2018452 (Refugee)

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

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).
The applicant who claims to be a citizen of Philippines, applied for the visa on 2 November 2018.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
The applicant submitted the following materials with his application:
-His Marriage certificate.
-His Birth Certificate.
-Photographs of his catering business.
-Photographs of his business premises in disrepair.
-[A] 2015 media article about a missing woman, [Ms A], in [Province 1].
-A newspaper article that the missing woman’s body was found [information deleted]. The victim’s former husband is the suspect in her death.
-The applicant’s business certificate.
-1997 newspaper articles about a woman [Ms B]involved in defrauding people for fake [Country 1] visas and the role of the applicant and her husband in reporting her to the authorities. The articles describes [Ms B]falsely accusing the applicant and his wife of kidnapping her [Relative 1], who subsequently denied he had been kidnapped.
-A September 1997 affidavit from the applicant and his wife regarding the events.
-A 1997 affidavit from [Ms B] regarding the accusations against her.
-A handwritten letter from [Relative 1] of [Ms B] stating he had been looking for [Ms B]to help people get back their passports from her.
-Legal documents regarding [Ms B]and the complaint action with the applicant and his wife.
-A Traffic Accident Report, dated [in] November 2017 about a vehicle accident between a van driven by the applicant and a motorcycle with a rider and a passenger rider. The report includes the following:
Investigation conducted disclosed that prior to the incident, both vehicles were traversing along[details of accident deleted].
-Photographs of the applicant’s damaged van and the applicant in hospital.
Departmental Interview 24 September 2020
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
The delegate accepted that the Philippines national police (‘PNP’) detained the applicant and his wife [in]September 1997 for their suspected involvement in a visa scam run by [Ms B]and the alleged kidnapping of her [Relative 1]. The delegate also accepted that the applicant and his wife were successful in their case against [Ms B], which concluded in about 2010, and that they had made complaints against the PNP officers responsible for their detention and treatment during the [Ms B] investigation.
However, having considered the applicant’s repeated voluntary returns to the Philippines, credibility concerns in relation to his alleged kidnapping, as well as the length of time during which the applicant was not targeted, the delegate did not accept that the PNP or any of its former members hold a personal vendetta against the applicant. The delegate was satisfied that the applicant did not hold a subjective fear of returning to the Philippines on account of being targeted for serious or significant harm by the PNP or any other state or non-state actor.
Information to the Tribunal
Pre-Hearing Submission
On 26 April 2023 the applicant’s new representative submitted the following materials to the Tribunal:
-The representative’s legal submissions.
-Newspaper and journal articles regarding police brutality and trial delays in the Philippines.
-The 2021 USDOS Human Rights country report on the Philippines.
-The 2021 DFAT Country Information Report on The Philippines.
-A 2019 article regarding police involvement in illegal drug trade in the Philippines.
-[Information deleted].
-A 2022 article regarding charges against police in [Province 1] over alleged robbery and extortion activities.
-A 2022 article regarding the arrest of police in Manila for extortion.
-A media article about the sacking of [a senior official] and 12 subordinates of the CIDG – NCR, in relation to corruption allegations.
-Several articles about memory.
-[Information deleted].
-A 2009 article regarding the conviction and sentencing [serval] members of the then “defunct” [Organisation 1] for serious illegal detention. Included in the article is the following:
[Mr A]and his men were the subject of complaints by [several named persons] who were arrested by the [Organisation 1] operatives for alleged illegal recruitment activities. [Mr A]and his men were charged with illegally detaining the suspects between[in], 2005. … Because of the illegal arrests the [Organisation 1] was abolished.
-An article about the investigation of hundreds of people, including government officials, in the Philippines for alleged corruption.
-A 2014 Amnesty International report regarding ‘Police Torture in the Philippines’.
-An article about the 2014 Amnesty International report.
-Articles about the murder[of] , [Ms A], in 2015 in [Province 1]. [Information deleted].
-A media article about human traffickers and illegal recruiters in the Philippines.
-A 2005 article about trafficking and recruitment in the Philippines.
-An article about a police operation against a Philippines firm involved in [Country 1]visa fraud and illegal recruitment.
-An article about a Philippines Senate investigation into police corruption.
-The 2004 Presidential Executive Order creating the[Organisation 1].
-The 2008 Presidential Executive Order creating a task force against illegal recruitment after the [Organisation 1]was dissolved.
-A 2019 article regarding fake papers for [Country 1] Visas in the Philippines.
-[Information deleted].
-Articles about corruption in [Organisation 1].
-A 1955 journal article about the Philippines Police Systems.
-An article about the Philippines government structure.
-2023 articles about the sacking of the CIDG-NCR chief and others for involvement in extortion.
-1990 Philippines legislation establishing the Philippines National Police (PNP).
-A Canadian IRB research response regarding police corruption in to between 2004 and 2006.
-A 2014 journal article regarding the Philippines presidential form of government.
-A 2022 article with the headline ’[headline deleted]’.
In the representative’s legal submissions she sets out the following:
The following written submissions are provided in support of the review applicants, [(‘Applicant 1’)] and [(‘Applicant 2’)] in their appeal of the
refusal of their Protection (subclass 866) visas. Collectively, we will refer to them as ‘the
Applicants’.
Applicant 1 and Applicant 2 have both lodged separate protection visa applications (on 19
February 2016 and 2 November 2018 respectively) however are husband and wife and their
claims for protection are based on the same claims. As such, the following submissions have
been prepared in a combined format.
Consideration of Claims
The Applicants are seeking protection from the Republic of the Philippines based on political
opinion (including an imputed opinion), namely their attitude/opinion to the resistance of corruption within the law enforcement institutions of the Philippines, specifically the Philippine National Police (‘PNP’).
Due to this opinion, the Applicants submit that they have experienced both physical harm and
verbal threats as a result of the events in 1997 surrounding dealings with one [Ms B]
(‘the [Ms B] event’) and the subsequent court process that stemmed from this. Their protection visa applications detailed multiple incidents that have led to the Applicants being
physically attacked as well as psychologically threatened through fear and scare tactics including:
a. Applicant 1 and Applicant 2 being detained by PNP / Criminal Investigation and Detection Group (‘CIDG’) officers [in] 1997;
b. Same forces accused Applicant 1 and Applicant 2 of kidnapping;
c. Throughout the passage of the court case, the Applicant’s received threatening phone calls from unknown CIDG officers.
d. Motor vehicle accident dated [in] November 2017.
e. Body dump of [Ms A] [in] 2015.
The harm outlined was not minor in nature and involved deprivation of liberty and persistent
threats over the course of more than 10 years, at a serious scale of criminality by perpetrators
who are state actors and are charged by the Government to protect the citizens of the Philippines.
The fact that state actors were able to act, seemingly with impunity, compounded and perpetuated both Applicants’ fear of harm.
It must be noted that the Applicants had sought help from the Philippines authorities, by filing
formal complaints and commencing legal action at the Office of the Regional State Prosecutor.
Given that the Applicants feared harm from the police and their related investigative divisions, the Applicants had to seek recourse from the Judicial arm of government. The well documented slowness of judicial process in the Philippines meant that this avenue of recourse was not an effective means of protection.
Country Information
The case in question for the Applicants is relatively unique given that the triggering event for the fear of harm (the [Ms B]Event) is well documented and publicised. The Applicants have
supplied a number of contemporaneous documents confirming the events in question.
The Applicants’ fear of harm stems from their repudiation of the systemic corruption within the PNP and CIDG based on their experiences during and after the [Ms B] Event. There is a wealth of publicly available information to confirms that corruption within the police force is
rife and that they continue to act with impunity:
Impunity was a significant problem in the security forces, particularly in the PNP.
Human rights groups continued to express concern about abuses committed by the
national police and other security forces and noted little progress in reforms aimed at
improving investigations and prosecutions of suspected human rights violations.
The above statement is supported by the 2021 DFAT Country Information Report for the Philippines (the latest version) which confirms that ‘the PNP has systematic problems with corruption and impunity, including petty corruption’. The report also notes the practice of the police conducting their own ‘rogue operations’ which often may involve the participation of retired police officers. It is specifically stated that ‘police openly admit to the presence of rogue officers’. This is particularly salient given that the Applicants claims involve rogue operatives of the PNP/CIDG known to them as ‘Task Force [1]’.
As a blatant reminder of the level of impunity with which the police act, the Philippines has the highest number of killings by police, with a recorded 6,000 deaths between the period 2016 to 2021.
There are many media reports today of the continued corruption and ultra vires acts of the PNP and CIDG, the specifical operational arm responsible for the harm experienced by the Applicants:
a.     In 2005, [several]police operatives from [Organisation 1]were sacked for conducting illegal sting operations and extortion.
b.     In 2019, ex CIDG Chief reported in a senate style inquiry of corruption and participation in illegal drug trade by rogue officers.
c.     In 2021, 6 Manilla police officers were arrested for extortion which had taken place after arresting individuals and then demanding money in return for their immediate release.
d.     In 2022, 8 CIDG officers (from the Anti-Organised Crime Unit) were arrested following robbery and extortion allegations committed during an alleged ‘operation’.
e.     In 2022, 3 PNP Officers were arrested for extortion.
f.    [Information deleted].
Credibility
….
As acknowledged by the delegates in each of the Applicants’ cases, it was accepted that they had been involved in the [Ms B]Event and that they had been detained by PNP officers / CIDG officers. However, in both of the Applicants’ case, the delegates did not accept the claims relating to the harm that followed the [Ms B]Event, namely the kidnapping, murder of [Ms A]and the car accident (relating to Applicant 2).
One of the reasons given for not accepting the veracity of the Applicants’ claims was due to the number of times that both Applicant 1 and Applicant 2 had exited and returned to the Philippines since the initial [Ms B] Event in 1997.
We urge the Member to consider the context in which both Applicant 1 and Applicant 2 found themselves in at these times. Both Applicants had lived and worked in the Philippines all their lives and had built two successful businesses, one being a [Business 1]and the other being a[Business 2]. When the [Ms B]Event occurred, the Applicants found themselves thrust into the midst of a large-scale fraud perpetrated against them and other victims. This garnered much media attention both locally and nationally. Rather than accepting the accusations, the Applicants’ chose to fight and filed complaints against the actors ([Ms B]and the police). They were attempting to seek protection from the Government by virtue of accessing the judicial system.
It is not implausible for the Applicants’ to think that seeking redress in the Courts may insulate or protect them or at the very least lead to punishment for the PNP/CIDG officials involved including possible jail. Thus the Applicants’ attempted to continue with their usual business, which for the operation of the[Business 2],.
Factoring into this is the well documented glacial pace at which the judicial system in the
Philippines runs, in some cases up to 15 years to resolution. According to a report of the World Bank and the International Finance Corporation, the Philippines has the second longest case resolution times. This is in line with the progress of the Applicants’ own case that spanned over 10 years.
[Applicant 1]
Specifically relating to Applicant 1, one of the reasons cited by the delegate for not accepting the Applicant’s claims was that the article provided in support of her application (RE the NBI raids on[Organisation 1]) made no mention of kidnapping but only referenced ‘sub-human treatment’ of detainees by these officers. It must be noted that there is supporting country information relating to kidnapping of civilians on the part of the PNP, CIDG and other law enforcement officials, including specific reference to [Organisation 1]and this has been supplied with these submissions.
Moreover the delegate made reference to the fact that the [Organisation 1]has been disbanded in 2006 and that an Anti-Kidnapping Task Force was formed and had ‘managed to close down the kidnapping syndicate’ in dismissing the Applicant’s claims.
We draw the Member’s attention to the robust country information supplied with this submission that confirms that corruption within the Philippines government agencies, in particular their law enforcement divisions is endemic and has been since the 1970’s.
The Country Information elucidates that the mere presence of a task force is not equal to the problem being solved and is merely a band-aid to the lived experience of Philippine nationals dealing with corrupt officials.
[Applicant 2]
In dismissing the Applicant’s claims with respect to his and his wife’s kidnapping, within Applicant 2’s decision record, the delegate stated that “if the applicant and his wife experienced a traumatic event such as being kidnapped, it is reasonable to expect the applicant would have been able, at least to recall the month and the year when it happened’.
It must be borne in mind that at the time of the delegate’s interview, it had been approximately more than 12 years since the incident in question. There is a significant body of research confirming the link between time and memory decay. Based on the “Ebbinghaus Forgetting Curve, it has been established that the rate at which memory decays is dependent on time and strength of memory.
It is natural that over time, the Applicant’s recall would be affected, and we wish to draw the Member’s attention to the fact that Applicant’s 2’s memory recall was and is also compounded by:
a.     His advanced age at the time of the initial interview ([age] years old). Studies show that certain cognitive functions decline (including memory retrieval) due to shrinkage of areas of the brain.
b.     The association between trauma and and memory loss. As the delegate themselves noted, the experiences that the Applicant is recounting are traumatic events for a sexagenarian. From an outsider’s point of view, one’s natural assumption is that these events are seared into one’s memory, every minute detail never to be forgotten. Thus when an individual cannot recall with specificity, their credibility is called into question. This assumption has been challenged by targeted research on discrepancies in autobiographical memory of asylum seekers as well as the intersection of trauma and the ability to recall.
In a study conducted on US asylum seekers, the research confirmed that trauma is correlated with memory loss, with 21% of asylum seekers in the study recording memory loss. Furthermore, the study noted” Clinicians reported difficulty in establishing a detailed, meaningful chronology” of the trauma narrative due to asylum seekers’ difficulty remembering “the dates when various events occurred” and “inconsistencies in the details provided.”.
Similarly, in a study published in the British Medical Journal, it was found that in all participants,
there were discrepancies between the two accounts in question and that asylum seekers with high levels of post-traumatic stress are more likely to give inconsistent accounts if they have a long time to wait between interviews. The results of these studies confirm that Applicant 2’s credibility shouldn’t be called into question simply because times and dates for events are not easily recalled.
c.     His diagnosis and treatment for [medical condition]which he has been fighting since 2018. His interview with the Departmental delegate was conducted in September 2020 and naturally, a [medical] treatment regimen is aggressive and taxing on the individual. There is ample research which confirms that men who are being treated for[medical condition], have a clinically significant decline in their cognitive functions, including memory.
The Murder of [Ms A]
The murder of [Ms A]and the disposal of her body[information deleted]. The delegate noted in Applicant 2’s decision that ‘there is no information before me to suggest that the murder of [Ms A] was in anyway related to the applicant or his disputes with [Ms B] and the PNP’.
We note the case of Ram v Minister for Immigration and Ethnic Affairs whereby Justice Burchett stated ‘persecution implies an element of attitude on the part of those who persecute that leads to the infliction of harm or an element of motivation (however twisted) for the infliction of harm (Emphasis added)’. This is relevant to the Applicants’ circumstances, as the actual perpetrator of [Ms A]’s murder is not salient. What is relevant is the motivations of the PNP / CIDG officials making threats to the Applicants. By calling and stating ‘she is next’ to Applicant 2 (in reference to Applicant 1 if she returned to the Philippines) is a clear indication that the individuals in question wanted to claim responsibility for [Ms A]’s murder and body dump (whether or not they were responsible) to incite fear and dread in the Applicants’.
Assessment of Refugee Requirements – paragraph 36(2)(a) of the Act
PERSECUTION
Does the person fear being persecuted for reasons of race, religion, nationality, membership of a particular social group (PSG) or political opinion? – subsection 5J(1)(a) of the Act.
The Applicants claim that they will be subject to physical violence and harm if they return to the Philippines similar to what has occurred in the past on the basis of their real or imputed political opinion relating to the repudiation of corruption within the PNP and CIDG. The harm will be physical, mental and verbal. This harm will be compounded by the ongoing ability of officials to act with impunity.
Giving the Applicants the benefit of the doubt as credible persons and considering the above country information, we submit that the Applicants have a genuine and credible fear of harm for a reason mentioned in s.5J(1)(a) of the Act, if they are to be returned to the Philippines.
Is/are the reason(s) established above the essential and significant reason(s) for the persecution they fear? – subsection 5J(4)(a) of the Act.
There is no other apparent reason, other than those claimed above that the Applicants’ will be subjected to persecution and harmed if they return to the Philippines. This is essential and significant reason for the persecution they fear.
…
The Applicants’ claimed fear of persecution consists of a threat to their life and liberty, and significant physical and psychological harassment. These are the instances of serious harm provided by section 5J(5)(b).
Therefore, based on the claims, we submit that the feared persecution involves serious harm to the Applicants as required under paragraph 5J(4)(b) of the Act.
Does the persecution feared involve systematic and discriminatory conduct? –subsection s5J(4)(c) of the Act.
The Applicants’ claim that they will be the subject of physical harm and targeted discrimination due to their political opinion (real and imputed) and this persecution feared involves systematic and discriminatory conduct, considering the numerous reports, statistics, and reliable country information confirming prevalence of corruption and extortion within the PNP/CIDG resulting in violence and the enforcement of targeted detention of civilians.
…
We submit that the preceding information substantiates the Applicants’ well-founded fear of persecution and demonstrates cumulatively that they both face a real chance of serious harm in all areas of the Philippines.
…
As outlined at paragraphs 9 to 12, corruption within the PNP and CIDG is well entrenched in the system, and little has been done to consistently and determinately prevent the harm feared by the Applicants, even after they sought help via the judicial system.
Reports note “Few people dare to complain against the police, knowing they risk retribution, harassment or intimidation from officers themselves or hired thugs.
Indeed a tacit encouragement seems to be in play by the authorities.
… the Applicants have substantial grounds for believing that they will be subjected to inhuman and degrading treatment as being physically, mentally, and verbally abused by specified policing authorities and those acting on their instruction and ‘imprisoned’ in a highly volatile, violent, and dangerous situation.
…
Tribunal Hearing, 2 May 2023

The applicant appeared before the Tribunal on 2 May 2023 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant last came to Australia about five or six years ago.
b.He lived in [Province 1] in the Philippines but not in one particular house. He moved from one relative to another. His relatives lived in nearby towns and provinces. He doesn’t know their addresses.
c.The applicant last lived with his in-laws, his wife’s family, in the Philippines. He lived with his mother-in-law for about two days, then he came to Australia. Before this he lived in [Province 2]with[Relative 2]. The applicant would stay with him for three days then go back to[Province 1]. The applicant also stayed in another province, with[Relative 3]. She was a very close relative of his mother, they are sisters.
d.The applicant knows [Relative 2]because he is also a relative. [Information deleted.
e.The applicant was in [Province 1]for about two months. He just waited for his house to be sold. Before this the applicant was in [Country 1]and [Country 2]. The Tribunal put to the applicant that according to the information he had submitted he was last in the [Country 1] in 2007 and he responded that he did not know.
f.The Tribunal asked the applicant where he stayed in the Philippines between September and December 2017 and he responded [Province 1]with his[Relative 2]. The longest the applicant stayed with [Relative 2]was one week. Then the applicant went to [name deleted]for two weeks. He was transferring from one house to the other. The houses belonged to [name deleted]and[name deleted]. Then he went back to[Relative 2]’s for a week. Then he stayed at [Province 3]at[Relative 3]’s, a distant relative of his wife. The applicant would normally stay no more than one week in a place.
g.The applicant moved around so much because his maid always received threatening calls on the phone. The Tribunal put to the applicant that he had not mentioned his maid receiving threats before and he responded no. He mentions it now because it looks like the topic opens up now. It was the only time he was asked about it. He spoke with his wife today as they just had lunch together.
h.The Tribunal asked the applicant when his maid started receiving threatening calls and he responded that he is so forgetful about things. It happened right after that incident which happened. They wanted him and his wife to leave the country straight away else something bad would happen to them both.
i.His wife runs a[Business 1]. A client appeared posing to buy a [goods]for a lot of applicants. She was [Ms B]. It has been a long time since this happened, maybe less than 10 years ago. The Tribunal asked the applicant if it happened in 1997 and he said maybe.
j.The next problem the applicant had was he and his wife were kidnapped from the office. It was immediately after the [Ms B] incident, less than a year, possibly in 1998. He and his wife were in the office. There were 5 vans they used to cover the office then around 10 or maybe more armed civilians entered. They were all men except for two women who were pretending to be sales ladies. They were being used to check if the applicant and his wife were there.
k.Two of the armed men entered his wife’s office. Then another two held the applicant and tied him up. A man embraced him and led him into the van. His wife was carried into the van. They were taken to Manila to a safe house. It was in front of the shopping centre in[name deleted].
l.Inside the safe house there were jails and guards and people imprisoned, about 6 men and two women were imprisoned. He knew just one woman who lived in a nearby subdivision.
m.One of the people he knew there had her house wiped out. They took her furniture. She was in the prison because she was being charged with illegal recruitment. He doesn’t know why the other people were in there. He heard there were two in prison from the NBI. From stories he gathered they were the protectors of the woman whose house was looted.
n.[Information deleted].
o.At the safe house the applicant and his wife were locked in an office by themselves for the whole night. Around midnight someone approached him. He was “[Mr A]”. He asked the applicant who is[applicant’s middle name]. The applicant’s middle name is [name deleted]and [Mr A]said follow me and took the applicant into his office. He gave the applicant his office phone and the applicant heard his cousin tell him he was glad the applicant’s [child] called him from Australia. The applicant’s cousin called his contacts, some are [senior officials], after the applicant’s [child] told him the story of the modus operandi. The applicant’s cousin said he spoke to [Mr A]and not to worry and it’s late now and wait til tomorrow and the lawyer will come with the ransom money. He and his wife were then released the next day around lunch time because of the lawyer. The applicant’s [child]came and picked them up and took them to the airport where their eldest [child] was arriving. They didn’t go to the police because the people who kidnapped them were PNP already. There was a sign and insignia that it was an anti-organised crime unit. The Tribunal asked the applicant if he thought he was taken there as part of an operation against organised crime and he responded that he thinks so. The lawyer said they were twisting the story to create some leverage as they discovered what happened to[Ms B].
p.The Tribunal asked the applicant if the other people in the prison were also there as part of the operation against organised crime and he responded he didn’t know as the ones who dragged them there were PNP scallywags. He doesn’t know why the other people were in the prison.
q.Under s 424AA of the Act the Tribunal put to the applicant that he had said to the department delegate this happened in 2008 and there was a rich businessman being held for ransom. The applicant responded that his memory is failing him. The one who prepared his application was [Mr B]. The applicant didn’t mention specific dates to[Mr B]. The applicant was so confused then. The applicant didn’t want to go home to the Philippines anymore. He was barraged with calls. From his understanding [Mr B] understood everything and had a record of everything so the applicant never bothered him with further questions. [Mr B]was the one who prepared the dossier for the applicant’s wife. [Mr B]was sickly at the time. The applicant does not know which date is correct, when it comes to numbers he gets mixed up. The applicant confirmed that the newspaper clippings are factual. [Mr B]submitted a lot of clippings.
r.The applicant first came to Australia before the kidnapping happened. The Tribunal put to the applicant that his movement records show he first came to Australia in December 1999. The applicant responded ‘maybe’. His [child]was born when he first came to Australia and at the time he and his wife were kidnapped.[His child], was one or two months old when the problem happened with[Ms B]. [His child] was very ill at the time.
s.After the kidnappings there were death threats. These started after the [Ms B]incident, almost every day. He would also always see cars going round the house and tooting their horns, without plate numbers. They couldn’t see who were in the cars.
t.The applicant had a neighbour [Ms C]who runs a [business at her] house. The people doing the death threats frequented the place. They told the story to [Ms C] that they were after someone in the area. [Ms C] heard the men were looking for someone, she figured it was the applicant as they put their cars in front of his house.
u.When they first started receiving calls the applicant and his wife went to separate locations to live. His wife started moving around to her relatives and he went to his relatives. This was after the [Ms B] incident. They never lived in their house again. The Tribunal asked why the applicant had written in his Protection visa application that he lived at the one address in [City 1]from [year] until Oct 2018. He responded that [Mr B]put that in. The Tribunal asked the applicant how [Mr B]obtained this information and he responded he did not know. The applicant had given [Mr B]his address in the Philippines. The Tribunal asked why[Mr B]’s name did not appear on the applicant’s Protection visa application and he responded he did not know but [Mr B]was his official migration agent. The applicant blames [Mr B]for any incorrect information in the Protection visa application. The applicant confirmed that [Mr B]has recently died. The Tribunal asked who [Mr C]is, and the applicant responded that all their information went to[Mr C]. The Tribunal asked the applicant why he signed a form appointing [Mr C]as his recipient and he responded because he wanted [Mr C]to represent him even though [Mr B]was also his representative. The applicant is not computer literate so all communications passed through[Mr C].
v.When the applicant and his wife stopped living at their home one maid remained there and took care of their youngest [child]. The maid is still there. Their [child]did not go with the applicant or his wife when they left their home because she was finishing her course at University. After a few days she started going from place to place. She was over [age] when she started going to University. She is now [age]. The Tribunal put to the applicant that this would mean that he and his wife stopped living at their home just several years ago. He responded that University was for four years and maybe she was [age] when she started. The Tribunal asked the applicant if this meant he and his wife left their home because of threats they received about seven years ago and he responded yes and the threats also included cars roaming the place.
w.The Tribunal put to the applicant that the news clippings indicate the [Ms B]incident occurred in 1997. The applicant responded he hates figures and numbers.
x.Under s 424AA of the Act the Tribunal put to the applicant that his wife had said in her hearing that their [child] was left in their home when she and the applicant stopped living there. The applicant responded it was just a question of days when they left her in the house and they had to talk to her grandmother and her in-laws to make sure she could go there. He and his wife did not take her with them because they were thinking of her schedule at University and in a few years she was graduating. The in-laws’ house is very near the University.
y.The applicant stopped running his [Business 1]after the [Ms B]incident. They stopped taking any further [work]. The applicant came to Australia in 2018. He stopped running [Business 1]about one month after the [Ms B]incident. After this he sold properties so they could come to Australia. His wife did not continue to run her[Business 2]. She stopped as well at the same time as the applicant stopped his[Business 1], about one month after the [Ms B]incident. The Tribunal asked why the applicant had previously stated he travels overseas frequently because his wife ran a[Business 2]. He responded because his [child] is an [occupation]and helps them.
z.The Tribunal asked the applicant what he thought would happen to him if he returns to the Philippines. He responded that a woman was [information deleted]and the maid received another call that if and when he and his wife decide to stay and do not leave they would be next and buried there. He and his wife were in the Philippines at the time but living separately. The Tribunal put to the applicant that the killing of the woman seemed to have nothing to do with the applicant in that her body was reportedly [information deleted]. The applicant responded yes but they got calls. The Tribunal asked why the people would continually call his maid and he responded because they could not call the applicant and his wife directly. The Tribunal asked why they would bother calling the house given he and his wife were not there and he responded they know he had contacts and was following up with the maid. The Tribunal asked why he did not merely change his house phone number and he responded that he changed numbers so they could not contact him and his wife and they contacted the maid. The Tribunal asked him why he did not change his house phone number and he responded because he would have to go personally to the telephone provider to do so. The Tribunal asked why this would be a problem for him and he responded because he was afraid he would be caught by the same person. The Tribunal asked if that person worked for the phone company and he responded no but he and his wife were being monitored. The Tribunal asked how were they being monitored if they were moving around relatives’ houses. The applicant responded he and his wife would use relatives’ cars which are heavily tinted and that was one of the ways they stayed safe. The Tribunal asked if he meant they were not being monitored and he responded then how could the calls go to the house anyway. The Tribunal put to him this could be because he didn’t change the phone number and the applicant responded that he and his wife tried to limit their movements.
aa.On one occasion the applicant was in his van and it was blocked and sideswiped. It was forceful. The police came. His van was swiped by a motorcycle, a big motorcycle. The Tribunal asked if anyone was injured and he responded maybe the person riding the motorcycle. The police came and took the rider to the hospital. The applicant was told to report to the traffic bureau the next day but he didn’t do so because he had some neck pain. He asked his [child] to drive him to the hospital instead. He did not report to the bureau later, he just called a lawyer to do the necessary things. The Tribunal asked why he thought the incident relevant and he responded after that happened the following day the police started coming in and out of his house looking for him when he was in hospital. The Tribunal put to him that this may be because he had not reported as requested and he responded he didn’t think so because there were four of them who went to his house.
bb.This happened a few months before the applicant came to Australia. He remained longer in the Philippines to finish transactions. The Tribunal put to the applicant that the incident sounded like an accident and he responded that was what the police are trying to say. He saw it was almost intentional the rider was about to bump the applicant. He was on one wheel. The Tribunal put to the applicant that it sounded very dangerous for the rider to intentionally hit his van and he responded in the Philippines most of them are riding motorcycles and they would sacrifice their life for payment of money.
cc.The Tribunal put to the applicant that he kept returning to the Philippines without incident. He responded this was because he was slowly trying to disperse the family properties so they could stay in Australia.
dd.In the Philippines the applicant could be kidnapped or liquidated as leverage, in retaliation for the [Ms B]case. He and his wife helped liquidate a main asset. [Ms B]was a main asset.
ee.He is always telling the truth. He is just not good with dates.
ff.The applicant’s representative submitted that the incidents happened a long time ago and the applicant’s medical condition is compounding his memory problems. He has had an operation on[a body part]. He has[a medical condition]. His treatment is quite significant and his cognitive ability has declined since he lodged his Protection visa application. The representative has provided research on people with [this medical condition]showing significant cognitive decline.
gg.The applicant is receiving treatment through a clinical trial in Australia for his[medical condition].
Post-Hearing Submissions
On 16 May 2023 the applicant’s representative requested a further six weeks in which to obtain a psychological assessment upon the applicant. The Tribunal granted the requested extension of time, until 28 June 2023.
On the evening of 28 June 2023 the applicant’s representative provided the following written material:
-    Submissions regarding the applicant’s declining cognitive function;
-    Submissions regarding the applicant’s difficulties with recall
-    Submissions why it was not possible to provide a psychological report for the applicant by the extended due date, referencing an ‘Appendix B’.
-    Submissions regarding memory
-    A number of pathology reports on blood etc samples from the applicant.
-    2021 x-ray reports regarding the applicant’s wife.
-    A 2021 medical report regarding the applicant’s ‘sleep study’.
-    Several 2020 and 2021 medical reports and letters regarding the applicant’s [medical condition]and other ailments.
-    2019 medical documents regarding the applicant’s [surgery]
-    Articles regarding cognitive function in men with[a medical condition].
-    Medical documents dated in May 2023 regarding a referral for a mental health plan for the applicant, for ‘anxiety depression’.
On 29 June 2023 the Tribunal wrote to the applicant’s representative seeking her clarification with regard to the submission. In particular the Tribunal asked the representative to identify which of the attachments related to the points she had raised and to please identify which document was the ‘Appendix B’ referred to in relation to the difficulties providing a psychological report.
On 7 July 2023 the applicant’s representative provided ‘revised submissions that have been paginated and labelled’. The submission again referred to Appendix B in support of expressed difficulties obtaining a psychological report upon the applicant before July 2023. Appendix B in the submission is one of the articles on cognitive function in men with[a medical condition]. Appendix C is the May 2023 referral to a psychologist for a mental health plan for anxiety and depression. The Tribunal is unable to identify any other document in the submission relevant to delays obtaining a psychological report for the applicant.
The Tribunal has waited until the end of July but no further psychological information has been provided and there has been no indication anything further will be forthcoming.
Country Information
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.
If the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
In SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims’.[1] If a finding is not made with sufficient confidence, the decision maker may need to consider the possibility that that finding is incorrect when determining whether an applicant has a well-founded fear.[2] The ‘what if I’m wrong’ test was further explained by the Full Federal Court in MIMA v Rajalingam. Justice Sackville (North J agreeing) held that it followed from Guo and Abebe that there may be circumstances in which the decision maker must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. The Court held: When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. [3]
[1] SZLVZ v MIAC [2008] FCA 1816 at [25]
[2] See MIEA v Wu Shan Liang (1996) 185 CLR 259; MIEA v Guo (1997) 191 CLR 559; Abebe v The Commonwealth (1999) 197 CLR 510; MIMA v Rajalingam (1999) 93 FCR 220
[3] MIMA v Rajalingam (1999) 93 FCR 220 at 240; see also 255.
However, if a decision maker has no real doubt that its findings as to past events are correct, it is not bound to consider whether its findings might be wrong. In MIEA v Guo (1997) 191 CLR 559, the High Court stated that the Tribunal appeared to have no real doubt that its findings as to the past and the future were correct and held that ‘[g]iven its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong’: at 576. Similarly, the ‘what if I am wrong’ approach is not engaged in circumstances where a decision maker is unable to reach a sufficient state of satisfaction on the evidence to make any factual findings, due to a lack of detail and substance in the applicant’s claims or where the evidence before the decision maker is insufficient or inadequate to establish the relevant facts.[4]
[4] See SZSMQ v MIBP [2013] FCCA 1768 at [58]–[60] and DAT17 v MIBP [2018] FCCA 3750 at [30]–[31], citing MIMIA v VSAF of 2003 [2005] FCAFC 73 at [16]–[17].
The applicant’s written statements in his Protection visa application were somewhat unclear but seemed to indicate he had been subjected to a period of extortion following an incident in which he and his wife were arrested and briefly detained by the police. However during his review application he and his current representative clarified and corrected the information to present his claim as a fear of being threatened and killed by corrupt task force police in the Philippines. He claimed that he and his wife have experienced past harm in the Philippines from corrupt police and from members of a large crime syndicate. In September 1997 they were arrested and temporarily detained by police because of a false complaint they had kidnapped the [Relative 1] of a woman they allege was an ‘illegal recruiter’ and involved in [Country 1]visa fraud. Due to their actions to have the woman and associated corrupt police prosecuted they were further threatened by the police by telephone. They moved out of their home shortly after the threats began and never returned. They also had to defend a counter case lodged against them by the woman accusing them of kidnapping her[Relative 1.
At some time the applicant and his wife were also kidnapped by rogue and corrupt police task force members who held them briefly until a ransom was paid on their behalf.
In 2015 a person was killed[information deleted]. A threat was received that the same thing would happen to the applicant and his wife.
In 2017 the applicant was involved in a vehicle accident he believes was caused deliberately by the corrupt police officers who had been threatening him and his wife.
The Tribunal notes that the applicant and his representative did not pursue the claim of extortion and the Tribunal accepts that this was an initial misrepresentation of his claims.
1997 Arrest
The applicant has submitted several newspaper articles and court papers and provided detailed written and oral evidence regarding his and his wife’s arrest and brief detention in 1997 due to the false allegation they kidnaped[Ms B]’s[Relative 1].
The applicant’s evidence about the date of the incident was highly confused and contradictory. He initially stated in his hearing that it occurred when his youngest [child] (born in[date]) was just one or two months old. However he later stated it occurred about ten years ago, so around 2013. He then stated that at the time his youngest[child], who his wife and he left in their house when they fled it just after the incident, was attending university, which would mean the incident occurred just several years ago. When the contradictions were put to him he explained he is not good with dates. However the significant discrepancies between the times and the references to his[child]’s age would appear to go beyond a mere problem with dates. The applicant’s representative has submitted that the applicant has some cognitive damage due to his serious illness and the treatment he is receiving. The Tribunal considers there is some force in this submission given the independent evidence showing the incident occurred in September 1997, and the applicant’s seemingly genuine attempts to provide a timeframe with what he considered to be relevant reference points. It is also possible that the applicant is confused either with one of his other[children], born in [year] and [year], and their attendance at university, or with the event in 2015 in which the body of a murdered woman was[information deleted]. Given the applicant’s confusion appears to be genuine, and the possibility of his cognitive decline, the Tribunal makes no adverse credibility conclusions regarding the applicant’s contradictory evidence about when the incident occurred.
The Tribunal notes that the applicant and his wife have otherwise given consistent and detailed information about the incident. In view of the mostly persuasive evidence the Tribunal accepts that in September 1997 the applicant and his wife were arrested and briefly detained by corrupt police task force members. The Tribunal also accepts that it is likely the corrupt police officers were involved with [Ms B]in organised fraud within the Philippines. The Tribunal accepts the applicant and his wife were able to be released after a short time because of growing media and public intertest in the incident and an acknowledgment by[Ms B]’s [Relative 1] that he had not in fact been kidnapped.
1997 prosecution
The applicant has provided court and legal documents indicating that [Ms B]subsequently filed a case against him and his wife that they had kidnapped her[Relative 1], and that the applicant and his wife were defending the accusation. Some of the documents also indicate that the applicant and his wife were suing or bringing a counter complaint against [Ms B]regarding her alleged involvement in visa fraud and illegal recruitment and the arrest and detention of the applicant and his wife.
The applicant and his wife have been detailed and reasonably consistent over time in presenting their claims regarding the prosecution and counter-prosecution they, [Ms B], and corrupt task Force police were involved in from late 1997. They have also been reasonably consistent about winning the court cases after ten years or more and the high amount of legal fees they had to pay to do so. Their evidence has not been controverted by other available information. The Tribunal accepts this aspect of the applicant’s claims.
Threats and leaving their home
The Tribunal found the applicant’s evidence regarding the claimed ongoing threats internally inconsistent and implausible in parts.
The substance of the claim was that the corrupt task force police officers started and continued to threaten the applicant and his wife to intimidate them against bringing a prosecution against them.
However as the applicant stated he and his wife did commence the prosecution shortly after the 1997 incident occurred and continued to pursue it and their own defence for the next approximately ten or so years, with state prosecution authorities and lawyers very involved and numerous court or trial visits required. It is therefore not plausible that the corrupt task force members would persistently make empty threats for no apparent outcome.
When it was put to the applicant that he had remained in the Philippines until 2018 despite the claimed threats and intimidation he then provided new information that he and his wife had left their home once the threats and intimidation started and spent the next almost twenty years living for short periods at different relatives’ places. When asked how the threats could therefore continue he then stated that it was their maid who remained in the family home who took the constant threatening phone calls there, not himself or his wife.
When asked about their young children at the time he and his wife left their home he gave a very confused response about whether or not his daughter also remained at the home and for how long.
In his Protection visa application the applicant provided information that he continued to own and operate his [Business 1]in the Philippines at the time of his departure from the Philippines. He also submitted copies of written invitations to functions being held at his business premises in 2013 and in 2014. The Tribunal therefore finds that the applicant continued to operate his [Business 1]in [location] in [Province 1]at least until some time in 2014. Further both the applicant and his representative made reference to the applicant’s wife [Business 2]operating up until recent years.
It therefore makes no sense that the applicant and his wife would go to extreme measures to leave their home, and live in various places for very short periods over the next twenty or so years, to avoid any acts of retribution or intimidation by the corrupt task force officers yet continue to attend their workplace in the same locale where they would be similarly vulnerable to any actions by the corrupt task force officers.
The applicant’s evidence was contradictory and implausible regarding the claimed threatening calls. The Tribunal therefore does not find it credible that he and his wife, or their maid, received threatening calls from the corrupt task force officers or crime syndicate members. The Tribunal also does not find it credible that the applicant and his wife moved out of their residence in 1997 shortly after the incident as a result of receiving threatening calls there.
Kidnapping
The applicant made no clear mention of being kidnapped in his initial Protection visa application but raised this as a claim at his department interview and before the Tribunal and through his representative’s submissions.
The applicant’s evidence regarding when the kidnapping occurred was very confused. He initially stated it was in 2008. However at hearing he was adamant it occurred in 1998, shortly after the [Ms B] incident. The applicant’s wife gave evidence in her matter that it occurred in 2005 but later also insisted that it occurred in 1998. The Tribunal accepts the representative’s submission that the passage of time, stress and other factors can adversely impact a person’s ability to recall precise dates. However this is not a matter of a precise date but a difference of ten or so years.
The newspaper article submitted by the applicant, in support of this claim, is dated [in 2005] and headlined “[headline deleted]”. [Information deleted]. [5]
[Footnote deleted]
[Information deleted].
In one of the articles[6] referred to above, published in October 2005, the following is reported:
[Information from article deleted].
[Footnote deleted].
A 2009 report states that [several] members of the by then defunct [Organisation 1] were convicted of illegal detention.[7] The report includes the following:
[Information deleted].
[Footnote deleted].
The applicant’s representative has submitted that the absence of the applicants’ name from the newspaper article regarding [Mr A]is not evidence that they were not kidnapped as claimed. The Tribunal acknowledges this and was not suggesting otherwise but was merely trying to ascertain the relevance of the article to the applicant’s claims for protection as up until the time of hearing this had not been clear. It is obvious that not all people kidnapped for ransom by [Mr A] and his team would be named in newspaper reports. Further the victims who were named were still being illegally detained at the time of police operations against [Mr A] and the [Organisation 1]. In contrast the applicant claims that his ransom was paid quite quickly so that he and his wife were released within a day.
The Tribunal notes that there are reports of accusations that Task Force [2] members kidnapped people for extortion at the time [Mr A] was part of it, that is in the early 2000s and/or late 1990s. There is also a great deal of information that [Mr A] and [Organisation 1]kidnapped people for extortion in the brief period before the [Organisation 1] was dissolved for this reason, namely 2004 to 2005. Therefore, the independent evidence supports that [Mr A] and/or corrupt members of a police task force were involved in kidnappings.
Further the independent evidence for the 2005 period supports the applicant and his wife’s contentions that [Business owners 2]such as his wife were targets of [Mr A]’s kidnapping for extortion operation under allegations of involvement in illegal recruitment. Whereas the earlier task force, Task Force [2], was part of drug law enforcement, not combatting illegal recruitment. This would indicate that if the applicant and his wife were kidnapped by [Mr A] and his rogue officers it is more likely to have occurred in 2005 not 1998, nor in 2008, and to have been done by [Organisation 1] members, not Task Force [2] officers.
Given the confusion in the applicant’s evidence regarding when the kidnapping occurred and which Task Force officers were the perpetrators the Tribunal has some doubts about the credibility of this claim. However balanced against these concerns is the depth of detail the applicant and his wife provided about the actual incident which included quite personalised recollections. The applicant conveyed a strong impression that he was speaking from genuine recall, despite his high level of confusion about when it occurred. Further, there is available country information about the prevalence of kidnapping for extortion in the Philippines, including in circumstances in line with those described by the applicant and his wife, at least in 2005. Therefore, despite it concerns, the Tribunal is not confident that the applicant has fabricated this claim, and so gives him the benefit of the doubt that it did occur, albeit in 2005.
The Tribunal notes that both the applicant and his wife insisted during their tribunal hearings that the kidnapping occurred in 1998, and not in 2005 as the applicant’s wife had initially stated and the newspaper clipping similarly stated. Why they would insist on this if it actually occurred in 2005 is not apparent on the available information. Perhaps they were simply extremely genuinely confused or they had some misplaced concerns regarding presenting an accurate timeframe, however it remains largely inexplicable.
On the basis of affording the applicant the benefit of the doubt the Tribunal accepts that in 2005 the applicant and his wife were kidnapped by members of[Mr A]’s [Organisation 1] and held overnight until a ransom was paid for their release by the applicant’s cousin.
However the Tribunal does not accept that this incident was connected to the applicant and his wife’s case with [Ms B]and the corrupt police which ensued in September 1997. According to publicly available information Task Force [1] was formed in the Philippines in 1995 as “[a special anti-crime task force]”.[8] There is no indication that it or its personnel were linked to [Mr A] and/or the [Organisation 1] or even to Task Force [2]. The actions of the kidnappers also do not reflect any particular interest in the applicant and his wife apart from being a source or ransom money. Further the kidnappers’ act in releasing the applicant and his wife once the ransom was paid does not reflect any personal adverse interest in the applicant and his wife or that they were the subject of threats.
2015 Murder
[footnote deleted].
There is available independent evidence[9] confirming that in 2015 a woman was killed, allegedly by her ex-husband, [information deleted] in [Province 1]. According to the available reports[Information deleted].
[Footnote deleted].
The applicant has suggested that either the murder of the victim or the location of her body were directly connected to the applicant and his wife. He and his representative has also suggested that the corrupt task force police used the fact of the murder and the location of the body as a threat against the applicant’s wife.

The Tribunal does not accept that either the murder or the location of the body had any direct connection with the applicant and his wife. [Information deleted]. Further the evidence submitted clearly shows that the crime was committed as a result of the victim’s ex-husband’s relationship to the victim and had nothing to do with the applicant or his wife.
The applicant’s evidence regarding subsequently receiving a telephone call that they would be similarly killed in the Philippines was contradictory and implausible. As stated above there is no plausible reason why the corrupt officers would have a problem with the applicant or his wife in 2015. The court case they had been involved in was finalised several years previously. There is no apparent reason why or how they would pose any problem to the corrupt officers or crime syndicate to warrant any threat against them.
Given the above the Tribunal does not accept that following the discovery of the victim’s body [information deleted]he received a threat that he and his wife would be similarly killed in the Philippines.
Vehicle Accident
The applicant claimed that he had an ‘intentional’ vehicle accident as a result of the threats and intimidation from the corrupt task force police officers in about 2017.
The accident report submitted by the applicant confirms the accident but describes it as accidental with the motorbike riders being the injured parties. There is no indication before the Tribunal that the report is inaccurate or otherwise misrepresented the situation.
The applicant did not provide any evidence to show there was any link between the van accident and threats or adverse interest from corrupt police officers. There was no indication of any threatening intent for the accident nor any basis for suspicions it was purposefully caused. Nor was there any evidence that the applicant’s actions or profile would trigger any threats or harm from the corrupt police officers at such a time.
In view of the lack of any evidence or indication to support the applicant’s claimed belief that the accident was intentionally caused the Tribunal does not accept it.
Fear of Harm in the Philippines
The Tribunal has accepted the following:
-That the applicant and his wife were wrongfully arrested and detained for a day in September 1997 for a false accusation they had kidnapped a person. The person was the [Relative 1] of a woman whose victims the applicant’s wife had assisted. The woman was allegedly involved in illegal activity with corrupt police as part of a crime syndicate.
-That the applicant and his wife were involved for many years in defending the complaint that they had kidnapped the woman’s [Relative 1] and in bringing counter proceedings against the woman and the corrupt police. They won both cases after many years.
-That the applicant and his wife were kidnapped in 2005 by members of a corrupt task force and released the next day after a ransom was paid.
In relation to the incident and proceedings which arose from the September 1997 incident with [Ms B]and the corrupt Task Force [1] police, the Tribunal notes that neither the applicant nor his wife have been troubled further by [Ms B]or the police or any other members of a crime syndicate following their court case wins. The Tribunal has not been able to locate any information about where [Ms B]now is but accepts the applicant’s beliefs that she has not been kept imprisoned. However there is no accepted evidence that [Ms B]or the police or other criminals have maintained any interest in the applicant and his wife since the court case was finalised.
On the evidence before it the Tribunal is not satisfied there is a real chance of any serious or significant harm to the applicant in the Philippines from [Ms B] or other criminals or the corrupt police from Task Force [1], now or in the reasonably foreseeable future.
In relation to the 2005 kidnapping of the applicant and his wife the Tribunal notes that following the payment of the ransom and their release the day after neither the applicant nor his wife have had further contact from [Mr A] or [Organisation 1] officers. The purpose of the kidnapping was to obtain the ransom, not any actual personal adverse interest in the applicant. The Task Force was disbanded shortly after and there is no accepted evidence that anyone involved ever threatened or harmed the applicant or his wife again. There is also no reason why anyone involved in the 2005 kidnapping would now want to harm the applicant or his wife.
On the evidence before it the Tribunal is not satisfied there is a real chance of any serious or significant harm to the applicant in the Philippines from [Mr A] or the corrupt police from the former [Organisation 1], arising from the 2005 kidnapping.
The Tribunal notes that the applicant continued to live in the Philippines following both the 1997 incident and the 2005 incident. He also continued to return to the Philippines on the many occasions he travelled overseas to see family living abroad or to have holidays. His actions in continuing to live in and return to the Philippines demonstrate a lack of fear in living there. The Tribunal has not accepted that the applicant left his residence in 1997 and did not return there. The Tribunal finds, as set out in his Protection visa application, that the applicant continued to live at his residence up until the time he finally departed the Philippines in 2018. He therefore continued to live and work in the Philippines from 2005 until 2018 without further problem, incident or threat.
The Tribunal acknowledges that the applicant and his wife have had two quite terrifying experiences in their lives in which they were subjected to very serious abuses from corrupt authorities. However these two experiences occurred almost twenty years ago and there is no indication that there is a real chance of either of them, or anything similar, being repeated. The available country information shows a high level of corruption and violence in the Philippines however the applicant and his wife have, subsequent to the past incidents, not attracted any further adverse attention from the authorities, corrupt or otherwise, or been subjected to violence or threats of violence. The applicant and his wife continued to live in the Philippines, travel back and forth to it, operate their businesses, and raise their family in the Philippines for many years before finally moving to Australia. The Tribunal is not satisfied there is a real chance or serious or significant harm to the applicant in the Philippines because of the general corruption there, now or in the reasonably foreseeable future.
The applicant has not raised any other claims to fear serious or significant harm in the Philippines and none arise on the information before the Tribunal. The Tribunal notes that the applicant has a serious illness and may not receive treatment in the Philippines similar to that he is receiving in the clinical trial in Australia. However this would not be the result of serious harm for a refugee related reason and nor would it be significant harm intentionally inflicted upon the applicant.
On the information before it and for the reasons given above the Tribunal is not satisfied there is a real chance of serious or significant harm to the applicant in the Philippines. The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in the Philippines as defined by s 5J of the Act. The Tribunal is also not satisfied there is a real risk the applicant will be subjected to significant harm on return to the Philippines.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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).
Ministerial Discretion
Having regard to the applicant’s circumstances and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 417, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
Pursuant to the Ministerial Guidelines, cases which have compassionate circumstances regarding the age and/or health of the person that if not recognised would result in serious ongoing and irreversible harm and continuing hardship to the person, may be brought to the Minister’s attention. The Tribunal notes that the applicant has a very serious illness and is currently receiving treatment for [medical condition] in an Australian clinical trial. His departure from Australia may therefore result in serious harm to his health. The Tribunal therefore respectfully recommends this matter be bought to the Minister’s attention, for consideration of his discretionary power under s 417 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa McAdam
Member

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

[2023] AATA 3883

31 July 2023

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