerning corruption within the police force and the prevalence of organised crime, and to determine the credibility of the applicant's evidence in light of these broader country conditions.

The court applied the principles of assessing credibility in administrative inquiries, noting that the onus rests on the applicant to provide sufficient detail to establish the relevant facts, and that a decision-maker is not required to make the applicant's case or accept all allegations uncritically. The court considered the applicant's history of alleged persecution, including wrongful arrest and detention, and the subsequent legal proceedings and threats. However, the court found that the applicant had not satisfied the Tribunal that he currently faced, or would face in the reasonably foreseeable future, a real risk of significant harm. This assessment was made in the context of the applicant's repeated returns to the Philippines and the fact that he was receiving treatment for a serious illness through an Australian clinical trial, which departure might therefore result in serious harm. The matter was referred for Ministerial intervention.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

DFAT’s most recent ‘Country Information Report - Philippines’, published in August 2021, contains the following:The Philippines is ranked 115 out of 180 countries in Transparency International’s 2020 Corruption Perceptions Index. There are credible reports of corruption in the government and public sector, often linked to personal connections or nepotism. According to the 2020 Global Corruption Barometer, 86 per cent of Filipinos surveyed thought government corruption was a “big problem” and 19 per cent reported having paid a bribe to access public services in the previous 12 months.…The Philippine National Police (PNP) is structured as a national police force with specialist commands that cover geographic areas and specific kinds of crime, including child sex abuse, crimes involving women, and counter-terrorism operations. Recruits receive one year of initial training, followed by three to six months of additional training in a specific area. While police are generally competent, they lack resources and capacity, and have poor coordination with other agencies.… The PNP has systemic problems with corruption and impunity, including petty corruption. Local sources report the extent to which police are corrupt varies throughout the force and depends on the individual officer. Sources note senior police may be more likely to be involved in serious corruption, due to the patronage-driven nature of Philippines politics.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant submitted his Philippines passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of the Philippines. The Tribunal assesses the applicant’s claims against the Philippines as his country of nationality and receiving country.Credibility The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70). In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

Decision

Reasons for decision

The following is a summary of the information provided by the applicant in his Department interview:a.The applicant’s eldest [child] is an Australian citizen. His other [child] is a student in Australia. His wife is on a Protection visa in Australia.b.His wife helped expose a woman who was committing fraud buying one-way flight tickets for people. The woman, with some armed guards, came to their home. The police came in cars and got their guns and the men told the police that the applicant and his wife were kidnappers. The police took the applicant and his wife to Manila. His wife’s [relative] is in media and started broadcasting what was happening to the applicant and his wife.c.The police put the applicant and his wife in a room. They saw [Ms B]talking closely with the police. They were accused of kidnapping her [Relative 1]. In the morning the applicant was able to call his lawyer and the applicant and his wife were released.[Ms B]’s [Relative 1] made a statement that he was not forced to go anywhere.d.[Ms B] is in a group of syndicates.e.Task Force [name deleted] police kept following the applicant and his wife. They were rogue police officers. f.There was a kidnapping court case which the applicant and his wife won. The case was dismissed in about 2010. [Ms B] was jailed for life but sometimes they see her roaming around.g.The applicant was forced to go back to the Philippines to sell some property because he needed [an] operation. Armed men were parking in front of his house wanting embezzlement. They damaged his car. So he left the Philippines again.h.A [person], [Ms A], was killed [details deleted]. The Philippines police were trying to scare the applicant. The applicant read that it was[Ms A]’s husband who was responsible but the body[details deleted]. This was [in] 2015.i.The delegate asked why the applicant would continue to return to the Philippines in the subsequent years. He responded he was trying to get his youngest [child] to Australia as she was the only one left there. He also had to sell his property there to pay for his operation.j.After Task Force [1] the police went to the applicant’s office and took the applicant and his wife to a safe house. They were put in a jail. There were other rich business men there. They were kept there for ransom. This happened in the year [2008], this is in the newspaper. The applicant’s [child] in Australia was contacted. k.The time they were kidnapped was from the office. He is not sure when this was. They were kept overnight and his [child] in Australia contacted a cousin who was a big business man in Manila who could talk to him by phone. He was able to call and the applicant could talk to his cousin. His cousin said he would do what he could. In the morning he gave some ransom money, like 5 million pesos. Then the captors gave the applicant and his wife their cell phones and they called their house to send a car to pick them up and they went home.l.The applicant and his wife were not killed after the events because of the media. The delegate asked why the rogue officers were not able to harm or kill the applicant while he remained in the Philippines for about the next ten years. He responded that he kept travelling because his wife had a Business 2]. When he and his wife returned they would not go to their house but sleep with their relatives and friends.m.He did not claim protection earlier because he did not want to be a big problem to his [children].n.If he returns to the Philippines he will be nervous. The Philippines police will harm him there. They are very powerful and have a licence to kill. They didn’t kill him before because his wife had already left about four years before. Their life was difficult, hiding, hiding, hiding.o.The applicant’s van was damaged outside of his house. The delegate referred to a police report that the accident happened [in]November 2017. The applicant responded that was the second incident, his car was damaged earlier too.p.He came to Australia after the accident in November 2017 but again returned to Philippines.q.The applicant tried to sell his [Business 1] but nobody wanted to buy it[information deleted].r.He can’t relocate to avoid harm.Delegate’s Decision

Ratio Decidendi

Legal Principle Established

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.Protection visa application The following is a summary of the claims and information the applicant provided in his Protection visa application:a.He was born in [year] in [City 1] in [Province 1]in the Philippines. He submitted a copy of his Philippines passport. b.He is married. He has [children]who live in the [Country 1[and [more children]who live in the Philippines. His wife and other [child] are in Australia. c.He is of Catholic religion.d.He last arrived in Australia [in]July 2018 on a Visitor visa. He has travelled previously to [Country 2], [Country 3], Country 4], [Country 5], and the [Country 1].e.He ran a [Business 1] in his home city in the Philippines.f.He left the Philippines because he was being extorted millions of money by a wide scale syndicate which put his life in danger for several years. He was warned that as long as he did do not go back to the Philippines anymore nothing will happen to him and his family. He tried to fight the corrupt officials and military men in court but their connection is everywhere so he decided to seek protection for himself and the security of his family. g.This started in an incident involving a woman who was a suspect in fraud and swindling for large-scale illegal recruitment that victimized many people including the applicant and his wife who were falsely accused by the suspect. This led to military men raiding his house in the middle of the night and accusing him and his wife of kidnapping the woman’s son. He and his wife were detained.h.Corrupt men from Task Force [1] were responsible for harming the applicant and his family when they raided his home. He and his wife filed a complaint against the men who had detained him and subjected him to harassment and threats demanding bribes for his and his wife’s release. The men became angry and planned to get back at the applicant with abuses ranging from arbitrary arrest and unlawful detention to threats and acts of violence that extorted money from him to make them stop.i.He and his wife sought help but police and government official went the other way because they are cohorts with the criminals. j.Because his friends and families are in the Philippines the applicant does not want them involved or harmed. k.If he returns to the Philippines he will be abused as he was before when he failed to pay them. There were several incidents that recently happened which involved a missing person who was killed and buried at the back of his business establishment as a warning to the applicant. During his last birthday when he was driving home, someone crashed into his car but he managed to escape and end up at the hospital. l.Anywhere in the Philippines the men can easily find the applicant and his wife through any means and they have deep connections.