2107272 (Refugee)

Case [2023] AATA 3530

2107272 (Refugee) [2023] AATA 3530 (1 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107272

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Melissa McAdam

DATE:1 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 01 August 2023 at 9:09am

CATCHWORDS

REFUGEE – protection visa – Philippines – police officer – threats from criminal suspects before trial – fear of killing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
SZSMQ v MIBP [2013] FCCA 1768

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 May 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant, who claims to be a citizen of Philippines, applied for the visa on 21 February 2019.

    CRITERIA FOR A PROTECTION VISA

  3. 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.

  4. 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.

  5. 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…

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2107272 (Refugee) [2023] AATA 3530
Case
[2023] AATA 3530
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the protection visa application of a citizen of the Philippines. The applicant claimed to fear harm from Chinese nationals due to his involvement as a police officer in a raid on an illegal online gambling operation in November 2016. He alleged receiving death threats from these individuals, which led him to leave the Philippines and seek protection in Australia.

The primary legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution or significant harm, thereby meeting the criteria for a protection visa under the *Migration Act 1958* (Cth). This involved assessing the credibility of the applicant's claims, the plausibility of his fear, and whether the apprehended harm constituted "significant harm" as defined by the Act, considering the possibility of being removed from Australia to the Philippines.

The Tribunal applied established principles regarding the assessment of credibility and the onus on the applicant to provide sufficient detail to establish his claims. It considered the guidance from cases such as *MIEA v Guo* and *MIMA v Rajalingam*, which outline the need to give the benefit of the doubt to generally credible applicants and to consider the possibility of alleged events occurring even if not proven to a high degree of probability. The Tribunal also had regard to Ministerial Direction No. 84 and relevant guidelines concerning refugee and complementary protection. Despite the applicant's detailed account of the raid and subsequent threats, the Tribunal found that the evidence did not establish a real risk of significant harm. The Tribunal noted that none of the applicant's colleagues involved in the raid had been harmed, and the threats received were general in nature and not directly linked to specific individuals or ongoing legal proceedings.

The Tribunal affirmed the delegate's decision, concluding that the applicant had not satisfied the criteria for the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

[Details deleted][7] [7] [Source deleted]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 applicant claims to fear harm in the Philippines from Chinese nationals or related parties because of his involvement in a raid by the authorities of the [Location 1] in November 2016. 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’.[8] 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.[9] 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. [10][8] SZLVZ v MIAC [2008] FCA 1816 at [25][9] 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[10] MIMA v Rajalingam (1999) 93 FCR 220 at 240; see also 255.

Decision

Reasons for decision

The following is a summary of the information provided by the applicant in his Department interview:a.The applicant did not want to change any of the information he had provided in his Protection visa application.b.He has not travelled to any other country.c.He first arrived in Australia in February 2018. He stayed for about six months then returned to the Philippines. He came back to Australia in November 2018.d.He lives with his partner, [and specified family members] in Australia. His father [and specified family members] live in the Philippines. The applicant is in contact with them every day. e.The applicant can’t return to the Philippines because of the threat. When he worked as a [role 1] the [Department 2] cooperated with them to conduct operations on illegal online gambling in his area. In November he confiscated computers and equipment used in the illegal activity.f.After the raid the applicant received threats that if he continued to be a witness they will kill or harm him. He received the threat in June 2018. They just told his former colleagues the Chinese were looking for him. This was when he was in Australia. When the applicant returned to the Philippines his former colleagues informed him about the threat, that some individuals were looking for him and there was a threat against him. The threat stated that if the applicant does not stop being a witness on the illegal gambling they will kill him, that he should mind his business not their business. g.So far he has not received any other threat. His colleagues have not told him about any other threat.h.The applicant was a [role 1] in [a specified role]. [Details deleted.] In his work they would respond to calls regarding crimes being committed in their area.i.The applicant retired in 2018. He was still in the Philippines then. He retired because of his health condition, hypertension.j.They received information about illegal online gambling at a villa. They went to it and confiscated equipment. This was on [the day in] November 2016. The [Department 2] coordinated the operation with [Authority 1]. At the villa Chinese nationals were doing illegal online activity.k.The applicant’s role in the raid was to help the [Department 2] officers confiscate the equipment and sign the paperwork. In the villa there were several people who were Chinese nationals who were arrested. The applicant does not know the exact number. There was no resistance. The raid happened in the daytime. They were in the apartment for more than 6 hours.l.After the raid everything was documented. There were media reports about the raid. It is on youtube.m.There was a criminal trial afterwards. The applicant did not receive any invitation to attend it. He does not know if the trial has happened yet, maybe it has. n.He thinks they have threatened him because he was informed of the threat when he went back to the Philippines in 2018. He can only think of the 2016 raid as the possible cause of the threat as he has not been otherwise involved with Chinese nationals. He has no other reason for thinking they are connected.o.He does not know the names of any of the Chinese nationals.p.None of his colleagues who were on the raid have been harmed or attacked. q.He fears for his life in the Philippines. He thinks they did not harm him before because they knew they would be blamed.r.The other operations the applicant was involved in were very simple ones like theft and robbery.s.The delegate asked the applicant about the certificate of commendation he received that he had submitted with his visa application. The applicant cannot remember the details of the incident. [Details deleted.] It was in 2011.t.He obtained the copies of the incident reports by asking his former colleagues for copies. He can’t recall when they sent them to him. The documents are real not fake.u.The applicant has no other reason for fearing harm in the Philippines.v.His life is in danger in the Philippines as maybe the nationals who threatened him will harm him. Maybe because the case is still going. He can’t move to another place as maybe they will find him.w.His police friends are protecting his family in the Philippines. The applicant asked them to look after his family and stay in touch with them. So far nothing has happened to them.Delegate’s Decision

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Protection visa application The following is a summary of the claims and information the applicant provided in his Protection visa application:a.He was born in [specified] in Angeles City in Pampanga, the Philippines. He submitted a copy of his Philippines passport.b.He has been in a de facto relationship since 2013. His partner is in the Philippines. His [children, born in specified years], father, and [a sibling] are in the Philippines c.He last arrived in Australia [in] November 2018 on a Visitor visa.d.He worked in the Philippines as a police officer with the [Authority 1] [Department 1] in [a specified role]. He retired early in April 2018 for health reasons. e.As a police [role 1] for 22 years his job was to apprehend suspects and criminals. It was a tough job. He was recently emotionally harmed in the form of a "death threat" by criminals he encountered in job related incidents.f.On [a day in] November 2016, as the leader of the officers-on-case together with a team from the [Department 2], the applicant conducted a search and seizure operation with a group of Chinese occupants doing "illegal online gambling" in one of the villas at the [Location 1] in [Town 1], Angeles City, Pampanga. They encountered a big syndicate which operated internationally with online activity. [Details deleted.]g.Later he and his colleague received prank calls because they were witnesses in the case. h.Recently when the applicant went to his office to submit documents regarding his early retirement due to his hypertension, he was informed by his colleagues about some Chinese men asking for him. They had left him a letter. It was about a threat to the applicant to stop being a witness on the case. The applicant reported the matter to his office and put it on the record for his safety as well as theirs. The [Authority 1]-[Department 1] Investigation office made a blotter report about the incident and will be looking for further information regarding the whereabouts of the Chinese men.i.The applicant realized that it is not safe for him to stay in the Philippines. When he learned that his partner/de facto is going for a summer vacation again in Australia, he decided to go with her thinking it will be safe for him to go out of his country then. He decided to travel with his partner to Australia to see if things would be okay after a couple of months of their summer vacation. But he was informed by his colleagues that it is still dangerous and he needs to take the threat seriously for his safety.j.If he returns to his country the Chinese men will have all the resources to find and kill him because he is one of the witnesses of the case. Things like this easily happen in the Philippines. Even his colleagues are deciding to move out if they are financially stable like the applicant.k.He received a death threat that he knows came from the apprehended Chinese men who were looking for the applicant recently because he was one of the witnesses in their case regarding illegal online gambling.l.Because his colleagues are also at risk and told the applicant to keep himself safe in Australia they are seeking future safety as well.m.He cannot relocate because he needs to be with his children in his hometown. All the [colleges] where his children are studying are in their home area. He has informed his colleague to look after the safety of his children and has some of his police friends guard his area for their security.