2101447 (Refugee)

2101447 (Refugee) [2024] AATA 2492 (28 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Fides Olivia Velarde (MARN: 1803361)
CASE NUMBER: 2101447

COUNTRY OF REFERENCE: Philippines
MEMBER:Rosa Gagliardi
DATE:28 May 2024
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 May 2024 at 2:54pm
CATCHWORDS
REFUGEE – protection visa – Philippines – particular social group – victim of loan sharks – single mother – criminal activities – fear of killing – employment – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 8 February 2021 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 (a matter the Tribunal accepts) applied for the visa on 20 September 2016.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2). The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to the Philippines there is a real risk she will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant’s engagement with the Tribunal
The Tribunal wrote to the applicant on 3 May 2024 to invite her to a hearing scheduled for

28 May 2024 at 10:00am [EST]. In response to the hearing invitation, the applicant on

22 May 2024 indicated in writing that she would take part in the hearing scheduled for

28 May 2024. She advised that there would not be any witnesses to support her case at hearing and that she would provide a statement.
On 27 May 2024 the Tribunal received correspondence from the applicant stating she would not be attending the hearing but would allow the Tribunal member to decide her application for review based on the available information provided in her statement to the Tribunal (undated and set out in full below under evidence at the time of review). The Tribunal notes that the applicant is represented and that the consequences of not appearing in person to deal with matters where questions and gaps in the evidence needed to be addressed, would have been explained to her. Forfeiture of an opportunity to engage with the review process is not something that should be taken lightly when the applicant has claimed they have a well-founded fear of persecution and serious harm on return to their home country.
Of course, there are circumstances where the documentation is enough to make a positive finding. However, in this case it has been made clear to the applicant that the Tribunal had considered the material before it, but had been unable to make a favourable decision on the information alone. In this case, the applicant is relying heavily on her recent undated statement to the Tribunal.
The Tribunal understands that proceeding to decision on the material before it entails a discretion only and that careful thought needs to be given to ensuring fairness to the applicant. In this instance, the Tribunal is satisfied that the applicant did not wish to attend a hearing and that she accepted that the Tribunal need not necessarily take any further steps to enable her to appear before it.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant returned to the Philippines now or in the reasonably foreseeable future, she would be persecuted for one of those reasons and/or whether she would suffer serious harm. Alternatively, the Tribunal must assess whether the applicant meets the complementary criteria.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
At question 89 of her application, the applicant wrote that she left her country because of distrust of the judiciary and law enforcement, poor system of government, bureaucracy “starting from the lowest level to the top”, the destruction of the global economy and the impact on the national economy. She also wrote her father had a retail shop and had to make loans from unlicensed financial companies. With the Philippines economy deteriorating her father could not repay the debts. She took the opportunity to come abroad to Australia to help her father settle the debts. The applicant was threatened that if she could not repay the loan the lender would kill her family. Poverty and unemployment are big issues in the Philippines, and she had been living in harsh conditions. She lived in mental distress and fear and many people in the Philippines had similar problems to her. She wanted the Australian government to provide her protection and work.
She wrote at question 90 that if she returned to her country, she could not help her father to repay any debts and the money lender would kill her family, including the applicant.
The applicant put forward that she had already experienced harm in her country because she had received verbal threats that she would be hurt. Besides that, she lived in hardship because of the bad economy. She also stated she did try to get help in her country for her difficulties, but nothing happened because this was a matter of the economy, and people borrowed money from unlicensed companies and as such it was considered a “personal problem”. The applicant stated that she did not try to move to another part of the country because this was a matter involving socio-economic issues and she would experience the same difficulties if she moved to another place in the Philippines.
The applicant added she would live in harsh conditions and suffer discrimination as someone of Indonesian origin. Moreover, she was not able to relocate because it involved socio-economic difficulties across the nation.
In its decision of 8 February 2021, the Department raised serious questions about the applicant’s credibility that the Tribunal would have liked to explore in depth with the applicant at hearing. This is because the applicant’s written claims provided in her responses to questions 89 to 96 of her application were:
identical in content, font and format to those made by another PV applicant, xxx. The applicant confirmed that xxx was her friend and former house mate in [Town 1], Victoria. When asked to explain the duplication, the applicant denied receiving or providing assistance when completing her PV application form, which I find casts doubt about her credibility.
In such circumstances, the applicant’s unwillingness to appear before the Tribunal to explain these matters is even more perplexing.
Evidence at the time of review
In her submission accompanying her statement that she declined to attend the hearing without requesting a postponement, the applicant stated she wanted to clarify and provide additional context to her application and the circumstances leading to her departure from the Philippines:
Allegations of Duplicate Responses
It has been noted that certain parts of my written claims appear identical to those of another PV applicant, xxx. While it is true that xxx is a friend and former housemate, I categorically deny any assistance or copying of responses. Any similarities are coincidental and likely due to shared experiences and discussions about our situations, which may have influenced how we articulated our claims. Unfortunately, these similarities cast doubt on my credibility, but I assure you that my claims are genuine and personally experienced.
Indonesia citizenship
Regarding the claim of Indonesian citizenship, I acknowledge that there may have been confusion or errors in my application. I am indeed a citizen of the Philippines, and I apologise for any miscommunication that may have arisen. I did not intend to mislead or provide false information; I have no documentation to suggest otherwise.
Economic Hardship and Migration History
I am a college-educated, single mother who has consistently sought to provide financial stability for my family. My work history in the Philippines as an [occupation 1] and subsequent employment in [Country 1] in customer service was driven by the need to support my family. The economic recession in [Country 1] and the imminent threat of redundancy compelled me to consider alternative options, leading to my travel to Australia. The economic hardship many Filipinos face, as corroborated by available country information, is a significant factor in my decision to seek better opportunities abroad.
Fear of Harm from a Loan Shark
As I mentioned, my family had borrowed money from a loan shark. All my family members, including myself, feared for our lives because the loan shark threatened us with a gun if we didn’t repay the borrowed amount. The payments are ongoing, and I am remitting the money through my mother. Due to the high-interest rate, the debt has persisted longer than anticipated, although we have managed to reduce the amount owed.
Whether a payment is collected, the loan shark visibly carries a gun, reinforcing the threat of violence if we fail to pay. The economic crisis still exists in the Philippines, and one of the primary reasons I am here is that I cannot provide the payment to the loan shark if I am in the Philippines. Hence, our lives are in danger.

Distrust of Authorities
I cannot trust the authorities in the Philippines. The town where I lived is plagued by corruption, allowing influential individuals to influence the authorities and circumvent justice. The authorities are unreliable in protecting individual safety, contributing to a failed system. This lack of adequate state protection exacerbates our vulnerability to threats from the loan shark.
Continuing of Payments
The payments to the loan shark are continuing, and I am diligently sending money through my mother. Due to the high interest rates, the debt has continued longer than anticipated, but we are gradually reducing the amount owed. Each time a payment is made, the loan shark is visibly armed, emphasising the constant threat to my family’s safety.

Economic Crisis
The economic crisis in the Philippines is ongoing, and this situation has directly influenced my decision to stay in Australia. If I were to return to the Philippines, I would be unable to continue making payments, putting our lives in grave danger.

Conclusion
Staying in Australia allows me to continue working and supporting my family, ensuring their safety and mine by keeping the loan shark at bay. Given the context and circumstances, I respectfully request that my application be reconsidered. I acknowledge the need for scrutiny in protection visa applications and am willing to provide any additional information or clarification required.
Regrettably, I hereby notify you of my inability to attend the upcoming hearing. Consequently, I respectfully request that the tribunal base its decision on the available information.
The Tribunal finds it anomalous that in being represented, the applicant would not have provided a reason for not being able to attend the hearing and not sought a postponement so she could put her claims to the Tribunal in person. The Tribunal has no medical evidence before it, for example, that the applicant was physically, emotionally, or mentally unwell to attend the hearing. Even if the applicant had advised that for a less serious reason the timing of the hearing was inconvenient or unsuitable, the Tribunal would have been prepared to postpone the hearing to ensure the applicant could attend. It is for the applicant to make her case and in this instance, the Tribunal has many unanswered questions about the claims put forward.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
Allegations of duplicate responses to questions in protection visa application
From the Departmental decision, it would appear that a substantial portion (and key aspects) of her responses to questions posed in the application form were similar in detail to another person’s application claims. At hearing the Tribunal would have liked to ask the applicant to provide additional detail about how such a coincidence arose in that her application essentially mirrored those of another application. Did both parents borrow money from unlicensed loans sharks, for example, and were both families threatened in the same way.
Overall, however, the Tribunal does not have enough information to conclusively determine that the claims are simply a template copy of another person’s experiences without having discussed this matter with the applicant. As such, the Tribunal considers that in fairness it ought to take the claims at face value and to determine them on their merits, on the information available before it and to place no adverse weight on the similarities to her application and those of another applicant, as the Tribunal has limited information about how such similarities arose. This matter does not go to the applicant’s credibility overall and the Tribunal finds that it does not.
Indonesian citizenship
This is another matter the Tribunal would have liked to discuss with the applicant at a hearing as it is difficult to see how confusion about one’s nationality or citizenship could have arisen. The Tribunal would have explored this matter with the applicant to better understand how the misunderstanding arose as it is unlikely that one would be confused about one’s citizenship. In any event, this matter is not material to the applicant’s claims – the applicant is simply stating that she does not wish the Tribunal to assess any claims about her being discriminated in the Philippines on account of any other nationality/citizenship. Accordingly, the Tribunal places no adverse weight on this matter in respect of her credibility overall.
Economic hardship as a single mother

The applicant made it clear that many people in the Philippines are affected by poverty as reflected by the Departmental decision. In the Philippines, 18.1% of the population lived below the poverty line in 2021 and for every1,000 babies born in the Philippines in 2022, 27 died before their 5^th birthday.[1] Further, poverty incidence in the working-age population provides some indication of the difficulty individuals have in contributing to payroll-tax based social security arrangements.[2]
[1] ‘Poverty Data: The Philippines’, Asian Development Bank, Philippines: Poverty | Asian Development Bank (adb.org).
[2] ‘Republic of the Philippines Review of the Social Security System, Considerations for Strengthening Sustainability and Coverage, 23 June 2016, Social Protection, Labor and Jobs Global Practice East Asia and Pacific Region.
Nonetheless, the Philippines economy is not acting in concert with the Philippines state to personally target the applicant to reduce her to poverty for any reason under s.5J(1). That is, it is not for her race, religion, nationality, membership of a particular social group or political opinion.
It would also seem to be inconsistent with the applicant’s claims that she faced significant economic hardship in the Philippines when she has recently claimed that she is college-educated and had the possibility of working in [Country 1] to support her family, indicating a level of mobility and the possibility to travel. At a hearing, had the applicant attended, the Tribunal would have asked the applicant whether such education involved tertiary education and if so, how she might have managed to pay for it, or she had simply attended college at school (higher school). The Tribunal would have also liked to ask the applicant about her precise skills set to assess the likelihood of her being able to adapt in the Philippines economy, given her international experience in [Country 1] and Australia. The applicant has stated that she is an [occupation 1], reflecting employability in either the private or public sector in the Philippines or anywhere else. The Tribunal would have also liked to ask the applicant whether she has worked in Australia and how she has managed to survive here for a significant period – since 2016.
The Department also made the discovery (as reflected in the Departmental decision) that the applicant had sent more than AUD80,000 in remittances to relatives in the Philippines indicating she was working in Australia. In today’s currency this converts to about 3,090,683.20 Philippine pesos[3]. The average salary in the Philippines is 161,84 per year (AUD 3,218) [4].
[3] 80,000 AUD to PHP | Convert Australian Dollars Philippine Peso | Exchange Rate in Philippines (revolut.com).
[4] ‘The average salary in the Philippines (cost, comparison, outsourcing), 80,000 AUD to PHP | Convert Australian Dollars Philippine Peso | Exchange Rate in Philippines (revolut.com).
Clearly, the applicant has been able to support herself in Australia and to send to her family a significant amount of money that would more than cover their basic living expenses. At a hearing the Tribunal would have liked to ask the applicant what industry she had been working in in Australia to be able to save such an extensive amount to send overseas. This matter is material because it does give rise to the Tribunal having concerns that, according to her own evidence, the applicant wishes to work in Australia, and creates doubt in the mind of the Tribunal as to whether the applicant is in Australia for the sole purpose of benefitting financially, and finds that she does not have a well-founded fear of persecution on return to the Philippines now or in the reasonably foreseeable future.
The applicant appears to say in her most recent statement that she was paying off a loan to a loan shark but given the Tribunal’s gaps in facts and knowledge about such a loan, is not able to be satisfied that the AUD80,000 was in fact used to pay off a loan, rather than solely to assist family members to live in the Philippines, given Filipinos often rely on financial support from families, including remittances from relatives living overseas.[5]
[5] BTI 2024 Philippines Country Report 2024’, BTI 2024 Philippines Country Report: BTI 2024 (bti-project.org).
On the evidence before it, the Tribunal is not satisfied that the applicant will face serious harm on return to the Philippines because she would face significant economic hardship that threatens her capacity to subsist, or that she will be denied the capacity to earn a livelihood of any kind where that denial threatens her capacity to subsist, or for any reason under s.5J(1). The applicant in having been able to save a significant amount in Australia to send overseas, and in being able to work in a high-level economy such as [Country 1], clearly has skills she can adapt in the Filipino environment to support herself and her children. Even if the Tribunal were to find the applicant would struggle to find appropriate employment in the Philippines, she has been resourceful enough to live in other countries, and any ensuing difficulty has not been engineered by the state to personally target the applicant or her family.
Single mothers in the Philippines
The applicant has stated that she has had to travel abroad to support her family as many other Filipinos do, including in [Country 1]. The applicant has not put forward any reason under s.5J(1) she would suffer as a single mother in the Philippines. The Tribunal’s research shows that there is some stigma toward single mothers in the Philippines,[6] but the Tribunal is unable to find that as a particular social group, single mothers in the Philippines are targeted for persecution by either the state or individuals as a whole. The passage of the July 2022 law of the Expanded Solo Parents Welfare Act, a landmark law giving lone parents more benefits and legal protection[7] has somewhat reduced the societal stigma associated with being a single mother in the Philippines.
[6] ‘International Women’s Day 2023, Philippines: Single Mothers Continue to Fight Stigma’, Rorie Fajardo-Jarilla, 8 March 2023, Institute for War & Peace Reporting, Philippines: Single Mothers Continue to Fight Stigma | Institute for War and Peace Reporting (iwpr.net).
[7] Ibid.
The Tribunal would have liked to explore at a hearing with the applicant why as a single mother in the Philippines she would be discriminated against such as to deny her the capacity to subsist, given she has been able to subsist and provide for her family to date, and has even been able to leave her country to work abroad to support her family.
Having very little evidence before it to point to the applicant having any reason to fear not being able to find employment to sustain herself and her family in the Philippines, the Tribunal finds that it does not accept that the applicant would face serious harm on account of her membership of a particular social group (single mother) under s.5J(1) or that she will face serious harm as set out under s.5J(5), and the Tribunal rejects that this is the case.
Claims about fear of harm from loan shark
The applicant is claiming she and her family are members of the particular social group, victims of loan sharks.
The Tribunal has many unanswered questions about the claimed loan. At a hearing, for example, the Tribunal would have liked the applicant to set out the precise amount of the principal of the loan as well as the rate of interest her family had borrowed at. In addition, the Tribunal would have expected that such an agreement would be set out by way of a contract to ensure the applicant did not resile from making interest re-payments as agreed, or the overall agreed amount to be repaid. Without such critical information the Tribunal cannot be satisfied that the applicant’s family ever borrowed money from a loan shark and the Tribunal rejects this claim entirely.
The Tribunal would have also liked to discuss with the applicant country information which shows that the Department of Justice (DOJ) has emphasised that engaging in harassment of individuals who have borrowed money from lenders, is illegal and punishable by law.[8] Persons who borrow money from loan sharks are encouraged to document transactions, gather supporting evidence and reporting to authorities.[9] The Tribunal would have asked the applicant whether she could demonstrate by way of receipts or remittance invoices regarding payments sent to her mother, already made on the principal of the loan, and whether she could demonstrate the amount owing on the loan, as well as any outstanding interest. Without such critical information the Tribunal does not accept that the applicant continues to have an arrangement with any loan shark from whom she or family members borrowed money, or that indeed she or her family ever entered into an arrangement with an unlicensed money lender.
[8] ‘Don’t Get Bitten by Loan Sharks! How to Safeguard Yourself from Illegal Lending Practices in the Philippinnes’, 11 April 2024, Digido Financial Writers Team, How to Fight Loan Sharks Harassment in the Philippines | Digido.
[9] Ibid.
In addition, country information shows that the Securities and Exchange Commission (SEC) enjoined another batch of lending operators from further engaging in lending activities for their failure to secure the necessary licenses [10] and:
Moreover, the abusive collection practices engaged in by unlicensed online lending companies constitute unfair debt collection practices which the Commission expressly prohibits under SEC Memorandum Circular No.18, series of 2019 (Prohibition on Unfair Debt Collection Practices of Financing Companies and Lending Companies) which took effect recently…[11]
[10] Credit Information Corporation, ‘Philippine News Agency, ‘SEC orders 12 more online lenders to stop operations’ [PNA] SEC orders 12 more online lenders to stop operations | Credit Information Corporation.
[11] Credit Information Corporation, ‘Philippine News Agency, ‘SEC orders 12 more online lenders to stop operations’ [PNA] SEC orders 12 more online lenders to stop operations | Credit Information Corporation.
Given that National Police conduct on-going targeted operations against illegal money lending and related criminal activities[12], and given the applicant states that her mother on repayment of sums of money to the loan shark was accosted by men with machine guns, the Tribunal queries why the applicant did not approach the authorities to seek assistance in retreating from the arrangement in which a loan shark was threatening herself and her family to repay outstanding debts.
[12] ‘How to Deal with Loan Shark Philippines? (2024). How To Deal With Loan Shark Philippines? (2024) - Ktktld. This article states that a victim of loan sharks, can also report the matter to the National Bureau of Investigation (NBI), as well as the police and the SEC and that Legal Aid and Consumer Protection Agencies could also provide support and guidance. It also encourages victims to document dates and times of calls and messages, screenshots of messages containing threats or intimidation, recordings of calls if legal.
The Tribunal would, at a hearing, have discussed with the applicant, why the money was needed precisely as she claims her father’s business was not doing well. However, the Tribunal would have asked the applicant whether her father could have gone into another business or simply allowed himself to become bankrupt, rather than enter into such a risky arrangement with a loan shark.
The applicant has also provided little specific detail about when certain events occurred in the Philippines. For example, what date and time she had been threatened or any other members of her family had been threatened and would have asked her whether she had ever documented as evidence the threats from this unidentified loan shark. Her claims about fearing a loan shark are generalised and do not provide context which would have satisfied the Tribunal that the applicant was narrating lived experiences.
The Tribunal also has limited information before it regarding the name of the claimed unlicensed company for which the loan shark worked and does not have any information about the characteristics of the loan shark it is claimed her family borrowed money from.
The Tribunal is also unclear why the loan shark has threatened the applicant and not her father who needed the loan. The Tribunal would have liked to be in a position at hearing to ask the applicant whether her family was living safely in the Philippines currently and why she was the central person being targeted.
The Tribunal also queries as to why the applicant’s family chose to go to an unlicensed lender rather than seek funds from a registered financial institution such as a bank, or other lending agency, where the rate of interest would have been determined at a transparent rate and in the event of financial difficulties, the applicant’s family might have been able to enter into a reasonable repayment plan.
CONCLUSION
The Tribunal finds that the applicant has not established her claims with convincing evidence or material. Consequently, the Tribunal does not accept that the applicant will face serious harm or will be persecuted on return to the Philippines now or in the reasonably foreseeable future:
·because she will not be able to find any work in the Philippines or elsewhere to support her family to be able to subsist.
·because as a member of the particular social group, single mothers in the Philippines, the applicant will be denied, because of her membership of this particular group, by the state or the economy or anyone else, to make a livelihood of any kind such that the denial threatens her capacity to subsist, or that she would face significant economic hardship that would threaten her capacity to subsist.
·because the applicant or her family were ever indebted to loan sharks or anybody else in the Philippines on account of being a member of the particular social group, victims of loan sharks.
·because the applicant has only partially repaid her loans.
·because the applicant or any family member has ever been threatened by unidentified loan shark/s or others associated with their activities.
·the applicant’s mother encounters gun wielding men on repayment of any amounts of funds owed to the non-identified loan shark.
With so many unanswered questions, limited evidence before it, and the applicant declining to engage in a hearing, the Tribunal on the material before it also does not accept the applicant’s claims that she will experience serious harm on return to the Philippines now or in the reasonably foreseeable future, by way of a threat to her life or liberty, significant physical harassment, or significant physical ill-treatment from any state authority or related associates, or from individuals such as loan sharks, or anyone else.
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).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has also considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, there is a real risk that the applicant will suffer significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution.
The Tribunal has rejected the applicant’s claims, regarding facing serious harm that would lead to impoverishment generally, or that as a single mother she would face significant hardship that would threaten her capacity, and her family’s capacity, to subsist. It has also rejected that the applicant or any member of her family has entered into a loan arrangement with an unlicensed lender who is now physically and verbally threatening the applicant and her family. Consequently, the Tribunal finds that it is not satisfied that there are substantial grounds for believing that there is a real risk she will suffer significant harm due to any adverse profile with any loan shark, with any state or non-state actors in the Philippines, and the Tribunal rejects that the applicant will be arbitrarily deprived of her life; or that the death penalty will be carried out on her; or that she will be subjected to cruel or inhuman treatment or punishment; or that she will be subjected to degrading treatment or punishment by non-state or state actors.
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) based on 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).

DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
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.
…

[2024] AATA 2492

28 May 2024

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