2107272 (Refugee)

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

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).
The applicant, who claims to be a citizen of Philippines, applied for the visa on 21 February 2019.
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 [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.
The applicant submitted copies of the following materials with his Protection visa application:
-His [Authority 1] identification card.
-His report to the [Authority 1] [Department 1] dated [on a day in] September 2018, regarding the threat to him.
-A Certificate of Commendation from the [Authority 1] to the applicant, dated [in] February 2011 for his effort and initiative in the apprehension on [a day in] January 2011 of 4 male suspects who were employees of [Location 1] transferring stolen items.
-His Birth Certificate.
-[Authority 1] Service Award presented to the applicant for 20 years of service on [date].
-[Authority 1] Certificate of employment in the applicant’s name, dated [in] January 2018, describing him as having a regular appointment of ‘[rank]’ under [Department 1].
-A letter from an Investigator of the [Section 1] of the [Department 1] in [the Town 1 area], dated [in] November 2016. The letter is signed by four people including ‘[the applicant], Officer on Case’. The letter outlines the following:
On or about [time] [a the day in] November 2016, TOC duty Desk Officer [named] dispatched the undersigned probers with regards to the request of [Authority 1] Police Assistance of [Officer A] of [Department 2], [Division 1] regarding their search and seizure operation to be conducted at [Address 1] inside [Location 1], [Town 1 area], Philippines.
Upon arrival thereat met with [Authority 1]-[Security], Internal Security of [Location 1] headed by [name], and Operatives of [Department 2] headed by [Officer A]. Atty. [name] of [Location 1] and duty [Location 1] Manager [name] also arrive at the said villa.
The team is equipped with search warrant [number] issued by the [Court 1], [region and branch], Angeles City, duly signed by Presiding Judge [named].
The search and seizure operation is intended for the occupants of [Address 1], [Location 1], [Town 1]: Pampanga for violation of P.O. 1602 (Prescribing Stiffer Penalties on Illegal Gambling,) in relation to Sec 6 of RA 10175 also known as the Cybercrime Prevention Act of 2012".
At around [time] after a short briefing conducted by [Officer A], the search, tagging/labelling started at [Address 1] in which approximately [numbers of specified items] were confiscated during the said operation.
The search and seizure operation was done orderly, lawfully and peacefully.
At around [time the following day], items seized were all loaded on [vehicles] with plate [numbers]. The said search and seizure was terminated at about [time the following day].
Departmental Interview, 11 December 2020
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
The delegate found that the applicant was a [role 1] with [Authority 1] prior to leaving the Philippines; he played a supporting role in a police operation regarding illegal online gambling [in] November 2016 at the [Location 1] in [Town 1], Angeles City, Pampanga; he did not receive prank phone calls or a threatening letter; and Chinese nationals are not seeking to harm him as a result of his participation in the operation. The delegate was not satisfied that the applicant had a well-founded fear of persecution in the Philippines, or that he was owed complementary protection.
Information to the Tribunal
With the applicant’s review application he submitted copies of the following documents:
-     The applicant’s [Authority 1] Employee Identification Card.
-     [Authority 1] Service Award to the applicant, dated [date], acknowledging the applicant’s 20 years of employment with [Authority 1].
-     [Authority 1] Certificate of Commendation, dated [in] February 2011, issued to the applicant for his efforts apprehending [Location 1] employees transferring stolen items to a vehicle.
-     A ‘[Department 1]’, ‘[Section 1]’, ‘Incident Report’, dated [in] September 2018, which states that on [that day in] September 2018 “former [Authority 1] [Department 1] [Officer] [the applicant]”:
… went to [Authority 1] Corporate Offices to settle documents pertaining to his early retirement due to health reason. Afterwards he came at the [Department 1] Office to visit his former colleagues when one of his former officemate saw him and informed him that sometime in June 2018 there are some Chinese individuals who were looking for him. He then asked hm what they want from him but his former officemate told him that they told the Chinese individuals that [the applicant] was no longer working at [Department 1]. The Chinese then left without saying anything back. [The applicant] then think who might be those Chinese individuals looking for him. He then only remember he encountered Chinese individuals was when he was with some [Department 2] personnels who coordinated to this office to served a search and seizure operation at [Address 1] of [Location 1] in [Town 1] were they confiscated some computers and laptops. They also apprehended some Chinese individuals for illegal online gambling. At about 1400H [on that day], when [the applicant] was about to go home a building guard on duty of [Department 1] approached him and said … sir, you have a letter here and I just kept it in case you drop by after your vacation… [The applicant] then took the letter. [The applicant] then open the letter and it read , “[Tagalog script] Mind your own business [Tagalog script] Chinese.”
-     An email from the applicant to the Department delegate attaching links to video footage of the November 2016 raid at [Location 1].
-     Another copy of the letter from an Investigator of the [Section 1] of the [Department 1] in [the Town 1 area], dated [in] November 2016.
Tribunal Hearing
On 13 January the Tribunal invited the applicant to a hearing scheduled for 4 May 2023. On 19 January 2023 the applicant responded in writing that he would attend the scheduled hearing.
On 1 May 2023 the applicant’s authorised recipient, Mr Jehred Abuy, wrote to the Tribunal stating that the applicant’s [child] had recently tested positive for COVID and, as [they] lived in the same household as the applicant, the applicant requested the scheduled hearing be postponed. Mr Abuy attached the applicant’s [child’s] covid testing results confirming [the] positive result.
The Tribunal agreed to postpone the hearing and sent an invitation for the applicant to attend a hearing on 17 May 2023. On 5 May 2023 the applicant responded in writing that he would attend the scheduled hearing.
On 8 May 2023 the applicant’s authorised recipient, Mr Jehred Abuy, wrote to the Tribunal stating that the applicant had tested positive for COVID on 5 May 2023 and requested the hearing be further postponed.
On 12 May 2023 the Tribunal wrote to the applicant advising him it had decided not to further postpone the hearing.
On 15 May 2023 a Tribunal officer telephoned the applicant to ask him about his health. The applicant informed the Tribunal officer that he had tested negative to COVID on 9 or 10 May, he still had a cough but was otherwise well enough to attend the hearing on 17 May 2023.

The applicant appeared before the Tribunal on 17 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 confirmed he was well and could participate in the hearing.
b.Jehred Abuy is the applicant’s agent in the Philippines. He is the applicant’s representative regarding their documents. [Details deleted.] He prepares the documents and submits their papers. They do not pay Jehred but they send him allowances.
c.The applicant confirmed that all the information in his Protection visa application is correct.
d.The applicant worked as an [officer] for the [Section 1] of [Authority 1] [named] section for almost 23 years. He would investigate robbery, rape, and illegal activity. There was much illegal activity. He would arrest people and file charges against them in the criminal court. He would prepare all the documents and then go to the court in Angeles city which had jurisdiction. He would turn the person over to be jailed.
e.The applicant’s [adult] children, [and specified family members] are living in the Philippines. His children live with the applicant’s ex-wife in Pampanga. The applicant is in contact with them and they are okay. They just have financial problems. They are studying. The eldest wants to find work. The applicant is financially supporting them. He works in a [business] in Australia.
f.The applicant received the police blotter reports he submitted with his application, from colleagues by email. The applicant cannot remember which colleagues sent these to him. The Tribunal asked him if he still has the email and he responded maybe, he would check. The Tribunal asked the applicant to submit a copy of the email if he located it and he agreed to do this.
g.The Tribunal asked the applicant if he has the threatening letter from the Chinese people and he responded that he did not. He acknowledged it is important but he is not sure if he has it. It was just a piece of paper and the message was written in the Tagalog language. The Tribunal asked why Chinese people would write in the Tagalog language and he responded it was probably written by a Filipino friend. The letter said ‘don’t witness on the case. Don’t be a witness on our case or else something bad will happen to you’, in Tagalog.
h.The Tribunal put to the applicant that there was no indication that the threatening letter related to 2016 [Location 1] raid incident. The applicant responded that when the letter was handed to the guard on duty, some Philippines and Chinese nationals were looking for him and left the letter. That is why the applicant thinks it is about the November 2016 raid.
i.The Tribunal put to the applicant that the raid was a long time ago and nothing had happened to him subsequently while he was in the Philippines. The applicant responded because maybe that’s the time he was going to be a witness. The Tribunal asked him how he was going to be a witness and he responded that he participated in the raid and he was the one with the [Department 2], confiscating the computers for online gambling.
j.The Tribunal asked the applicant if he had been asked to be a witness by the court, police or the [Department 2]. The applicant responded that when he left the Philippines there was no trial in court. He has not been asked to give evidence.
k.The letter was the only threat he received.
l.No one in the applicant’s family has been threatened. The applicant has never been harmed and no one in his family has been harmed.
m.The applicant retired in April 2018. The Tribunal asked the applicant why the crime syndicate would care about him if he had retired. The applicant responded that they will subpoena him when the case is proposed. His name appears on the [Department 2] confiscation report. The applicant signed it. The Tribunal put to the applicant that several other officers also signed the report and asked if any of them had also been threatened. The applicant responded that he did not know and some are retired. The Tribunal asked the applicant if he had asked any of the other officers if they had been threatened too and he responded he did not, because that may make them fear.
n.There has not been a trial and nothing has happened. There was a senate hearing, but no trial yet. He thinks there will be a trial as charges were filed. The applicant has not checked this even though it is important. He did not check because if a subpoena goes to his former office he will be informed. There has been nothing to date.
o.The applicant did not give a written statement about the raid to anyone in the Philippines.
p.The applicant has not heard of anyone else involved in the raid being harmed. A lot of officers were involved in the raid. There were [Department 2] officers plus three or four from the applicant’s office, and maybe some uniformed personnel. There was maybe more than 15 officers involved. The applicant does not know if any of them were threatened.
q.The video he submitted a link for was about another raid in [Location 1], not the raid the applicant participated in. There was another raid by [Authority 1] and PNP personnel. The applicant did not participate in that raid because it happened in the morning and the applicant was working on the graveyard shifts. The Tribunal put to the applicant that the incident report he submitted stated the operation the applicant was involved in commenced at 9 pm. The applicant responded okay that was his shift, he was not on the graveyard shift.
r.After the raid the applicant participated in there was another illegal gambling raid at [Location 1]. The agencies raided all the possible buildings and villas and arrested more than 1,000 people. This occurred about three to four hours after the applicant’s raid. He can’t recall, the big raid occurred maybe months later.
s.The Tribunal put to the applicant that some available country information indicated that the large raid, with over 1,000 people arrested, occurred and ended on the morning of [specified days in] November, not the evening until [the next day in] November. There was also no mention of [Authority 1] involvement in the raid. The Tribunal put to the applicant that there was other information stating that the preliminary raid on [Address 1], took place on [an earlier day in] November just prior to the larger operation. The applicant responded that he knows it was [the specific day in] November when they did the raid. When the raid happened there are so many villas and perhaps he forgot the number of the particular villa. They confiscated all the evidence in the villa and the applicant just relieved the officer on that day. They loaded the equipment the next morning after taking it to their office. The applicant is taking medication and can’t remember when things happened.
t.The Tribunal asked the applicant why he would be threatened if many officers were involved in the raids. The applicant responded because some Chinese guy is looking for him with a Filipino. The Tribunal asked why him and he responded maybe because he was senior in length of years amongst the [Authority 1] officers involved in the raid.
u.The Tribunal asked the applicant why he was not threatened while he was living in the Philippines. He responded that they received threats but did not take them seriously. The threat was that something bad will happen to him. The applicant has no idea who made the threat. The threat was by landline phone while the applicant was still working for [Authority 1]. It was a long time ago, before the raids. It was in Philippines’ language. It was just the one threat.
v.Someone may want to harm the applicant in the Philippines because the case is not finished yet. The applicant will not take the risk.
w.There is nothing else the applicant fears in the Philippines. It is purely the threat.
x.The Tribunal put to the applicant that there are some reports of prosecutions ensuing from the raids. The applicant responded that the system in the Philippines is very corrupt and people don’t know who their friends are, especially in politics or service. Up until now the state is still not good, that is why the Philippines are not progressing, because of the corrupt practices by politicians. Under Duterte drugs went down and drug addicts were arrested and put in jail. A former PNP chief Mugalo exposed high ranking officials involved in drugs. They only declared a little bit of what they confiscated. This did not cause the applicant any problem.
y.The applicant’s father passed away in February 2022 but the applicant did not have a chance to go back to the Philippines.
The Tribunal has not received any post-hearing submissions or further written evidence from the applicant.
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.
A Philippines newspaper article[1] published on 16 December 2016 states:
[Details deleted]
[1] [Source deleted]
Another newspaper article[2] published on [date] states:
[Details deleted]
[2] [Source deleted]
[Details deleted][3] [Details deleted][4]
[3] [Source deleted]
[4] [Source deleted]
The [Location 1] venue was reportedly shut down as a result of the raid in early December 2016 with police being posted at the [venue] to prevent entry.[5]
[5] [Source deleted]
Other articles refer to [further] investigations arising out of the raid. For example:
[Details deleted] [6]
[6] [Source deleted]
[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.
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.[11]
Participation in November 2016 Raid
[11] 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 evidence regarding the timing of the raid he claimed to have participated in is somewhat inconsistent with available media reports. However it is just a matter of a day or two and the event occurred almost seven years ago, therefore the Tribunal does not make adverse findings regarding the inconsistency.
The applicant seems to have initially exaggerated his role in the raid describing himself as leading the operation. However he clarified in subsequent evidence that he and the other [Authority 1] officers were mainly in a support role to the [Department 2], assisting to confiscate and collect the computer equipment in the villa and issue the paperwork.
The Tribunal also notes that although the 2016 Incident Report is dated [the day in] November 2016 it refers to events occurring on [a later day]. There is some suggestion in available country information[12] that the authorities were trying to backdate some documents due to the alleged late issue of the required Search Warrant. This, or mere clerical error, may account for the date anomaly. Therefore the Tribunal does not consider it adversely in light of the largely persuasive evidence given by the applicant, regarding his participation in the raid.
[12] See e.g. CNN Philippines, 2017, ‘Chinese Nationals file counter-affidavit, claim they are victims of illegal recruitment’, 13 January.
The applicant was otherwise able to give a reasonably consistent and detailed description of the raid and his involvement in it. The information he provided largely accords with the reports regarding the preliminary raid on [Address 1] at [Location 1]. The Tribunal therefore accepts that the applicant and a few of his [Authority 1] security colleagues assisted [Department 2] officers in their raid of a villa at [Location 1] in late November 2016, as part of an operation targeting illegal on-line gambling [there].
Threat in 2018
The applicant claims that in September 2018, following his retirement from [Authority 1], he went to his former workplace and was told Chinese nationals had been asking for him and had left a letter for him. He obtained the letter and it threatened him to stay away from Chinese business.
The Tribunal found the applicant’s evidence regarding the threat vague and implausible. He was not able to state who sent the 2018 incident report to him in Australia. When asked about this he stated the report was emailed to him and he would try to locate the email and submit a copy to the Tribunal. The Tribunal has not received any such information from the applicant and no explanation from him why he was not able to locate the email. He also claimed to have not kept the letter itself but was unable to explain why, despite acknowledging its importance. It is also concerning that there is no reference in the incident report to the applicant showing the [Department 1] investigator who wrote the incident report the letter the applicant claimed to have just received, or of a copy of the letter being attached to the incident report as part of it.
The Tribunal notes that the applicant remained in the Philippines for a further month and a half, until [November] 2018, despite claiming to be fearful and to have eventually sought protection in Australia because of the threat in the letter.
Throughout the application the applicant mentioned only “Chinese” people being responsible for the threat letter and visit to the applicant’s workplace in June 2018 until the Tribunal asked him why the letter was in the Tagalog language. From then on the applicant changed his evidence to refer to the Chinese plus a Filipino being behind the threat. The Tribunal gained the impression the applicant was simply inventing things to address concerns about his evidence, as they arose.

There is also no apparent reason why people would threaten the applicant at his workplace in June 2018. He had not received any adverse interest from anyone prior to this time. He gave evidence in hearing of one threat he had received by phone, which he considered a ‘prank’ call, but this occurred prior to the raid. The applicant also had retired some months prior to June 2018 and had been in Australia for six months from February until late August 2018. There is no indication he had said or done anything since the November 2016 [Location 1] raid to bring him to the adverse interest of any of the people involved in the illegal online gambling operations.
The applicant’s suggestion that the threat was due to his participation in the November 2016 raid at [Location 1] makes little sense. He was one of many personnel involved in the raids and his role was limited to the smaller preliminary raid, led by [Department 2] officers. There is no perceivable reason why he would be singled out, amongst all the other officers, most more heavily involved and at higher levels. He was also only one of four [Authority 1] investigators who participated on the raid. He presented no evidence that any of them had similarly been threatened and showed no real interest in knowing this. As put to the applicant it would be highly relevant to his evaluation of the risk to him, to know if others had been similarly threatened. The Tribunal notes that the investigator who wrote the 2018 incident report was also one of the four officers who had participated in the November 2016 raid with the applicant. So it lacks sense that the applicant would not ask him at the time if he had also been threatened.
As put to the applicant country information indicates that some official investigations ensued from the November 2016 raids. These do not appear to have carried on past 2017. There is therefore no reason for the applicant to be singled out for threat in June 2018.
The applicant was not able to identify any trial arising from the November 2016 [Location 1] raids that was occurring or would occur or did occur which would require him to give evidence as a witness. Further, the evidence he did have would be of very minimal importance compared to evidence available from other personnel more involved in the raid. It was also largely encapsulated in the 2016 Incident Report he and the other officers signed thereby negating any requirement for him, and he alone, to personally be a witness. The applicant confirmed to the Tribunal that he was never required to make a written statement at any time regarding the November 2016 [Location 1] raid, apart from the joint Incident Report he and the other officers signed on or about [the day in] November 2016.
The Tribunal does not accept there was a threatening letter given to the applicant by one of the guards at his former workplace. The Tribunal considers that the 2018 Incident Report is not a genuine document and that it is not based upon a genuine complaint by the applicant. In view of the above the Tribunal does not find it credible that Chinese people with or without a Filipino person, went to the applicant’s workplace in about June 2018 to ask about him and to leave a threatening letter.
Fear of Harm in the Philippines
The Tribunal has accepted that in November 2016 the applicant was participated in a raid on an illegal on-line gambling operation at [Location 1] in his role as [a police] officer with [Authority 1] in the [Town 1 area].
There is no accepted evidence that anything adverse happened to the applicant as a result of his participation in the raid. There has been no action taken against him or his family. The Tribunal also does not accept that the applicant has received any threats in the Philippines. The applicant himself did nothing to make the Chinses people or anyone else think he was interfering in their interests in any way or at any level, subsequent to the raid. There is therefore no reason why anyone would want to harm the applicant subsequently. The applicant has now retired and no longer works as an officer with [Authority 1]. There is no indication he will be required to do anything that would be considered adverse to the interests of those involved in the illegal online gambling operations. There is no indication that any further or incomplete trial or proceedings will commence or is commencing against the people involved in the illegal online gambling operations, which were the subject of the November 2016 raids.
The Tribunal therefore does not accept there is a real chance of serious or significant harm to the applicant in the Philippines arising from his involvement in the November 2016 raid on an illegal online gambling operation at [Location 1].
The applicant has not raised any other claims for protection and none arise on the information before the Tribunal. The Tribunal is therefore not satisfied there is a real chance the applicant will face serious or significant harm from anyone if he returns to the Philippines.
The Tribunal is 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 similarly not satisfied there is a real risk the applicant will be subjected to significant harm on return 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).
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 3530

1 August 2023

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Immigration

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Procedural Fairness

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