2201264 (Refugee)

[2023] AATA 2511

2201264 (Refugee) [2023] AATA 2511 (25 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2201264

COUNTRY OF REFERENCE:                   Philippines

MEMBER:David McCulloch

DATE:25 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 25 May 2023 at 4:02pm

CATCHWORDS
REFUGEE – protection visa – Philippines – Federal Circuit and Family Court remittal – political opinion – member of indigenous rights/political organisation – harassed, abused and detained without charge – relative killed in protest – continued threats while in Australia – credibility – applied after temporary work visa refused – inconsistent claims and evidence – timing and extent of political activities – returns from third countries and Australia – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 Immigration and Border Protection on 12 April 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Philippines, applied for the visas on 26 April 2016. The applicant attended an interview with a delegate of the Minister on 8 December 2016. The delegate refused to grant the visas.

3. [The applicant] (‘the applicant’) is the primary visa applicant, [the second applicant] (the applicant’s wife) is the second-named applicant and [the third applicant] (the applicant’s child) is the third-named applicant. 

4. The Tribunal affirmed the delegate’s decision on 5 February 2021. That decision was set aside by the Federal Circuit and Family Court of Australia (‘the Court’) on 6 December 2021. The Court held that the Tribunal failed to consider the applicant’s claim regarding the death of a brother and accordingly fell into jurisdictional error. The applicant did not provide any evidence in support of the claim relating to the death of his brother. However, the Court held that in circumstances where a claim is raised by the applicant in their protection visa application, it needs to be addressed by the Tribunal.

5. The matter is now before the Tribunal pursuant to an order of the Court.

6. The applicants appeared before the Tribunal on 28 March 2022 at 9.30am (AWST) to give evidence and present arguments. The applicants appeared in person. The hearing was attended by the applicant’s representative who appeared by video using Microsoft Teams.

7. The Tribunal conducted a second hearing which was held on 18 May 2022 at 9.30am (AWST). The applicants and the representative appeared before the Tribunal by video using Microsoft Teams.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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.

13. Sections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouse and dependent children.

14. The Tribunal is satisfied on the evidence that the applicant’s wife is the spouse of the applicant and the applicant’s child is the dependent child of the applicant and therefore are members of the same family unit as the applicant.

    Mandatory considerations

15. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

16. The issue in this case is the credibility of the applicants and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

17. The applicant’s migration history is cited from the delegate’s Decision Record and applicant’s Movement Record. The applicant entered Australia [in] July 2013 on a Student visa (Subclass 572) which was valid until 26 August 2015. On [Day 1] October 2014 the applicant returned to the Philippines for a funeral, returning to Australia on [Day 2] October 2014. The applicant lodged a Temporary work visa (Subclass 457) on 29 July 2015. The Temporary work visa (Subclass 457) was refused on 31 March 2016. The applicant lodged the protection visa application on 26 April 2016.

18. The following information is apparent from the protection visa application form. The applicant was born on [Date] in [City 1], Mindanao, Philippines. The applicant is of Lumad ethnicity, whose religion is Roman Catholic. The applicant speaks, reads, and writes Bisaya, Ilonggo and English. The applicant has been in a relationship with his wife since [Year] and were married in the Philippines in [Year]. The applicant’s father and brother are deceased. The applicant’s mother and sister reside in the Philippines and he is not in contact with them.  From [Birth] to [Year], the applicant lived in North Cotabato in the Philippines. From [Year] to 2007, he lived in Manila before returning to North Cotabato in 2008. The applicant lived in [Country 1] from June 2009 to November 2011 for work. The applicant then moved back to North Cotabato in December 2011 and remained there until June 2013 prior to moving to Australia. The applicant completed primary school in [City 1], then completed secondary school and a Bachelor in [Subject 1] in Manila. Since moving to Australia, the applicant has completed a Diploma in [Subject 2], and a Certificate III and Certificate IV in [Subject 3]. The applicant has also completed a Certificate III in [Subject 4]. The applicant was employed as [an Occupation 1] in Manila from 2006 to 2009. From June 2009 to November 2011, the applicant worked in [Country 1] as [an Occupation 1]. From December 2011 to July 2013 he indicates that he was not employed but assisted his family with farming in the Philippines. The applicant was employed as [an Occupation 2] from August 2013 to June 2014. From July 2017 to present, the applicant has been employed as [an Occupation 3].

19. The applicant’s wife’s migration history is cited from her protection application and Movement Record. She arrived in Australia [in] July 2013 on a Student (Subclass 572) visa. She departed Australia [Day 1] October 2014 to go to the Philippines for her father-in-law’s funeral and returned on [Day 2] October 2014. The applicant’s wife departed Australia again [in] September 2015 to return to the Philippines for her father’s funeral and returned to Australia [in] November 2015. She has remained in Australia since [November] 2015.

20. The following information is apparent from the applicant’s wife’s protection application form. The applicant’s wife was born on [Date] in [City 2], South Cotabato, the Philippines. She is a Filipino citizen. Her religion is Catholic. The applicant’s wife speaks, reads, and writes Bisaya, Ilonggo and English. The applicant’s wife has been in a relationship with the applicant since [Year] and were married in the Philippines in [Year]. The applicant’s wife answered ‘not applicable’ to the section in her protection application where it asks to list family members. The applicant’s wife lived in [City 2], South Cotabato from [Year] to 2011. From 2011 to 2013, she lived in North Cotabato. The applicant’s wife completed primary school at [Elementary School] from [Year] to [Year]. From [Year] to [Year] she completed secondary school at [High School] and she then completed a Bachelor of [Subject] in [Specialisation] at [University] in the Philippines. From 2010 to 2013 the applicant’s wife was employed as [an Occupation 4] in [City 2]. From November 2013 to July 2015, she was employed as [an Occupation 5] at [Workplace] in Australia.

21. On her protection application, the applicant’s wife did not answer any of the questions for her reasons for claiming protection. The applicant’s wife did not state whether she was relying on her own or her husband’s claims for protection. In her application, the applicant’s wife submitted no written claims for protection.

22. The applicant provides the following details in the protection visa application form in the section asking his reasons for claiming protection. The applicant indicates that he left the Philippines to study in Australia. He indicates that if he returns to the Philippines he will be killed or persecuted because on 1 April 2016 his [Relative], [Mr A], a member of the Arakan Peasant Progressive Organisation (APPO) attended a protest in North Cotabato and was shot and killed by police. The applicant indicates that he was targeted and persecuted for his involvement with the APPO.  The applicant indicates that if he returns to the Philippines he will be physically and emotionally harmed. He does not think authorities would protect him because they have their own interest. The applicant cannot relocate for his safety in the Philippines because he will be located anywhere. The applicant indicates that he will provide further information.

23. The applicant provided a handwritten statement to the Department from which the Tribunal notes as follows. The summary has been prepared by the Tribunal from the handwritten version as accurately as possible but noting some difficulties in interpreting handwriting.

24. The applicant came to Australia to study. The applicant was a student leader at university. In [Year] the applicant joined the Kilusang Magbubukid ng Pilipinas (KMP) and the APPO – North Cotabato chapter. These assist indigenous people, farmers, youth and women. The applicant’s aim is to build a good society for these people. The applicant refers to harassment and abuse by military and policemen. Sometimes he is put into jail without any case against him. He has faced harassment and even torture. The applicant indicates that on 1 April 2016 his [Relative], [Mr A], a member of the APPO was killed in a mass rally in North Cotabato. The applicant refers to the APPO leader of the North Cotabato chapter being killed in August 2015.

25. The applicant refers to corruption, drugs and poverty and major problems in the Philippines. The applicant refers to the change of government in 2016 and the actions by the government including in terms of action to eliminate drugs and inappropriate activity directed towards this end. Reference is made to extrajudicial killings.  The applicant refers to an attack on the southern part of the Philippines connected with ISIS (details not legible). Reference is made to the potential for more terrorist bombings and the killing of innocent people. The applicant refers to a psychological assessment for issues faced by him. Results are awaited which will be sent.

26. The applicant refers to various attacks by authorities on protesters in Cotabato.

27. The applicant provided a further handwritten statement to the Tribunal dated 4 January 2021. The applicant outlines the situation of the applicants, his family in Australia and the life they are making, including seeking to be provided funding under the National Disability Insurance Scheme (NDIS). Reference is made to difficulties as a result of the COVID-19 pandemic.

28. Reference is also made to the Philippines being a third world country with a list of social problems. Reference is made to the applicant’s involvement with the political organisation KMP in the Philippines (a peasant movement). The applicant was [an Organisational role] for his chapter. The applicant refers to being caught by police in a mass rally in Mindanao, being put in handcuffs and detained for 24 hours during which time the applicant suffered abuse, physical harm and torture. As an activist the applicant suffered tremendous abuse from police and military. The applicant was hit with blunt objects on his body. There are details of injuries listed on his neck, his right temple area, right forearm, right thigh and left leg. The applicant cannot count how many punches he suffered and in the use of cigarettes to burn various parts of his skin including sensitive parts. It was inhuman and unjust. The applicant refers to a number of instances of harm by authorities in Cotabato including in protests.

29. The applicant’s wife provided an undated written statement to the Tribunal to support the applicant’s claims for protection. It refers to the circumstances of the applicants in Australia. The statement refers to the problems faced due to his political involvement in peasant organisations. Reference is made to them living in the southern part of the Philippines surrounded by Muslim people and ongoing internal conflicts – wars, bombing and the ambush of innocent people. Reference is made to difficulties under the administration of President Duterte from 2016. Reference is made to the Philippines being disaster affected and the incidence of violent crime. Reference is made to difficulties as a result of the COVID-19 pandemic. Reference is made to difficulties in the healthcare system in the Philippines and the fact that their son has asthma.

30. The applicant provided the following statement to the Tribunal the day before the first hearing before the currently constituted Tribunal (not corrected for spelling or grammar):

    1.       My name is [the applicant], and I was born in [City 1], Maguindanao in the Island of Mindanao that is located in the Philippines. I first decided to leave Philippines and come to Australia because I intended on studying [Subject 4] at TAFE school in [City], Western Australia. My Student Visa was granted on 19th of July 2013, and I first arrived in Australia with my wife [in] July 2013.

    2.       When I was in College in Manila between [Year] and [Year], I became a member of a political group called the ‘Kilusang Magbukid ng Pilipinas’ (“KMP”). I first joined KMP when I was invited to an open forum held by the ‘League of the Filipino Student’ (“LFS”) when I was a 1st year student. The person who introduced me to the KMP was the Secretary General of the organization named [Mr B]. I was encouraged to join because, as a Lumad myself, I knew the oppression we faced and I was eager to help the Lumad cause.

    3.       Lumad people are the indigenous people of the Philippines who have been mistreated throughout history as well as to the present day by the government, and consequently the military. Due to the high number of Lumads in my community, I was particularly sympathetic to the cause and was often told of the many horror stories that the Lumad people had to go through on a regular basis. Lumad people have a right to their ancestral land which dates back for centuries. Due to the vast amounts of farmland that the Lumad own and operate, the military resorts to attempts at land grabbing and militarisation of these areas due to the commercial benefit of mining the land and extracting its minerals and other natural resources.

    4.       Due to the commercial benefit, the military is supported by many politicians and together a system is put in place that regularly targets Lumads and invades their land. It is common for some communities to have their land destroyed for all intents and purposes, and they are forced to evacuate due to conflicts arising from these mining and logging activities. Today many of the Lumad have sought safety and shelter in evacuation centres where they and other victims of war are crowded into small spaces that lack adequate sanitary conditions and food, and they endure constant harassment by local police including sexual harassment.

    5.       As a college student, I could see that the rotten system of government and its treatment towards the Lumads which was a great injustice. There was a clear inability for these Filipinos to live peacefully, who were no longer able to defend themselves against the infringement of their human rights as well as their rights to their farmland. During my period of college in Manilla I was actively involved in the KMP, attending regular protests and demonstrations aimed at criticising the government and their actions towards the Lumads. I was sometimes caught by the police during these events where I would be significantly mistreated and harmed. I was tortured on several occasions.

    6.       Some slogans that we would chant are: “hunong na sa pagpatay sa mga lumad. Hunongon ang bayolente batok sa kababayen-an ug kabataan. Ipaglaban ang atong katungod” which translates approximately to “Stop killing Luamd people! Stop violence against women and children. Fight for our rights. Another key slogan is “hustisya para sa mga lumad. Nga nakig-away batok sa among yuta. Nakig-away alang sa mga katungod nga gihikaw sa dugay nga panahon” which roughly translates as “Justice for natives. Fight for our land. Fight for rights [which have been] denied for a long time.

    7.       On one occasion in [Year], I was captured by police while protesting peacefully in front of [Venue 1]. The police forced us into one of their vehicles with the use of their guns. When we arrived at the police station, one of the police officers burnt me by pressing lit cigarettes all over my body. I still have burns and other wounds on my body due to the brutal police tactics inflicted against me.

    8.       I attended many rallies in Manilla between [Year] to [Year]. Some of the dates of the rallies I attended which I can recall include: yearly May 1 (Labour Day) protests between [Year]-[Year] in Mendila; protest in [Year] at [Venue 2] in Mandaluyong City; and [a] rally which occurred between [Dates] at Mandaluyong City (to name a few). During such rallies, it was common for me to be arrested, detained and subjected to various kind of harm, such as the cigarette burning of my skin as mentioned previously.

    9.       Between [Year]-2013, was living in [Region] and as such did not have much interaction with the authorities in ways where they could continue to harm me. I maintained involvement with the KMP at a distance, communicating to members and assisting with what I could while not in the Philippines. Upon my return to the Philippines, my level of political involvement naturally increased back to what it was when I was residing in the Philippines.

    10.      I would continue to receive threats to me and my family’s safety because of my political views and activism and my alignment with the dissenting KMP. I would receive these threats on my phone via calls and text messages. I received threats anonymously that would state that my family would be killed, tortured, and humiliated, and they threatened that they could easily hire someone to kill us. This began to truly frighten me as I felt as though my family’s lives were in imminent danger. This worry increased dramatically especially after the birth of my daughter on [Date].

    11.      These threats were anonymous; however, I strongly suspect that it was the local authorities sending these threats because of their ability to get my phone number (something they had access to). It also stands to reason that it was the Police under the directions of the government because people like me who are active participants in KMP events attract the negative treatment of the government because we protest and hold them accountable for their despicable actions. The government is extremely sensitive to all forms of political expression of the Lumad cause, as well as membership to the KMP, and thus frequently utilise violent methods to silence us.

    12.      The police and military harmed me because of my beliefs and principles; that I fight for my fellow farmers. My involvement with the KMP continued throughout my time in the Philippines up to and including when I left for Australia in 2013. When I arrived with my wife, I commenced my studies at [University]. Although I was still communicating with members of the KMP, for a period of time I lived free of threats against me back in the Philippines. Following the death of my [Relative] [Mr A] (discussed below), who shared the same political opinion and was approximately of the same level of political profile in the KMP party, my fear was accentuated.

    13.      In April 2016, while in Australia, I began to receive similar threats to what I had been receiving while in the Philippines through a friend named [Mr C]. He said for me to be careful, not to come home, and that he has received threats against myself and other prominent community members. Once I received this threat, I knew that the military, police or some other authority responsible for these threats would never stop in their attempts to inflict harm on me and my family. As stated earlier this was accelerated as my wife had given birth to my daughter in [Year], as well as the birth of my son [Number] years later in [Year]. My wife and kids do not deserve the treatment they could face upon returning to the Philippines, simply for being my family and my involvement in the KMP.

    14.      I treat these threats seriously as many people have been killed due to holding the same political views as me in wishing to see the Lumad people liberated. My own [Relative], [Mr A], was killed during a protest for the Kadapawan Massacre Hungry Farmers on April 1, 2016. The protest descended into violence after the Police’s treatment towards some protestors in which riots then ensured. Some protestors threw stones, and the police fired their guns in response, [Mr A] was hit in different parts of the body and killed instantly. He was not rushed to hospital because he was already dead. Losing my [Relative] to the violence was extremely traumatic for me, and I truly fear that upon return to the Philippines that I could face the same fate of being shot and killed by Police. It was after this incident and the threats that followed, that I decided I could not return home based on the harm I would face upon return to the Philippines.

    15.      If I was forced to return home to the Philippines, I would face this risk from the moment I arrive. I would not be able to seek help from any authorities as they are the ones committing these acts against people like me. Any attempts to seek help within Philippines would be ignored, and if anything, it would draw more attention to my political dissent which would only serve to put me in more immediate danger.

    16.      Active members of the KMP such as myself are harmed all over the Philippines as they are an opposition to the government which maintains complete control and power across all the Philippines. As a result, no parts of the country would be safe for me to return. My advocacy for the Lumad cause is dearly held and close to me and there is a real risk that my involvement in such a cause will lead to me experiencing the same fate as my [Relative].

    17.      They will always be in danger due to being my family. My family in the Philippines does not have the physical or financial means to protect us against the authorities, which has immense power and resources.

    18.      I conducted some research on possible was that I could seek protection from returning to the Philippines. During this research, I came across information related to a protection visa and based on this information I was relieved and felt that I was eligible to engage Australia’s protection obligations. I then proceeded to apply for this visa based on the facts I have provided in this statement.

    19.      I have already faced serious physical harm and harassment in the Philippines, and it is very likely that, if not killed, I will face these types of serious physical harm on a regular basis upon my return. I genuinely fear that I will suffer harm if I return to the Philippines. Although my degree of involvement in the Lumad and KMP movements is necessarily less, given the geographical separation. I continue to strongly hold my political views and I am still a member of KMP. My political convictions are fundamental to who I am. If I go back, holding and expression my views, there exists a substantial chance that I will be harmed, just like my [Relative].

1. The applicant provided the following material to the Department in support of his application for protection:

   • A news article dated 1 April 2016, titled “3 dead, 87 missing, 116 hurt as police fire on Cotabato human barricade” from InterAksyon.com. The article reports on the attacks in Cotabato.
   • A news article dated 18 August 2015, titled “Bayan reports possible murder of Arakan peasant leader” from InterAksyon.com. The article reports on the possible murder in the town of Arakan, Cotabato.
   • A news article dated 18 August 2015, titled “Peasant leader shot dead in North Cotabato”, by Inquirer Mindanao. The article reports on the murder of Joel Gulmatico, the former leader of the applicant’s political party.
   • A news article dated 17 August 2015, titled “Urgent appeal for Lumad Communities”. The appeal calls for assistance and donations in the Indigenous communities of the Philippines.
   • A news article published by Davao Today dated 19 April 2015, titled “Farmer, former village official who ‘resisted’ Army ops in North Cotabato shot dead”. The article reports on the death of Joel Gulmatico.
   • One image of a person with a wound on their face, presumed dead. Image undated.
   • A poster with the text “Stop the killings!” undated, source unknown.
   • A poster with the text “End Lumad Exploitation and killings! Let the Lumad speak for themselves! Corporation, state military left-wing insurgents keep out on Lumad ancestral land fight for autonomy! Don’t be use by left and right wing parties”. Undated, source unknown.
   • A poster with the text “Stop Lumad killings”, undated, source unknown.
   • A press release statement titled “Urgent Appeal for Lumad Communities”! released by International Organization for Self-Determination and Equality (IOSDE), dated 17 September 2015. The statement urges people with concerns for the well-being of humans to share information regarding the situation of the Indigenous Lumads in the Philippines to speak out.
   • A news article dated 19 August 2012, titled “Lumads in Arakan fear military-backed ‘pangawaw’”, published by DAVAO TODAY. The article reports on the killings of paramilitary leaders in Arakan Valley, Cotabato, Philippines.
   • A news article dated 8 April 2016, titled “Bullets, rice and human rights: What we know so far on the violent Kidapawan protest dispersal”. The article was published by CNN Philippines and timelines the events and protests in the Philippines. It reports on the use of firearms on protestors and the injuries obtained by police officers.
   • A news article dated 7 April 2016 published by CNN Philippines, written by Alex Ho. The article is titled “Santiago, Duterte call Kidapawan violence ‘inhuman’, ‘barbaric’”.
   • A news article dated 2 April 2016 published by CNN Philippines. The article is titled “DU gov’t under fire over violent Kidapawan dispersal”. The article reports on the protesters in Cotabato which left two farmers dead and many wounded.
   • An undated, handwritten letter written by the applicant. The letter sets out the applicant’s claims for protection and gives his insight into the political history and history of killings in the Philippines. The letter states that the applicant is seeking assistance for psychological and mental health issues as a result of the torture and harassment he experienced.
   • A bank statement dated 7 December 2020 from [Bank 1]. The statement is in the applicant’s name for the period of 1 June 2020 to 30 November 2020.
   • A tuition statement from [School] dated 19 February 2021 for a bill of $1,793. The tuition statement is addressed to the applicant and his wife.
   • A [Bank 2] transaction list from the period of 14 November 2020 to 4 January 2021 for the applicant and his wife.
   • A certified copy of the Birth Certificate from the Republic of the Philippines for the applicant.
   • A certified copy of the Certificate of Marriage for the applicant and his wife, registered in the Republic of the Philippines.
   • A certified copy of the Birth Certificate from the Republic of the Philippines for the applicant’s wife.
   • A certified copy of the applicant’s Western Australian driver’s licence.
   • A certified copy of the applicant’s daughter’s Birth Certificate, registered in Western Australia on [Date].
   • A handwritten letter by the applicant, dated 29 April 2016. The letter requests a right to work on his bridging visa due to his financial position and need for further income to support his family.
   • A handwritten letter by the applicant’s wife, dated 4 May 2016. The letter requests a right to work on her Bridging C visa due to her financial position and need for further income to support her family.
   • A handwritten letter by the applicant, dated 4 May 2016. The letter requests a right to work on his visa and to have his working rights condition waived, due to his need to pay bills, rent and other necessities.
   • Five images which show scars and wounds on the applicant.
   • A medical letter from [Dr C] of [Healthcare Centre], Western Australia, dated 23 December 2016. The medical letter provides [Dr C]’s medical opinion of the applicant’s scars and wounds, and finds that on clinical examination, the scars could be consistent with intentionally inflicted wounds.
   • A scanned copy of the applicant’s Australian Red Cross Blood Service donor card.
   • A scanned copy of a document, depicting a newspaper article from the Australian Red Cross. The document states that by donating blood, the applicant “saves three lives”.
   • Certificate of Membership for the applicant for KMP, dated [Date]. The certificate states that the applicant was [an Organisational role] for the organisation.
   • A screenshot of an email from the Australian Red Cross dated 13 December 2016. The email confirms that the applicant donated blood on 27 November 2016.

2. The applicant provided the following additional material to the Tribunal in support of his application for protection:

   • A news article published by Ferdinandh Cabrera, titled “13 people die in Maguindanao clash during law-enforcement op” dated 23 January 2021.
   • A news article published by ABS-CBN News titled “PH virus tally breaches 513,000 with over 1,900 new cases” dated 24 January 2021.
   • A news article published by ABS-CBN News titled “CHR seeks protection of students vs abuse on Int’l Day of Education” dated 24 January 2021. The article reports on the Commission on Human Rights (CHR) urging the government to protect students against sexual exploitation.
   • A news article published by Pia Ranada titled “Philippine travel ban covers 34 countries until January” dated 15 January 2021.
   • A letter confirming the applicant’s daughter’s enrolment to [Primary School], dated 22 September 2019.
   • An email from the Australian Red Cross dated 12 June 2019. The email states the applicant has made 12 blood donations in a 12-month period.
   • A letter confirming the applicant’s daughter’s enrolment to [Primary School], dated 21 March 2019.
   • A letter of employment from [Employer 1], dated 21 March 2019. The letter confirms the applicant’s wife has been an employee of the company since 3 October 2016.
   • A booking confirmation from the Australian Red Cross Blood Service for the applicant, confirming a blood donation appointment for 18 April 2019.
   • A booking confirmation from the Australian Red Cross Blood Service for the applicant, confirming a blood donation appointment for 28 March 2019.
   • A booking confirmation from the Australian Red Cross Blood Service for the applicant, confirming a blood donation appointment for 20 June 2019.
   • A booking confirmation from the Australian Red Cross Blood Service for the applicant, confirming a blood donation appointment for 21 February 2019.
   • A booking confirmation from the Australian Red Cross Blood Service for the applicant, confirming a blood donation appointment for 23 May 2019.
   • A booking confirmation from the Australian Red Cross Blood Service for the applicant, confirming a blood donation appointment for 31 January 2019.
   • A booking confirmation from the Australian Red Cross Blood Service for the applicant, confirming a blood donation appointment for 12 August 2018.
   • A booking confirmation from the Australian Red Cross Blood Service for the applicant, confirming a blood donation appointment for 15 July 2018.
   • A booking confirmation from the Australian Red Cross Blood Service for the applicant, confirming a blood donation appointment for 17 June 2018.
   • A booking confirmation from the Australian Red Cross Blood Service for the applicant, confirming a blood donation appointment for 20 May 2018.
   • A Tax Receipt from the Australian Government, addressed to the applicant, dated 14 September 2018. The receipt shows the applicant’s tax contributions for the financial period of 2017-2018.
   • An income tax account statement and notice of assessment from the Australian Taxation Office (the ATO) addressed to the applicant, issued 14 September 2018.
   • A notice of assessment from the ATO addressed to the applicant’s wife, issued 7 September 2018.
   • A Tax Receipt from the Australian Government, addressed to the applicant’s wife, dated 7 September 2018. The receipt shows the applicant’s wife’s tax contributions for the financial period of 2017-2018.
   • A notice of decision to register from AUSTRAC addressed to the applicant, dated 5 June 2018.
   • Record of Registration for Business Name from ASIC. Registration of the business name “[Business name]” registered on 1 February 2018.
   • A certified copy of the Birth Certificate for the applicant’s son, who is not on the application for review.
   • A record of blood and plasma donations by the applicant from the period of 27 November 2016 to 25 March 2018.
   • Country Information report on the Philippines from the European Country of Information Network, published on 22 February 2018.
   • The applicant’s PAYG summary from Bright Water for the period of 10 September 2015 to 30 June 2016.
   • The applicant’s wife’s PAYG summary from Specialist Diagnostic Services Pty Ltd for the period of 3 October 2016 to 30 June 2017.
   • The applicant’s PAYG summary from [Employer 2] for the period of 1 July 2016 to 30 June 2017.
   • The applicant’s wife’s 2015 tax return summary.
   • A notice of assessment for the year ending 30 June 2014, issued by the ATO to the applicant’s wife on 2 October 2014.
   • A PAYG statement issued to the applicant’s wife, for the pay period of 1 July 2014 to 16 June 2015.
   • A notice of assessment for the year ending 20 June 2014, issued to the applicant by the ATO on 25 September 2014. 
   • A 2015 tax return summary issued by the ATO to the applicant.
   • A report titled “Freedom in the World 2018 – Philippines” published by Refworld on 5 April 2018.
   • A letter of support for the applicant’s daughter, from [Early childhood education provider], dated 26 March 2018.
   • A Western Australia Vaccination Schedule for the applicant’s daughter. 
   • A news article (author unknown) titled “President of the Assembly of States Parties responds to announcement of withdrawal from the Rome Statute by the Philippines” dated 16 March 2018.
   • A news article published by The Guardian titled “Rodrigo Duterte to pull Philippines out of international criminal court” dated 15 March 2018. The article reports on Duterte withdrawing the Philippines from the International Criminal Court after it commenced an investigation into the war on drugs.
   • A letter of support from the Child and Parent Centre for the applicant and his daughter, dated 19 May 2017.
   • An undated letter of support from the Australian Red Cross for the applicant.
   • A letter of appreciation from the Australian Red Cross for the applicant, dated 27 October 2017.
   • 14 colour images depicting people wounded and severely injured.
   • A typed overview of information about the Philippines. The report provides information on safety, health, terrorism, kidnapping, crime, and scams.
   • DFAT Country Information Report – the Philippines (21 December 2018).
   • A news article published by Human Rights Watch on 5 June 2020. The article is titled “Philippines: New Anti-Terrorism Act Endangers Rights”. The article critiques the introduction of the new Act, stating it will ‘open the door to arbitrary arrests and long prison sentences for people … of organisations that have displeased the president’.
   • Philippines 2019 Human Rights Report published by the United States Department of State.
   • A news article published by Human Rights Watch on 7 November 2018. The article is titled “Another Rights Lawyer Murdered in the Philippines”.
   • A news article published by Human Rights Watch on 1 July 2019, titled “Three-year-old Girl Latest Philippines ‘Drug War’ Victim”.
   • A news article published by Human Rights Watch on 18 March 2019, titled “Philippines Pullout From ICC Won’t Block Justice for ‘Drug War’”.
   • A news article published by The Diplomat on 14 December 2020 titled “Philippines Celebrates Human Rights Day with Crackdown on Activists”. The article reports on the arrests of journalists and unionists in the Philippines.
   • A news article published by the Washington Post on 18 March 2019 titled “Philippines leaves International Criminal Court as Duterte probe is underway”.
   • A news article published by Human Rights Watch on 15 March 2019, titled “Philippine Lawyer Possible Victim of ‘Drug War’ Murder”.
   • A news article published by Human Rights Watch on 22 February 2019, titled “Philippines: Outspoken Senator Arbitrarily Detained Two Years”.
   • VERA FILES FACT SHEET: The dangers of red-tagging under the Anti-Terrorism Law. Report published on 8 December 2020.
   • A news article published by GMA News, dated 22 February 2018. The article is titled “AI: Duterte among leaders who ‘undermine rights of millions’”.
   • A news article published by People’s Coalition on Food Sovereignty, dated 17 April 2018. The article is titled “Free Sr. Pat now! Hands off food sovereignty advocates and people’s rights defenders”!
   • A photograph of the applicant and his family.
   • A health check for the applicant’s daughter, dated 28 October 2020.
   • An invoice addressed to the applicant and his wife from [City 2]. The invoice payment was due 9 October 2020.
   • A certificate of Registration of the applicant’s business, [Business name].
   • A bank statement from [Bank 1] issued on 13 January 2021 to the applicant. The statement is for the period of 1 July 2020 to 8 January 2021.
   • An electricity bill from [Provider] issued to the applicant on 22 December 2020.
   • An offer of employment for the applicant from [Employer 3], dated 8 December 2020.
   • A Certificate of Duty issued by the Government of Western Australia, Department of Finance, Office of State Revenue. The certificate was issued on 18 May 2017.
   • Offer of employment addressed to the applicant on 23 April 2020 issued by [Employer 4].
   • 22 payslips from [Employer 4], addressed to the applicant. The payslips are for the pay periods between 13 April 2020 to 20 December 2020.
   • 15 payslips from [Pathology services provider] addressed to the applicant’s wife.

3. The applicant’s representative provided a written submission to the Tribunal in advance of the first Tribunal hearing on remittal held on 28 March 2022. The delegate’s decision is referred to. It is submitted that the death of the applicant’s [Relative] in 2016 demonstrates the real risk to the applicant which is corroborated by independent evidence which is detailed later in the submission. It is submitted that the applicant continues to have deep political convictions regarding the Lumad cause and will continue to advocate for reform and change if returned. It is submitted that it is not open for the Tribunal to suggest that the applicant may mitigate the risk by concealing his political opinion. It is submitted that country information referred to indicates that the applicant would be currently at risk given the present situation in the Philippines in terms of suppression of relevant political activity. Independent evidence is detailed concerning background information of the KMP and the Indigenous Lumad People of the Philippines. It is submitted that KMP members of all levels face arrest, imprisonment and violence. Reference is made to ‘red-tagging’. The applicant’s political status is referred to as exacerbating the risk to him. He was [an Organisational role] and political speechwriter.

4. Submissions are made about a real risk of harm to the applicant which would constitute serious harm. The harm would be for the reason of the applicant’s political opinion. It is submitted that the risk to the applicant is increased as a result of him having a profile larger than an average rank-and-file KMP member. Submissions are made that the applicant has a subjective fear of harm. There is also an objective risk to the applicant which is justified by the facts. Reference is made to the fact that the applicant has already been beaten, detained, stripped naked and had lit cigarettes pressed into his body, including his private parts. The applicant’s [Relative] has been killed in public demonstrations because of his political opinion. What has happened in the past is a guide to the future. The applicant’s fear relates to all areas of the Philippines. Submissions are made in relation to the applicant also meeting the complementary protection criteria.

5. A further written submission was provided after the hearing on 28 March 2022. Aspects of the decision are referred to in the discussion and analysis below.

   INDEPENDENT INFORMATION

6. The 2021 DFAT report on the Philippines provides the following information (original emphasis removed):

   Recent History
   
   2.3 In 2016, Rodrigo Duterte was elected President. Duterte was the former Mayor of Davao and was known for his strong stance against crime in that city. He was also criticised for his human rights record in dealing with drug-related crime in Davao. Upon election, Duterte’s national government launched a campaign against illegal drugs, resulting in arrests and killings, including alleged extrajudicial killings.[1]
   
   […]

   [1] DFAT, Country Information Report – The Philippines, 23 August 2021, p. 7.

   National Human Rights Institution
   
   2.42 The Commission on Human Rights (CHR) is an independent office established in May 1987 under the Philippines Constitution. The Government provides the bulk of its funding. The Commission is comprised of a Chair and four members who must be natural-born citizens of the Philippines and a majority of whom must be members of the Philippine Bar. Commissioners are appointed by the President and serve seven-year terms. The current commissioners began their terms in 2015, under President Aquino.

   2.43 The CHR is a credible and independent institution, fully compliant with the Paris Principles (relating to the status of national human rights institutions) and carrying ‘A’ status (the highest status of national institutions accredited by the Global Alliance of National Human Rights Institutions). The CHR has monitoring and investigative capacity but no enforcement powers. The Commission is headquartered in Manila and maintains regional offices throughout the Philippines with the exception of the BARMM, which has its own Regional Human Rights Commission. However, the Commission does conduct ‘missions’ to the BARMM and considers that human rights in the region are part of its mandate.

   2.44 The CHR has been vocal in opposing the methods employed in the ‘war on drugs’, especially alleged extrajudicial killings, and the President has publicly differed with the Commission about the issue. In 2018 the President’s allies in the House of Representatives tried to reduce the Commission’s budget to 1,000 pesos (about AUD25), but the Senate prevented this measure.[2]
   
   […]

   [2] DFAT, Country Information Report – The Philippines, 23 August 2021, p. 12.

   Violence in the Southern Philippines
   
   2.50 The south of the country has a history of conflict related to Islamic separatism. In May 2017 militants affiliated with the Islamic State group took over parts of the southern city of Marawi. The Philippines National Army retook the city, which was badly damaged, after a siege that lasted five months. Fighting ended on 23 October 2017, having caused over 1,000 deaths, most of whom were fighters but also including a smaller number of civilians. According to the UNHCR, as of May 2021, about 17,000 families (approximately 87,230 individuals) remain displaced as a result of the Marawi siege, some 4,000 of whom are still living in transitory shelters. For many, COVID-19 has exacerbated their situation and delayed their return home.
   
   2.51 According to Conflict Alert, a monitoring organisation, more than 20,000 incidents of violence occurred in the Autonomous Region of Muslim Mindanao (ARMM) between 2011 and 2019. Violence spiked in 2016-17 as a result of general elections, the war in Marawi and the war on drugs. Since the end of the war in Marawi, violence has declined, although it remains at higher levels than pre-2016 (see Figure 2). The highest number of incidents related to violent extremism, followed by shadow economy issues, including the illegal drug trade, firearms and gambling. Robberies, gender-related violence and inter-clan violence were other common factors.[3]
   
   […]

   [3] DFAT, Country Information Report – The Philippines, 23 August 2021, p. 13.

   Armed Groups
   
   2.55 The following paragraphs are not an exhaustive list of Islamic armed groups in the south of the country. Many of these groups are prone to splits and factionalism, and new groups may quickly form or split away. There may not be ideological consistency within existing groups.

   2.56 Islamic State – East Asia (IS-EA), despite its name suggesting membership across Southeast Asia, is a loose coalition of ISIL-affiliated groups across the Philippines – it is commonly referred to as ISIL-Philippines. Under the leadership of Isnilon Hapilon, it was responsible for the 2017 Marawi siege. Its last known leader, Hatib Hajan Sawadjaan, was reported killed in mid-2020. Under the new Anti-Terrorism Act (see below), the government designated IS-EA as a terrorist group in December 2020.
   
   2.57 The Abu Sayyaf Group (ASG) was founded in 1991 as a separatist militant Islamist movement operating in Mindanao, primarily on the islands of Jolo and Basilan in the Sulu archipelago. It operates in various subgroups, some of which have pledged allegiance to ISIL. ASG is responsible for numerous highprofile kidnappings and beheadings, including of foreign nationals, and large-scale attacks. ASG was also involved in the Marawi siege in 2017. Hatib Hajan Sawadjaan was also an ASG leader and his nephew – Bunyamin Sawadjaan – was the mastermind behind the August 2020 Jolo bombings.
   
   2.58 The Moro National Liberation Front (MNLF) was formed in 1972 and was a leading organisation for Moro separatists for the next twenty years. While the MNLF signed a Final Peace Agreement with the national government on 2 September 1996, elements of the MNLF remain opposed. Different factions of the MNLF supported or opposed the Bangsamoro Organic Law process, described above.

   2.59 The Moro Islamic Liberation Front (MILF) formed as a breakaway from the MNLF in the late 1970s. After years of negotiation, the Government and the MILF signed the Comprehensive Peace Agreement on the Bangsamoro on 27 March 2014 providing for the transitional process from the ARMM to the BARMM described above. The MILF was involved in negotiations with the government regarding the Bangsamoro Organic Law and currently leads the BTA.

   2.60 The Bangsamoro Islamic Freedom Fighters (BIFF) is a group that formed in 2010 and continues to conduct attacks in Mindanao, sometimes in cooperation with other armed groups including the MILF and some ISIL-aligned elements, depending on the sub-groups’ allegiances. For example, in 2016, the BIFF and the MILF attacked a jail in Mindanao and aided the escape of 150 prisoners.[4]
   
   […]

   [4] DFAT, Country Information Report – The Philippines, 23 August 2021, pp. 14-15.

   Christians
   
   3.9 The Philippines is a majority Catholic country with significant numbers of non-Catholic Christians. The Catholic Church has a significant influence in daily life, although it is not as politically active as it was in the past, and there are signs its influence may be waning. While the Catholic Church is seen as conservative on many social issues such as contraception or LGBTI rights, many non-Catholic Christians, especially evangelical Christians, may be more conservative. Views and beliefs within the church are not necessarily uniform and Filipino society is generally conservative even on matters about which the churches do not take a stand.

   3.10 Some leaders of the Catholic Church have been outspoken against the Duterte government’s war on drugs (see Extrajudicial killings and the ‘War on Drugs’). On 30 January 2017, the Catholic Bishops’ Conference of the Philippines (CBCP) issued a public statement opposing the war on drugs. On 18 February 2017, the CBCP held a prayer rally in Manila where around 20,000 people gathered to register their concerns about killings related to the drug war. Religious leaders who criticise the government or its policies have faced harassment and violence (see Political Opinion).

   3.11 Former members of Iglesia ni Cristo have alleged senior church leaders are involved in serious corruption. Church figures have been accused of kidnapping and murder, and some former members have fled overseas. The church is politically influential. In February 2018, President Duterte named Iglesia ni Cristo Executive Minister Eduardo Manalo his Special Envoy for Overseas Filipino Concerns.

   3.12 DFAT assesses that, as followers of the majority religion, Catholics and other Christians do not face discrimination or violence on the basis of their faith. Non-Catholic Christians can practise their religion freely. Although the Church is influential, those who disagree with church teaching on social issues face a low risk of societal or official discrimination.[5]
   
   […]
   
   Political opinion (actual or imputed)
   
   3.26 The political party system in the Philippines is weak, with little ideological cohesion. Most Congress members and senators are elected on individual platforms. Since midterm elections in 2019, Duterte allies are in a majority in both houses of parliament. There is limited organised political opposition in Congress.

   [5] DFAT, Country Information Report – The Philippines, 23 August 2021, p. 17.

   3.27 Violence, including shooting attacks and bombings, is common during election periods as rival candidates seek to control their district and eliminate competitors. It can be difficult to distinguish politically motivated violence from general lawlessness. Family members and other bystanders have been injured or killed in this violence. Ahead of the May 2019 midterm elections, President Duterte released a ‘narcolist’ of 47 politicians he said were involved in illegal drugs, including mayors, vice mayors and congressmen. At least two have since been killed (see also Extrajudicial killings and the ‘War on Drugs’).

   3.28 Only a handful of senior politicians have openly criticised the Duterte administration, especially over its conduct of the war on drugs. Those who do face censure and harassment. Former human rights lawyer and critic of the government, Senator Leila de Lima, was arrested and jailed in February 2017. De Lima had led a Senate investigation into extrajudicial killings related to the war on drugs and Duterte’s alleged involvement in extrajudicial killings while he was Mayor of Davao. De Lima was charged with drug offences, charges that she described as a ‘punishment’ for investigating Duterte. Similarly, Vice President Leni Robredo, who has also openly criticised Duterte, was threatened with impeachment and vilified by pro-Duterte social media trolls in 2017. Senator Antonio Trillanes, another critic, was arrested in September 2018. Human rights groups allege his arrest was political (see Arbitrary Arrest and Detention). In July 2019, charges including sedition, cyber libel and libel were filed against opposition figures including Robredo, De Lima, Trillanes, Senator Risa Hontiveros, former senator Paolo Benigno Aquino IV, and six unsuccessful candidates who ran in the May mid-term elections. Four Catholic bishops and three priests who had criticised the government over human rights and the war on drugs were also charged. The charges were later dropped.

   3.29 DFAT assesses these cases demonstrate an intolerance of high-profile criticism of President Duterte, but are also related to political machinations. DFAT assesses prominent and mid-level politicians and religious leaders who oppose the government face a low risk of violence, especially around election periods. They face a moderate risk of harassment, including by online trolls. Barangay-level politicians face a low risk of violence, including from political rivals. DFAT is not aware of evidence that lower-profile supporters of political groups or personalities are targeted, although they may be caught up in violence against higher profile individuals.[6]
   
   […]

   [6] DFAT, Country Information Report – The Philippines, 23 August 2021, pp. 19-20.

   Red-tagging
   
   3.39 Membership, or alleged membership, of a far-left group is politically sensitive. ‘Red-tagging’, where a person is accused of being a communist without evidence, has been used against journalists, students, academics, lawyers, celebrities and human rights advocates. The practice predates the Duterte administration and was especially prevalent under the presidency of Gloria Arroyo (2001-2010), but it has reportedly worsened in recent years. The National Task Force to End Local Communist Armed Conflict (NTFELCAC) is the most active red-tagging agency, but others include the PNP, AFP and local government units.

   3.40 Red-tagged individuals are subject to harassment and can be at risk of extrajudicial killings. Rights groups say the problem is exacerbated by the President’s violent rhetoric and promises of impunity. For instance, in March 2021, President Duterte made a widely-publicised address urging police and soldiers to kill all communist rebels and return the bodies to their families, telling them: ‘Ignore human rights. That is my order. I will go to jail for you’. The following day, nine activists were killed in simultaneous raids by the PNP and AFP, and six people were arrested around Metro Manila. Local media reported the victims were linked to left-leaning activist group Karapatan and other labour organisations.

   3.41 DFAT assesses that civil society is active in the Philippines but human rights groups may be at a low risk of government interference or violence. They are at a moderate risk of harassment or threats, including online troll campaigns. The risk of violence for human rights defenders, including environmental and land activists, increases when they are working at the local (provincial) level or are associated with left-wing groups. The risk is particularly acute when a person has been red-tagged.[7]
   
   […]

   Extrajudicial Killings and the ‘War on Drugs’
   
   4.1 Extrajudicial killings occur against accused drug dealers and users, activists, judicial officials, local government leaders and journalists. Killings are often blamed on unidentified ‘vigilantes’, but may also involve uniformed police or soldiers. It is highly likely police – both current and former – are involved in extrajudicial killings.

   4.2 President Duterte was elected on a promise to eliminate the illegal drug trade. He has regularly called for people involved in illegal drugs to be killed and promised impunity for police and soldiers who kill. Under ‘Oplan Tokhang’ (Operation Knock and Plead), drug users and dealers are encouraged to ‘surrender’ to authorities or risked being killed. The government claimed in 2019 that 1.4 million drug users had surrendered to police since 2016. Police have a network of informants and have conducted campaigns in which they visit suspects’ houses and ‘encourage’ them to cease drug activities.

   4.3 Official figures from the Philippines Drug Enforcement Agency state 6,117 people were killed in antidrug operations between 1 July 2016 and 30 April 2021. Unofficial estimates put the death toll much higher. Tens of killings can occur in a single night. Many cases involve corpses holding handwritten notes that identify themselves as drug users, or telling others not to use drugs, which police attribute to vigilantes. Some victims show signs of being tortured.

   4.4 Police rarely investigate claims of extrajudicial killings. Despite the thousands of deaths, DFAT understands only one case – the murder of 17-year-old Kian delos Santos in 2017 – has resulted in the conviction of police officers. In December 2020, the International Criminal Court (ICC) concluded there was a reasonable basis to believe crimes against humanity, including murder, torture and other crimes, had been committed in the Philippines in connection with the war on drugs. The ICC’s chief prosecutor has since sought judicial approval to begin an investigation into the alleged crimes. Human Rights Watch claims the number of killings increased by 50 per cent during 2020’s COVID-19 lockdowns, although this is disputed.[8]

   [7] DFAT, Country Information Report – The Philippines, 23 August 2021, p. 21.

   [8] DFAT, Country Information Report – The Philippines, 23 August 2021, p. 26.

1. For the purpose of this decision the Tribunal made a research request of the Country of Origin Information Services Section (COISS) of the Department of Home Affairs. The following are the questions asked by the Tribunal and COISS’s response dated 21 March 2023:

   PLEASE PROVIDE DETAILS OF THE CURRENT STATUS OF THE KILUSANG MAGBUBUKID NG PILIPNAS (KPM) AND ARAKAN PEASANT PROGRESSIVE ORGANISATION (APPO) IN THE PHILIPPINES.

   Kilusang Magbubukid ng Pilipnas would appear to be an alternative spelling for the group Kilusang Magbubukid ng Pilipinas. Information was located in relation to the current activities of the Kilusang Magbubukid ng Pilipinas in the Philippines. There was limited specific information located in relation to the current status of the Arakan Peasant Progressive Organisation.

   Kilusang Magbubukid ng Pilipinas (KMP)

   In February 2023, Philippine online news website, Inquirer.net reported that ‘[f]armer group Kilusang Magbubukid ng Pilipinas (KMP)’ had ‘criticized the government’s shift towards the use of hybrid seeds over inbred seeds, saying that there were better ways for the country to achieve rice self-sufficiency’. The article refers to the comments of ‘Rafael Mariano, chairman of KMP and former secretary of the Department of Agrarian Reform’[9], who said ‘[u]nlike certified seeds, hybrid rice seeds cannot be propagated. Farmers will always have to buy. The company of hybrid seeds will be the ones making profit’.[10] President Ferdinand Marcos Jr, who was also the Department of Agriculture chief, had ‘struck the deal with private research firm SL Agritech Corporation (SLAC) to convert target areas with certified seeds to hybrid seeds’.[11]

   [9] For background information on the Kilusang Magbubukid ng Pilipinas (KMP), and on Rafael Mariano and his appointment to, then rejection from the Department of Agrarian Reform, please see: ‘The Mendiola Massacre: Decades on, Philippines Land Reform Remains Mired in Blood’, Haynes, O, The Diplomat, 22 January 2021, 20210125142253.

   [10] ‘Farmer group slams DA hybrid seed program’, Mangaluz, J, Inquirer.net, 18 February 2023, 20230320102131.

   [11] ‘Farmer group slams DA hybrid seed program’, Mangaluz, J, Inquirer.net, 18 February 2023, 20230320102131.

   Also in February 2023, the Philippine Daily Inquirer reported that ‘peasant groups Kilusang Magbubukid ng Pilipinas and Pamalakaya’ were among signatories to a unity statement issued by ‘the People’s Summit-People’s Agenda for Change, a coalition of over 40 labor, research and agriculture groups’. The statement warned that ‘the recently ratified Regional Comprehensive Economic Partnership (RCEP), the world’s largest trade agreement’, was ‘“disadvantageous and ill-fitting for the Philippine economy.”’[12]

   [12] ‘More groups seek RCEP junking’, Subingsubing, K, Philippine Daily Inquirer, 28 February 2023, 20230321111815.

   Another February 2023 article by the Philippine News Agency, ‘a web-based newswire service of the Philippine government’,[13] refers to Anakpawis, which it states is ‘a party-list group claiming to represent the marginalized sectors of workers, peasants, fisher folks, minorities, urban and rural poor, and an electoral wing of the Kilusang Mayo Uno (KMU) and the peasant group Kilusang Magbubukid ng Pilipinas (KMP)’. According to the article, Anakpawis ‘has long been identified by authorities as one of the legal fronts of the Communist Party of the Philippines (CPP) and recruitment ground for its armed wing, the New People's Army (NPA)’.[14] Please see the answer to Question 2 below for further information on Anakpawis.

   [13] ‘211 Anakpawis members, supporters pledge allegiance to govt’, Aquino, R, Philippine News Agency, 27 February 2023, 20230321113911.

   [14] ‘211 Anakpawis members, supporters pledge allegiance to gov’t’, Aquino, R, Philippine News Agency, 27 February 2023, 20230321113911.

   A January 2023 Inquirer.net article refers to the Kilusang Magbubukid ng Pilipinas (KMP) as ‘[a] peasant group’, with Danilo Ramos as the ‘KMP chair’.[15]

   [15] ‘Raise rampant smuggling of agri goods during China state visit, Marcos urged’, Pinlac, B, Inquirer.net, 3 January 2023, 20230320102947; See also: ‘Peasant groups score DA’s ‘default solution’ to agricultural problems’, Ramos, M S, Philippine Daily Inquirer, 25 December 2022, 20230319124328.

   Also in January 2023, the Kilusang Magbubukid ng Pilipinas (KMP) was one of several progressive groups that ‘marched to the Department of Agriculture (DA) office in Quezon City… to protest rising commodity prices and President Ferdinand “Bongbong” Marcos Jr.’s latest international trip’.[16]

   [16] ‘Progressive groups storm DA office over rising inflation, Marcos foreign trips’, Lalu, G P, Inquirer.net, 16 January 2023, 20230321123520.

   An Inquirer.net article from December 2022 refers to the killing of Joseph Jimenez, a peasant organiser of the Kilusang Magbubukid ng Pilipinas. The article states that Philippine human rights advocacy group, Karapatan, had ‘called on the Commission on Human Rights (CHR) to investigate the deaths of National Democratic Front of the Philippines (NDFP) consultant Ericson Acosta and peasant organizer Joseph Jimenez in Negros Occidental’. Karapatan said that Jimenez was a peasant organiser of the Kilusang Magbubukid ng Pilipinas and Acosta a peasant advocate, a writer and consultant of the NDFP. Acosta had been ‘in Kabankalan City to consult with farmers and peasants about their working conditions and military operations in the area’. According to Karapatan, Acosta and Jimenez had been ‘captured in Negros Occidental by personnel of the 94th and 47th Infantry Battalions of the Philippine Army… but were reported as killed in an encounter’.[17] Please see the answer to Question 3 below for further information in relation to the killings of Ericson Acosta and Joseph Jimenez.

   [17] ‘Karapatan to CHR: Probe deaths of NDF consultant, peasant organizer’, Mangaluz, J, Inquirer.net, 2 December 2022, 20230319115647.

   In November 2022, labour and farmers’ groups, including the Kilusang Magbubukid ng Pilipinas, were reported to be among groups involved in the launch of a new human rights group, the Citizens Rights Watch Network (CRWN). The CRWN said in a statement that ‘it would monitor the implementation of and work to repeal laws and policies that they said “undermine our peoples’ civil liberties and human rights” provided by the Constitution’. The KMP had ‘welcomed the creation of the network that they hope can help Filipinos maintain their democratic spaces amid “intensified political repression.”’[18]

   [18] ‘New human rights group vows focus on red-tagging’, Reyes, D, Philippine Daily Inquirer, 6 November 2022, 20221107123624.

   An October 2022 article on the Anakpawis Party-List website indicates that ‘members of Anakpawis Party-list’ had ‘joined peasants under the Kilusang Magbubukid ng Pilipinas (KMP), and their supporters’ at a protest in Manila ‘to continue demanding free distribution of land in the country, as the genuine measure for the emancipation of Filipino peasants from the bondage of landlessness and poverty’.[19] The protest was held ‘[o]n the 50th anniversary of the Presidential Decree 27 or the Marcos dictatorship sham land reform program’. According to the article, data from the Department of Agrarian Reform (DAR) in 2017 showed that only 11 per cent of the total agrarian reform beneficiaries ‘were able to complete amortization to the Landbank’. Comprehensive Agrarian Reform Program (CARP)[20] coverage had increased to 5.4 million hectares in 2016, but ‘this remained less than half of the total 12.6 million hectares of agricultural lands in the country, amid a rural population of 58 million living on 42% of the total lands’. Ariel Casilao, the Anakpawis Party-list National President and former lawmaker, said in a press statement that ‘this very character of the national population clearly demonstrated the urgency of genuine agrarian reform and poverty alleviation of rural-based or peasant families’. Casilao ‘urged the people to support the House Bill 1161 Genuine Agrarian Reform Bill or GARB, that proposed free distribution of land to poor peasants’.[21]

   [19] ‘Under Marcos father-and-son, Filipino peasants remain landless’, Anakpawis Party-List, 21 October 2022, 20230320082924.

   [20] For background information on the Comprehensive Agrarian Reform Program (CARP), please see: ‘The Mendiola Massacre: Decades on, Philippines Land Reform Remains Mired in Blood’, Haynes, O, The Diplomat, 22 January 2021, 20210125142253.

   [21] ‘Under Marcos father-and-son, Filipino peasants remain landless’, Anakpawis Party-List, 21 October 2022, 20230320082924; See also: ‘Half a century of Marcos’ land reform: Filipino peasants remain landless, enslaved by chronic economic crisis – Anakpawis’, Anakpawis Party-List, 20 October 2022, 20230320115304.

   A February 2022 Philippine Daily Inquirer article indicates that the Kilusang Magbubukid ng Pilipinas (KMP) was among groups that had ‘been openly described by the National Task Force to End Local Communist Armed Conflict (NTF-Elcac) as front organizations of the Communist Party of the Philippines (CPP) and the New People’s Army (NPA)’.[22]

   [22] ‘29 activists, 2 journalists implicated in Doc Naty case’, Panganiban, C V, Philippine Daily Inquirer, 24 February 2022, 20220224105705.

   In January 2022, the International Commission of Jurists reported that in August 2020, ‘Anakpawis Chairperson and Kilusang Magbubukid ng Pilipinas Deputy Secretary-General Randy Echanis was killed in his home in Quezon City, Metro Manila. The 72-year-old agrarian reform advocate and peace consultant had been undergoing medical treatment when police forces raided his home in the early hours of the morning’.[23] According to the ‘Philippine’s Commission on Human Rights, Echanis had been subjected to torture after examining his autopsy report: his body bore at least 15 wounds, with 12 of these on his back and incised, “meaning they were longer than they were deep, and were meant to ‘cause pain’”’. The impartiality of ‘findings of the Quezon City’s police force’s investigations’ had ‘been sharply criticized by Anakpawis and the National Union of Peoples Lawyers, with the police claiming that there was “no forcible entry” into Echanis’ home and that he may have been targeted for “allegedly having a tattoo affiliated with a criminal group”’.[24]

   [23] ‘Danger in Dissent: Counterterrorism and Human Rights in the Philippines’, Domino, J, International Commission of Jurists, January 2022, p.3, 20230319131939.

   [24] ‘Danger in Dissent: Counterterrorism and Human Rights in the Philippines’, Domino, J, International Commission of Jurists, January 2022, p.3, 20230319131939.

   Arakan Peasant Progressive Organisation (APPO)

   A January 2016 Gulf News article refers to ‘Joel Gulmatico, 58, chair of Arakan Peasant Progressive Organization (APO)’, being ‘shot dead on his motorcycle in Naje Village, Arakan, North Cotabato on August 18, 2015’. The article states that ‘Ernan Baldomero, vice chair of Hustisiya’, said Gulmatico ‘believed that the military unit in charge of development program in Naje was part of the military’s “Oplan Bayanihan,” accused of classifying members of people’s organization as leftists and anti-military’.[25] The Gulf News article was reporting on the ‘killings of more than 30 Filipino human rights activists’.[26]

   [25] ‘More than 30 activists killed in Philippines’, Dacanay, B M, Gulf News, 7 January 2016, 20230315164729; See also: ‘Peasant leader shot dead in North Cotabato’, Magbanua, W, Inquirer.net, 18 August 2015, 20230319091845.

   [26] ‘More than 30 activists killed in Philippines’, Dacanay, B M, Gulf News, 7 January 2016, 20230315164729.

   An August 2015 Human Rights Watch article, which refers to the Arakan Peasant Progressive Organisation as the Arakan Progressive Peasant Organization, states that Joel Gulmatico ‘was a peasant leader’ and ‘chairman of the Arakan Progressive Peasant Organization in North Cotabato province’. He died ‘after a gunman shot him near his house in Arakan town, in the southern Philippines’.[27] The article further states:

   [27] ‘Dispatches - Unending impunity in the Philippines’, Human Rights Watch, 19 August 2015, CXBD6A0DE12433.

   Gulmatico, the activist, was the latest victim in a string of killings of members of peasant organizations in the Philippines, which are often targeted by state forces for their alleged links to a Communist insurgency. A local councilman, he ran for village chairman in Naje in 2013 in North Cotabato, but lost because the military allegedly campaigned against him. According to colleagues, Gulmatico had received death threats related to his campaigning against mining projects in the area.[28] 

   [28] ‘Dispatches - Unending impunity in the Philippines’, Human Rights Watch, 19 August 2015, CXBD6A0DE12433.

   Human Rights Watch notes that the killing of Gulmatico and a newspaper publisher in the southern Philippines underscored ‘continuing impunity for extrajudicial killings in the Philippines, where hundreds of activists and journalists’ had been killed in the previous decade. ‘Government security forces’ were ‘primary suspects in many killings’.[29] The article also states that ‘[t]he Aquino administration’s record in ensuring accountability for the killers of activists and journalists’ had ‘been dismal. The killings of Gulmatico and Ybañez’ were ‘in part the legacy of this inaction’. Aquino was to leave ‘office in less than a year’, and if current impunity prevailed, he would ‘leave behind a sordid human rights record’.[30]

   [29] ‘Dispatches - Unending impunity in the Philippines’, Human Rights Watch, 19 August 2015, CXBD6A0DE12433.

   [30] ‘Dispatches - Unending impunity in the Philippines’, Human Rights Watch, 19 August 2015, CXBD6A0DE12433.

   Another more recent article dated 28 August 2020 on the website of the Philippines government’s Department of Agrarian Reform (DAR), also refers to the Arakan Progressive Peasant Organization. The article refers to ‘the distribution of 4,463.2122 hectares of reservation areas under the University of Southern Mindanao (USM) and the Cotabato Foundation College of Science and Technology (CFCST) in the municipalities of Arakan and President Roxas in the Province of Cotabato’[31]. The DAR Secretary John R. Castriciones, who represented President Rodrigo Duterte, is reported to have ‘led the distribution of certificates of land ownership award (CLOAs) to 3,035 farmer-beneficiaries, of which some were former supporters of insurgents who have resorted to armed struggle to convey their message and demands to the government’. The mountain town of Arakan was ‘a first-class municipality in the second district of Cotabato with some villages formerly infested by members of the New People’s Army (NPA)’. The reserved areas covered ‘six barangays of Arakan town, and one barangay in the adjacent town of President Roxas’. Farmers belonging to various organisations, including the ‘Arakan Progressive Peasant Organization’, were reportedly among those who would ‘benefit from the land’.[32]

   [31] ‘Former supporters of insurgent allies with government, receives reservation areas from DAR’, Department of Agrarian Reform (Philippines), 28 August 2020, 20230315175634; See also: ‘DAR to distribute 4,400 hectares Arakan reservation areas in North Cotabato’, Department of Agrarian Reform (Philippines), 25 August 2020, 20230315174515; ‘North Cotabato farmers to receive land titles today’, Villanueva, R, Philstar, 25 August 2020, 20230320155819.

   [32] ‘Former supporters of insurgent allies with government, receives reservation areas from DAR’, Department of Agrarian Reform (Philippines), 28 August 2020, 20230315175634; See also: ‘DAR to distribute 4,400 hectares Arakan reservation areas in North Cotabato’, Department of Agrarian Reform (Philippines), 25 August 2020, 20230315174515; ‘North Cotabato farmers to receive land titles today’, Villanueva, R, Philstar, 25 August 2020, 20230320155819.

   Earlier, in January 2017, landless farmers, including those belonging to the Arakan Progressive Peasant Organization, had appealed for the distribution of lands belonging to the University of Southern Mindanao (USM) and Cotabato Foundation College of Science and Technology (CFCST) in
   Arakan town in North Cotabato. Under ‘the provisions of Republic Act 6657, or the Comprehensive Agrarian Reform Law as amended by Republic Act 9007, or the CARP-Extension with Reform’, the farmers claimed that they were ‘entitled to own the lands under the government’s land transfer program’.[33]

   [33] ‘Farmers to DAR: Distribute reserved lands in North Cotabato’, Mayuga, J L, Business Mirror - Philippines, 16 January 2017, 20230319084759; See also: ‘North Cotabato farmers decry killings, harassment over land dispute’, Evangelista, P, Rappler, 29 March 2017, 20230321103029.

   PLEASE PROVIDE DETAILS OF ANY CURRENT POLITICAL ORGANISATIONS WITH SIMILAR AIMS, I.E. SUPPORTING INDIGENOUS AND FARMERS AND LAND OWNERS IN THE PHILIPPINES.

   There were reports found of political organisations that provide support to peasants and indigenous groups in the Philippines.

   Philippine human rights group Karapatan describes itself as ‘an alliance of individuals, groups and organizations working for the promotion and protection of human rights in the Philippines. Its founders and members have been at the forefront of the human rights struggle in the Philippines since the time of Marcos’ martial law regime’.[34] The Karapatan website indicates that the group’s beliefs include that ‘[h]uman rights advocacy is integral to the struggle of the peasants for land, the workers for national industrialization and decent living and working conditions, the women against exploitation and discrimination, the indigenous peoples for self-determination, the poor for basic social services, and the youth for access to education and other venues for growth and development’.[35]

   [34] ‘About Karapatan’, Karapatan, n.d., Accessed 20 March 2023, 20230320104326.

   [35] ‘About Karapatan’, Karapatan, n.d., Accessed 20 March 2023, 20230320104326.

   In August 2020, activist Zara Alvarez, who had chronicled the deaths of farmers on the island of Negros and raised human rights issues before the UN Human Rights Council, was shot dead.[36] Alvarez worked for Karapatan, which had been red-tagged, or accused of supporting the communist New People’s Army insurgency.[37] She was the 13th member of Karapatan to be killed since President Duterte came to power in 2016.[38]

   [36] ‘World Report 2021. Events of 2020’, Human Rights Watch, 13 January 2021, pp.542-543, 20210114072851; ‘Philippines: End deadly practice of red-tagging’, Amnesty International, 2 November 2020, 20201104103100; ‘The killings in the Philippines grow more brazen’, Aspinwall, N, The Interpreter, (Lowy Institute for International Policy), 25 August 2020, 20200901124704; ‘UN rights office ‘appalled’ at violence against human rights defenders in the Philippines’, UN News, 21 August 2020, 20200910070744; ‘Human rights leader killed in Philippine ‘war against dissent’’, Regencia, T, Aljazeera, 19 August 2020, 20200820101519.

   [37] ‘World Report 2021. Events of 2020’, Human Rights Watch, 13 January 2021, p.543, 20210114072851.

   [38] ‘Political dynasties and billionaires hijack ‘democratic’ party-list system in the Philippines’, Deduro, S, Global Voices, 21 November 2021, 20211214141419; ‘Philippines: Submission to the UN Human Rights Committee 136th Session’, Human Rights Watch, 12 September 2022, 20220914102927.

   An earlier November 2017 Agence France-Presse article refers to the killings of ‘Elisa Badayos, an officer for national rights organisation Karapatan, and Eleuterio Moises, a member of a local peasant group’, who had been ‘looking into accusations of land-grabbing by a mayor on the central island of Negros’.[39]

   [39] ‘Two human rights campaigners killed in Philippines’, Agence France Presse, 29 November 2017, 20230319170147.

   The Rural Missionaries of the Philippines (RMP) is reported to be ‘a missionary religious group that works with peasants, indigenous peoples, and other minority groups. It is a non-profit organization run primarily by nuns and other lay people involved in grassroots projects and programs with rural poor communities across the country’.[40] In August 2022, members of the RMP ‘were indicted for terror financing, or allegedly providing funds to the Communist Party of the Philippines-New People’s Army (CPP-NPA)’.[41] The group denied the allegations against them.[42] The Anti-Money Laundering Council had also previously frozen ‘bank accounts linked to RMP in 2019’. In January 2023, RMP members were among ten activists from three different groups acquitted by a Quezon City court of perjury, stemming from a complaint filed during the Duterte administration.[43]

   [40] ‘Quezon City court clears activists in Esperon’s perjury charge’, Gavilan, J, Rappler, 9 January 2023, 20230317160333.

   [41] ‘Quezon City court clears activists in Esperon’s perjury charge’, Gavilan, J, Rappler, 9 January 2023, 20230317160333.

   [42] ‘Philippines: Submission to the UN Human Rights Committee: 136th Session, 10 October – 4 November 2022’, Amnesty International, ASA 35/6026/2022, 13 September 2022, p.12, 20220914113938; For further information from sources in relation to the Rural Missionaries of the Philippines, please see the September 2022 Philippines Common Claims document. ‘The Philippines Common Claims September 2022’, Country of Origin Information Services Section (COISS), 16 September 2022, pp. 6 & 18, 20220916120840.

   [43] ‘Quezon City court clears activists in Esperon’s perjury charge’, Gavilan, J, Rappler, 9 January 2023, 20230317160333; See also: ‘QC court junks former NSA Esperon Jr.’s perjury case against 10 rights activists’, Hernaez, J, ABS-CBN News, 9 January 2023, 20230317172334.

   Another group is Anakpawis, which was reported by Philippine online news website, Rappler, to be a peasant group,[44] while an Aljazeera article refers to Anakpawis as an ‘urban poor organisation’.[45] A March 2022 Nikkei Asia article indicates that the Anakpawis party-list is ‘a progressive group of blue-collar Filipinos who say they stand up for the rights of the marginalized’.[46] As mentioned in the answer to Question 1 above, a February 2023 Philippine News Agency article refers to Anakpawis as ‘a party-list group claiming to represent the marginalized sectors of workers, peasants, fisher folks, minorities, urban and rural poor, and an electoral wing of the Kilusang Mayo Uno (KMU) and the peasant group Kilusang Magbubukid ng Pilipinas (KMP)’. According to the article, Anakpawis ‘has long been identified by authorities as one of the legal fronts of the Communist Party of the Philippines (CPP) and recruitment ground for its armed wing, the New People's Army (NPA)’.[47]

   [44] ‘Echanis case sparks new scrutiny of PH government probes into killings’, Buan, L, Rappler, 12 August 2020, 20200909191002.

   [45] ‘Human rights leader killed in Philippine ‘war against dissent’’, Regencia, T, Aljazeera, 19 August 2020, 20200820101519.

   [46] ‘Philippine activists warn of voting anomalies ahead of election’, Beltran, M, Nikkei Asia, 15 March 2022, 20220317134515.

   [47] ‘211 Anakpawis members, supporters pledge allegiance to gov’t’, Aquino, R, Philippine News Agency, 27 February 2023, 20230321113911.

   In August 2020, ‘Anakpawis Chairperson and Kilusang Magbubukid ng Pilipinas Deputy Secretary-General Randy Echanis was killed in his home in Quezon City, Metro Manila’.[48] Echanis was ‘an agrarian reform advocate and peace consultant’.[49] He was ‘one of the land rights activists’ who had ‘negotiated for a peace deal with the Duterte administration’.[50] More recently, in July 2022, Ma. Elena "Cha" Cortez Pampoza of Anakpawis, and Elgene "Leleng" Mungcal of Gabriela Women's party-list went missing’ and ‘were believed to have been taken by state agents’. Pampoza and Mungcal were ‘agrarian reform advocates who had closely worked with farmers’.[51]

   [48] ‘Danger in Dissent: Counterterrorism and Human Rights in the Philippines’, Domino, J, International Commission of Jurists, January 2022, p.3, 20230319131939.

   [49] ‘UN rights office ‘appalled’ at violence against human rights defenders in the Philippines’, UN News, 21 August 2020, 20200910070744.

   [50] ‘Human rights leader killed in Philippine ‘war against dissent’’, Regencia, T, Aljazeera, 19 August 2020, 20200820101519.

   [51] ‘SC grants ‘amparo’ to missing activists’ kin’, Baroña, F J C, The Manila Times, 10 December 2022, 20221212191027; See also: ‘Injustice persists amid security shake-up in the Philippines’, Agojo, K N M, East Asia Forum, 18 February 2023, 20230224121817.

   Also as mentioned in the answer to Question 1 above, an October 2022 article on the Anakpawis Party-List website indicates that ‘members of Anakpawis Party-list’ had ‘joined peasants under the Kilusang Magbubukid ng Pilipinas (KMP), and their supporters’ at a protest in Manila ‘to continue demanding free distribution of land in the country, as the genuine measure for the emancipation of Filipino peasants from the bondage of landlessness and poverty’.[52] The article refers to the comments of Ariel Casilao, the ‘Anakpawis Party-list National President and former lawmaker’, who ‘urged the people to support the House Bill 1161 Genuine Agrarian Reform Bill or GARB, that proposed free distribution of land to poor peasants’.[53]

   [52] ‘Under Marcos father-and-son, Filipino peasants remain landless’, Anakpawis Party-List, 21 October 2022, 20230320082924.

   [53] ‘Under Marcos father-and-son, Filipino peasants remain landless’, Anakpawis Party-List, 21 October 2022, 20230320082924; See also: ‘Half a century of Marcos’ land reform: Filipino peasants remain landless, enslaved by chronic economic crisis – Anakpawis’, Anakpawis Party-List, 20 October 2022, 20230320115304.

   A January 2023 Human Rights Watch article mentions ‘Katribu, a political party that advances Indigenous peoples’ rights’.[54] A June 2021 paper published by the Carnegie Endowment for International Peace refers to ‘[t]he Katribu Coalition, a national alliance of regional and provincial organizations for indigenous people’.[55]

   [54] ‘Philippines: Officials ‘Red-Tagging’ Indigenous Leaders, Activists’, Human Rights Watch, 26 January 2023, 20230127122836.

   [55] ‘How Duterte Strong-Armed Chinese Dam-Builders But Weakened Philippine Institutions’, Camba, A, Carnegie Endowment for International Peace, 15 June 2021, p.22, 20210616101150.

   The January 2023 Human Rights Watch article also mentions the ‘Cordillera People’s Alliance, an outspoken Indigenous rights network’, and ‘Panaghiusa, a broad Philippine network of Indigenous peoples’ groups’.[56] Further information about Panaghiusa can be located on its website at ‘Philippines: Officials ‘Red-Tagging’ Indigenous Leaders, Activists’, Human Rights Watch, 26 January 2023, 20230127122836.

The Cordillera Peoples Alliance (CPA) describes itself as ‘an independent federation of progressive peoples organizations, most of them grassroots-based organizations among indigenous communities in the Cordillera Region, Philippines’.[57] The CPA’s website refers to its links to other organisations, including its membership ‘of KATRIBU Kalipunan ng mga Katutubong Mamamayan ng Pilipinas, a national alliance of indigenous peoples in the Philippines’. The CPA is also ‘affiliated with the Bagong Alyansang Makabayan (BAYAN, New Patriotic Alliance), a national federation of people’s organizations in the Philippines committed to nationalist and democratic goals’. It is also a member of ‘KALIKASAN (People's Environment Network); and is in partnership with IBON Foundation and IBON International, research and advocacy institutions’.[58] 

[57] ‘About Us - Cordillera Peoples Alliance’, Cordillera Peoples Alliance, n.d., Accessed 20 March 2023, 20230320145246.

[58] ‘About Us - Cordillera Peoples Alliance’, Cordillera Peoples Alliance, n.d., Accessed 20 March 2023, 20230320145246.

PLEASE INDICATE THE CURRENT SITUATION IN TERMS OF HARM FROM AUTHORITIES IN THE PHILIPPINES FOR THOSE ACTIVELY INVOLVED IN SUCH POLITICAL MOVEMENTS OR ORGANISATIONS, PARTICULARLY IN THE COTABATO REGION, INCLUDING THE LIKELIHOOD OF ARREST AND HARM AS A RESULT OF PARTICIPATION IN POLITICAL RALLIES.

An October 2022 COISS Q&A report includes information on the new Philippine government’s attitude towards non-profit human rights activists, whether there were reports of targeting of small not-for-profit organisations, which advocate grass-roots empowerment , and whether not-for-profit activists were being targeted in the Philippines.[59]

[59] ‘Philippines: 20221003182028 - New Philippine Government - Journalists - Human Rights Activists - Human Rights - Political Rights - Harm - Journalists Who Publish Abroad - Red-tagging - Not-For-Profit Organisations - Not-For-Profit Activists - National Endowment for Democracy’, Country of Origin Information Services Section (COISS), 24 October 2022, 20221025121653 (Questions 1, 2, 5, 6 & 7).

Further to the information mentioned in that Q&A report, the January 2023 Human Rights Watch world report states:

Leaders and lawyers of peasant organizations and human rights groups who were red-tagged have been physically harmed by government security forces and vigilantes; several have been killed. Others were harassed, such as a group of nuns and peasant women who were charged with aiding “terrorist activities.” In June, Clarita Carlos, the new chairperson of the National Security Council, publicly said that she did not favor red-tagging. Despite this declaration, the practice continued.[60]

[60] ‘Human Rights Watch World Report 2023’, Human Rights Watch, 12 January 2023, p.487, 20230112144355.

The Human Rights Watch world report also notes:

Government and military officials accused civil society groups of being supporters of communist New People’s Army (NPA) insurgents, who have been waging a 53-year armed conflict across the Philippines. Such accusations made without evidence are part of what is commonly known in the Philippines as “red-tagging,” which put the accused at heightened risk of attack by the security forces or unidentified gunmen. The military, police, and other national security forces have actively used social media to convey “red tagging” threats, and in several cases, those red-tagged persons were subsequently killed by unknown gunmen.[61]

[61] ‘Human Rights Watch World Report 2023’, Human Rights Watch, 12 January 2023, p.486, 20230112144355.

In a January 2023 article, Human Rights Watch also reported that Philippine authorities were ‘using “red-tagging” and other forms of threats and violence to intimidate Indigenous leaders and activists opposed to government-backed projects in the Philippines’.[62] The harassment and attacks against Indigenous peoples contributed ‘to making the Philippines one of Asia’s most dangerous countries for environmental activists and land defenders. Activists are also harassed through the justice system, with many facing politically motivated charges for defamation and other fabricated offenses’. Companies involved in projects often worked ‘closely with the police and military to secure control over project areas, which can raise tensions and result in violence’. Rival Indigenous groups had ‘been organized to serve as a foil against groups criticizing these projects, claiming to represent the entire community in support of the project despite opposition’.[63] The article further states:

[62] ‘Philippines: Officials ‘Red-Tagging’ Indigenous Leaders, Activists’, Human Rights Watch, 26 January 2023, 20230127122836.

[63] ‘Philippines: Officials ‘Red-Tagging’ Indigenous Leaders, Activists’, Human Rights Watch, 26 January 2023, 20230127122836.

Prince Turtogo, national coordinator of Panaghiusa, a broad Philippine network of Indigenous peoples’ groups, said that his organization found that red-tagging often escalates into violent attacks. During the administration of President Rodrigo Duterte, Panaghiusa recorded 126 cases of extrajudicial killings of leaders and members of Indigenous communities from 2016 to 2021. “All of those Indigenous leaders and civilians or their groups experienced red-tagging at least at one point,” Turtogo said.

Indigenous rights activists have also been harassed though the court system, with politically motivated cases of defamation, terrorism, and common crimes filed against them. Sarah Dekdeken, chair of the Cordillera People’s Alliance, was convicted in December 2022 of a cyber-libel charge filed against her by a police officer whom Dekdeken had accused in a social media post of ordering the removal of monuments dedicated to tribal leaders. Windel Bolinget, another Indigenous rights leader from the northern Philippines, is facing murder charges that he asserts were fabricated to harass him for his advocacy.[64]

[64] ‘Philippines: Officials ‘Red-Tagging’ Indigenous Leaders, Activists’, Human Rights Watch, 26 January 2023, 20230127122836.

In December 2022, Rappler, reported that ‘[k]illings and the culture of impunity have continued under President Ferdinand Marcos Jr. – if the deaths of journalists, activists, and other members of civil society organizations in a span of almost six months are any indication’.[65] In relation to activists and human rights defenders, the article states that ‘[p]rogressive individuals, peasants, and human rights defenders were also unsafe under the new administration’.[66] The article continues:

[65] ‘IN NUMBERS: People we lost under Marcos in 2022’, Bolledo, J , Rappler, 15 December 2022, 20221216144434.

[66] ‘IN NUMBERS: People we lost under Marcos in 2022’, Bolledo, J , Rappler, 15 December 2022, 20221216144434.

Based on the documentation of rights group Karapatan, at least 17 civilians from the peasant sector became victims of extrajudicial killings from July 1 to November 30. Two of them – Ericson Acosta and Joseph Jimenez – were affiliated with organizations.

Acosta was a consultant of the National Democratic Front (NDF), while Jimenez was a peasant organizer. They both lost their lives in Kabankalan City, Negros Occidental on November 30.

The military said Acosta died in an encounter, but the NDF claims he was captured alive and murdered. Karapatan also called on the Commission on Human Rights to probe “the reported summary execution” of the two.

On arrests and detention, Karapatan said they have recorded at least 30 illegal arrests under Marcos, 24 of them peasants. At least 10 were affiliated with organizations, the rights group added.[67]

[67] ‘IN NUMBERS: People we lost under Marcos in 2022’, Bolledo, J , Rappler, 15 December 2022, 20221216144434; See also: ‘NDFP leader, companion slain in Negros Occidental ‘clash’’, Gomez, C, Philippine Daily Inquirer, 1 December 2022, 20230320163805; ‘CHR starts probe on deaths of NDF consultant Ericson Acosta, companion’, GMA News Online, 8 December 2022, 20221215135602.

A January 2023 public statement by Amnesty International also refers to the killings of Ericson Acosta and Joseph Jimenez:

In November 2022, activists Ericson Acosta and Joseph Jimenez were found dead in Negros Occidental province. They were allegedly abducted by the Philippine Army but according to the army, the bodies of Acosta and Jimenez were recovered after a clash between the armed forces and rebels from the New People’s Army. Amnesty International is not aware of any investigation to have been carried out into their deaths.[68]

[68] ‘Philippines: Ensure justice for ‘Bloody Sunday’ killings and other attacks against activists’, Amnesty International, ASA 35/6377/2023, 25 January 2023, p.2, 20230127111236; See also: ‘NDFP leader, companion slain in Negros Occidental ‘clash’’, Gomez, C, Philippine Daily Inquirer, 1 December 2022, 20230320163805; ‘CHR starts probe on deaths of NDF consultant Ericson Acosta, companion’, GMA News Online, 8 December 2022, 20221215135602.

Another public statement by Amnesty International in December 2022 refers to Ericson Acosta as an ‘activist and peace consultant’. While the Philippine Army said ‘the bodies of Acosta and Joseph Jimenez were recovered following a clash with 10 communist rebels’, the National Democratic Front (NDF), which is ‘the political wing of the Communist Party of the Philippines (CPP) whose armed group is the NPA’, said that ‘Acosta and Jimenez were initially captured alive. The group added the two men were in the area “to consult on the situation of farm workers in southern Negros and share developments regarding the Comprehensive Agreement on Social and Economic Reform (CASER)”’. The ‘CASER was an agreement between the government of the Philippines and the NDF proposed during peace negotiations terminated by the government at the start of 2017’. Subsequent reports ‘claimed that contrary to the Philippine Army, Acosta and Jimenez were forcibly taken from the house they were staying and later declared killed’.[69]

[69] ‘Philippines: Investigate killing of activists and address violence in Negros province’, Amnesty International, ASA 35/6278/2022, 6 December 2022, 20221214183535; See also: ‘NDFP leader, companion slain in Negros Occidental ‘clash’’, Gomez, C, Philippine Daily Inquirer, 1 December 2022, 20230320163805; ‘CHR starts probe on deaths of NDF consultant Ericson Acosta, companion’, GMA News Online, 8 December 2022, 20221215135602.

The January 2023 public statement by Amnesty International also comments that:

Since the Marcos administration took power in June 2022, attacks against activists and human rights defenders have escalated once again. On 13 January 2023, development workers Dyan Gumanao and Armand Jake Dayoha were abducted in Cebu City. They were found three days later after their abductors reportedly left them at a resort some 40 kilometres away from where they had been abducted. In a 22 January press conference-, Gumanao and Dayoha said their captors subjected them to “psychological and emotional torture”; moved them from one place to another while handcuffed, blindfolded, and sometimes gagged; and told them they were taken because they are “activists”. They also said their captors repeatedly identified themselves as police and threatened to turn them over to other units of a “task force” for execution if they did not talk about their ties with “terrorist groups”. Their families have sought the assistance of the Philippines’ Commission on Human Rights to investigate their abduction and have called on the police and local authorities in Cebu to also conduct their own investigation. Gumanao and Dayoha have also said they are planning to bring their case to Philippine courts and international bodies to hold security forces accountable for their disappearance.[70]

[70] ‘Philippines: Ensure justice for ‘Bloody Sunday’ killings and other attacks against activists’, Amnesty International, ASA 35/6377/2023, 25 January 2023, p.1, 20230127111236.

In December 2022, members of the European Parliament (MEPs) ‘urged the Philippine government to give due process and fair trial to 10 human rights defenders from Karapatan, Gabriela, and the Rural Missionaries of the Philippines’ who were ‘facing trial for perjury’. The MEPs demanded the Philippine authorities ‘ensure that the constitutionally and internationally enshrined standards regarding due process and fair trial are respected for the ten human rights defenders and members of Karapatan, Gabriela, and the Rural Missionaries of the Philippines’. This entailed ‘refraining from criminalizing those who peacefully and legitimately defend human rights in the country, in accordance with the United Nations Declaration on Human Rights Defenders’.[71] In January 2023, the ten activists were acquitted by a Quezon City court of perjury, stemming from a complaint filed during the Duterte administration. The judge said ‘the prosecution failed to establish beyond reasonable doubt that the activists made 'a willful and deliberate assertion of a falsehood'​.’ Rappler reported that RMP, Karapatan, and GABRIELA were ‘just among the many progressive and human rights groups that were targeted by the state, especially during the Duterte administration’s crackdown on dissent’.[72]

[71] ‘European Parliament members seek due process, fair trial for 10 rights advocates’, Mangaluz, J, Inquirer.net, 13 December 2022, 20221214152839; For further information from sources in relation to the Rural Missionaries of the Philippines, please see the September 2022 Philippines Common Claims document. ‘The Philippines Common Claims September 2022’, Country of Origin Information Services Section (COISS), 16 September 2022, pp.6 & 18, 20220916120840.

[72] ‘Quezon City court clears activists in Esperon’s perjury charge’, Gavilan, J, Rappler, 9 January 2023, 20230317160333; See also: ‘QC court junks former NSA Esperon Jr.’s perjury case against 10 rights activists’, Hernaez, J, ABS-CBN News, 9 January 2023, 20230317172334.

In November 2022, the Supreme Court of the Philippines ‘ordered national and local army officials to answer allegations that they were involved in the disappearance of two land rights advocates’ in July 2022 ‘or to show proof that they conducted investigations with regard to the said case, including its results’.[73] The Supreme Court is reported to have ‘granted a writ of amparo and temporary protection order in favor of Azase Galang who sought for court intervention after her mother, Ma. Elena "Cha" Cortez Pampoza of Anakpawis, and Elgene "Leleng" Mungcal of Gabriela Women's party-list went missing’ in July. Pampoza and Mungcal were ‘agrarian reform advocates who had closely worked with farmers’, and ‘were believed to have been taken by state agents on July 3, 2022’.[74]

[73] ‘SC grants ‘amparo’ to missing activists’ kin’, Baroña, F J C, The Manila Times, 10 December 2022, 20221212191027.

[74] ‘SC grants ‘amparo’ to missing activists’ kin’, Baroña, F J C, The Manila Times, 10 December 2022, 20221212191027; See also: ‘Injustice persists amid security shake-up in the Philippines’, Agojo, K N M, East Asia Forum, 18 February 2023, 20230224121817.

In its concluding observations on the fifth periodic report of the Philippines published in November 2022, the United Nations Human Rights Committee states:

The Committee is concerned at reports of increased crackdowns, including in the context of the government’s counter-terrorism and anti-illegal drug operations, on human rights defenders, activists and other civil society actors to discourage them from carrying out their legitimate activities. It is further concerned about reports of “red-tagging” of human rights defenders, activists and other civil society actors, further exposing them to death threats, intimidation, attacks, arbitrary arrest and detention, enforced disappearances and extrajudicial killings (arts. 2, 6, 9, 19 and 21–22).[75]

[75] ‘Concluding observations on the fifth periodic report of the Philippines’, United Nations Human Rights Committee, 3 November 2022, p.11, 20221107125628.

Civil society groups were reported to have ‘welcomed the recommendation of UN experts on how to improve the country’s human rights situation’. Karapatan, a group which was ‘often “red-tagged” by authorities’, had ‘advice for [Department of Justice Secretary Jesus Crispin C] Remulla and the Marcos government’. Karapatan said in a statement ‘“No amount of whitewashing and platitudes can convince the world it is doing enough. The Marcos Jr. government must realize that nothing short of an honest admission of the human rights situation in the Philippines would make this government believable in the eyes of the world. And if the Philippine government wishes respect, it must sincerely promise to stop human rights violations and prosecute past perpetrators”’.[76]

[76] ‘UN Report Charts Human Rights Decline in the Philippines’, Palatino, M , The Diplomat, 11 November 2022, 20221111151814.

In February 2023, the Philippines House of Representative’s Committee on Human Rights approved a bill ‘seeking to protect human rights defenders and penalize their red-tagging, intimidation, and reprisal due to their work’. One of the authors of the bill, ‘Gabriela Party List Rep. Arlene Brosas, stressed the importance of getting the bill passed into law, citing instances of alleged human rights violations against human rights defenders’. She said ‘“[t]he systematic red-tagging, vilification, surveillance, and filing of trumped-up charges against human rights defenders have resulted in rampant violations.”’[77]

[77] ‘House panel approves bill protecting human rights defenders’, Gulla, V, ABS-CBN News, 28 February 2023, 20230307172122; See also: ‘House bill protecting human rights workers hurdles committee level’, GMA News Online, 1 March 2023, 20230307173529.

PLEASE BRIEFLY OUTLINE GENERALLY THE CURRENT SITUATION IN THE PHILIPPINES UNDER THE NEW GOVERNMENT IN TERMS OF HARASSMENT, INTIMIDATION AND HARM DIRECTED TOWARDS POLITICAL OPPONENTS.

The previously mentioned October 2022 COISS Q&A report includes information on whether since the change of government in the Philippines, with President Ferdinand Marcos Jr taking office on 30 June 2022, there had been any indication of a decline or improvement in human/political rights in the Philippines.[78]

[78] ‘Philippines: 20221003182028 - New Philippine Government - Journalists - Human Rights Activists - Human Rights - Political Rights - Harm - Journalists Who Publish Abroad - Red-tagging - Not-For-Profit Organisations - Not-For-Profit Activists - National Endowment for Democracy’, Country of Origin Information Services Section (COISS), 24 October 2022, 20221025121653 (Question 2).

Further to the information mentioned in that Q&A report, the January 2023 Human Rights Watch world report states:

The six-year term of President Rodrigo Duterte, which ended on June 30, was defined by the politics of threats and intimidation, thousands of extrajudicial killings of mostly impoverished Filipinos from urban areas, and serious damage to the country’s democratic institutions. Since the inauguration of Ferdinand Marcos Jr. as president, the human rights situation has hardly changed.

The United Nations Office of the High Commissioner for Human Rights (OHCHR), in a September report that assessed the progress of the Philippines-UN Joint Program on Human Rights, which began in June 2021, laid out major human rights problems facing the country. Among these are the continued “harassment, threats, arrests, attacks, red-tagging against civil society actors, as well as the continued drug related killings by police.” The report also noted that “access to justice for victims of human rights violations and abuses remained very limited.”

President Marcos has sought to reassure the international community that he is committed to human rights. His officials, speaking before the United Nations Human Rights Council in October, highlighted several steps that they intended to take, while asserting that the human rights situation in the Philippines has improved. Human rights and civil society groups, however, debunked these claims with reports to the council of continuing human rights violations.[79]

[79] ‘Human Rights Watch World Report 2023’, Human Rights Watch, 12 January 2023, p.485, 20230112144355.

The Human Rights Watch world report also states that ‘[t]he government’s National Task Force to End Local Communist Armed Conflict, which works closely with the military, police, and the president’s office, accused numerous political activists of being members of the Communist Party or the NPA. Among those red-tagged by the task force is former Vice President Leni Robredo, who lost to Marcos in the recent presidential election’.[80] The report also mentions the arbitrary detention of former Senator Leila de Lima, a strong critic of ex-President Duterte:

[80] ‘Human Rights Watch World Report 2023’, Human Rights Watch, 12 January 2023, p.486, 20230112144355.

Former Senator Leila de Lima, 62, one of the foremost critics of ex-President Duterte, remained in police detention since her arrest on trumped-up drug charges in 2017. De Lima faces unsubstantiated charges alleging that she received money from drug lords while serving as justice secretary. Her detention continues even though two key witnesses in the Philippine government’s case against her have retracted their testimonies. Human Rights Watch believes the Duterte administration was retaliating against her for investigating extrajudicial killings under Duterte’s anti-drug campaign.[81]

[81] ‘Human Rights Watch World Report 2023’, Human Rights Watch, 12 January 2023, p.488, 20230112144355.

In February 2023, Amnesty International called on the Marcos administration to drop the charges against de Lima and ensure her release. The Amnesty International article states that ‘[s]ince April 2022, several key witnesses have recanted their testimonies against de Lima, saying they were coerced and threatened by former government officials to fabricate allegations against her’. These witnesses included ‘Rafael Ragos, a former acting chief of the Bureau of Corrections, who said he was forced to “manufacture lies” by former Justice Secretary Vitaliano Aguirre and other senior officials’.[82] The article also states:

[82] ‘Philippines: Six years on, arbitrary detention of former Senator Leila de Lima continues’, Amnesty International, 23 February 2023, 20230223181949.

The arbitrary detention of de Lima continues under the broader context of increasing impunity for human rights violations in the country, including killings, threats and harassment of political activists, human rights defenders, members of the media, and other targeted groups.

The country’s human rights situation worsened under the previous Duterte administration and recent similar cases have also been recorded during the Marcos administration, including the October 2022 murder of journalist Percy Lapid and the killing of two activists in Negros province in November 2022.[83]

[83] ‘Philippines: Six years on, arbitrary detention of former Senator Leila de Lima continues’, Amnesty International, 23 February 2023, 20230223181949.

A February 2023 article in the South China Morning Post notes that President Marcos’ record on human rights was ‘coming under scrutiny amid claims there has been no let-up in the bloody war on drugs since he became president. He faces mounting pressure to release Leila De Lima, a vocal critic of Duterte who has been imprisoned since 2017’.[84] Marcos had previously said in October 2022, responding ‘to the plea of detained former senator Leila de Lima and opposition lawmakers seeking her release’, that ‘he trusts the process, and that asking state prosecutors dealing with her drug-related cases to do anything would be “interfering.”’[85] On 24 February 2023, de Lima’s representatives filed a motion seeking her release and/or bail. The current Justice Secretary, Jesus Crispin Remulla, had already stated he would not oppose a petition by de Lima for bail, or a writ of habeas corpus for temporary freedom.[86] The next hearing for the case against de Lima was scheduled for 17 March 2023.[87]

[84] ‘ICC’s reopened probe into Rodrigo Duterte’s drug war puts Ferdinand Marcos Jnr and Philippines in a tight spot’, Townsend, M T, South China Morning Post, 9 February 2023, 20230210170601.

[85] ‘Marcos on pleas for De Lima’s release: ‘We don’t doubt the process’’, Abad, M , Rappler, 14 October 2022, 20221017154312.

[86] ‘After witnesses retracted allegations, De Lima again asks court to junk case’, Bolledo, J , Rappler, 24 February 2023, 20230227181518.

[87] ‘De Lima continues to seek freedom on 6th year in prison for drug charges’, Caparas, J , ABS-CBN News, 27 February 2023, 20230228113507.

Also in February 2023, a delegation of European Union (EU) lawmakers from the EU parliament’s subcommittee on human rights visited the Philippines, where they met with local government officials and saw de Lima in prison. A member of the delegation, Hannah Neumann, said releasing de Lima and returning to the International Criminal Court (ICC) would be strong indications that the Philippines would want to continue its EU tariff privileges granted by the Generalised Scheme of Preferences Plus (GSP+). The delegation members ‘reiterated the Parliament’s call for’ de Lima’s ‘immediate and unconditional release and the dropping of all the remaining charges against her, and expressed the same request as concerns all other political prisoners’.[88] As well, ‘[w]hen asked to give their general impression on the human rights condition in the Philippines, Neumann said “it’s better than it was under [former] president Duterte,” due to some commitments on human rights made by the Marcos administration. However, in the same presser, the EU delegation noted that killings continue even under the new administration’.[89]​

[88] ‘Freeing De Lima ‘strong sign’ that PH wants to continue GSP+ perks’, Bolledo, J , Rappler, 24 February 2023, 20230228154728.

[89] ‘Freeing De Lima ‘strong sign’ that PH wants to continue GSP+ perks’, Bolledo, J , Rappler, 24 February 2023, 20230228154728.

In its concluding observations on the fifth periodic report of the Philippines published in November 2022, the United Nations Human Rights Committee states:

The Committee is concerned about reports of the extremely lengthy pretrial detention of former Senator Leila de Lima since 2017 and of politically motivated charges, such as rebellion and sedition, brought against opposition members, such as former Senator Antonio Trillaes and former Vice President Leni Roberdo (arts. 9, 10 and 25).[90]

The committee recommended that:

The State party should refrain from using criminal laws as a tool to harass, intimidate and exclude members of the opposition from meaningful participation in public life and electoral processes. It should take necessary steps to end the prolonged pretrial detention of former Senator Leila de Lima, including through granting her bail, and to ensure that her trial and trials of other opposition members are conducted without delay and with the respect of due process rights.[91]

Amnesty International also reported in November 2022 that ‘[s]ince taking office, the Marcos administration has repeatedly promised the international community it will improve the human rights situation in the country, pointing to investigations the Department of Justice is meant to be carrying out on drug-related killings, and the presence of a UN Joint Programme among other initiatives. Unfortunately, none of these measures has produced tangible results, despite significant investment from UN member states and insistence from the government that the situation is improving’.[92]

In December 2022, Associated Press reported that hundreds of people had ‘marched in the Philippines capital protesting what they say is a rising number of extrajudicial killings and other injustices under the administration of President Ferdinand Marcos Jr’.[93] Cristina Palabay of the rights group Karapatan said the number of political prisoners in the Philippines had continued to rise, ‘with 828 detained as of 30 November’. Mr Palabay said that ‘at least 25 of them were arrested after Mr Marcos took office in June’. Karapatan said that ‘the current administration was also increasing the use of terror laws to suppress dissents, and curtailing freedom of expression, press freedom and freedom of association’.[94]

[90] ‘Concluding observations on the fifth periodic report of the Philippines’, United Nations Human Rights Committee, CCPR/C/PHL/CO/5, 3 November 2022, p.12, 20221107125628.

[91] ‘Concluding observations on the fifth periodic report of the Philippines’, United Nations Human Rights Committee, CCPR/C/PHL/CO/5, 3 November 2022, p.12, 20221107125628.

[92] ‘Philippines: Adopt recommendations of UN review to address human rights situation’, Amnesty International, ASA 35/6199/2022, 14 November 2022, p.2, 20230320174827.

[93] ‘Human Rights Day protesters accuse Philippines president of extrajudicial killings, injustices’, Associated Press, 10 December 2022, 20221212081851.

[94] ‘Human Rights Day protesters accuse Philippines president of extrajudicial killings, injustices’, Associated Press, 10 December 2022, 20221212081851.

Hearing, credibility, findings and assessment

1. 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

2. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

3. The Tribunal is satisfied that the applicants are citizens of the Philippines and accordingly their claims will be assessed against the Philippines.

4. As indicated there were two Tribunal hearings considering the remitted application for review. These are referred to below as the ‘first hearing’ and ‘second hearing’, respectively. The original Tribunal hearing leading to the decision that was remitted back to the Tribunal is referred to as the ‘original Tribunal hearing’.

5. In the first hearing, the Tribunal sought to clarify whether claims of harm beyond the applicant’s political involvement are being pursued. This includes broader claims of harm as a result of the Philippines being a third world country, prevalence of natural disasters, generalised violence, the COVID-19 pandemic and inferior health facilities in the Philippines given the asthma suffered by the applicant’s son. The Tribunal put to the applicants that claims on these grounds are unlikely to meet protection criteria. However, the Tribunal would deal substantially with claims on these grounds if they were to be seriously pursued.  The applicant and the representative indicated that the claims are limited to the applicant’s claimed political involvement and these broader claims are not being pursued as invoking protection criteria.

6. After discussions with the applicant’s wife and representative at the beginning of the first hearing, it was indicated that the applicant’s wife is not claiming that she herself will face requisite harm in the Philippines. Her claims are based on her being a member of the same family unit as the applicant.

7. The Tribunal asked the applicant about the claim that his [Relative] [Mr A] was killed by a policeman on 1 April 2016 when attending an APPO rally. The applicant indicated that his death caused increased fear for the applicant for his safety. The applicant indicates that he is of the exact same political profile as his [Relative] and thus he too faces similar harm.

8. The Tribunal is inclined to accept on the basis of all the evidence that in school and at university the applicant was involved in indigenous and Lumad causes including being a member of the KMP and the APPO.  The Tribunal is satisfied that at least on some occasions during this period the applicant was detained by police in political rallies resulting in police inflicting physical harm on the applicant. The applicant in evidence indicated that he was not charged with an offence in any of these detentions. The Tribunal accepts that in these encounters with authorities the applicant suffered serious and significant harm.

9. However, the Tribunal has concerns as to the credibility of claims as to the applicant’s claimed political involvement after university given significant inconsistencies as to the extent and nature of his political involvement after this point in time. There are also significant inconsistencies in claims by the applicant as to his broader circumstances in terms of his whereabouts from [Year] until 2013, and the extent to which the applicant returned from overseas to the Philippines. There are also inconsistencies in claims by the applicant’s wife as to the applicant remaining in the Philippines for eight months after their marriage in [Year] and engaging in political activity incurring harm from authorities.

10. These create specific concerns as to the truth of political involvement after university and the inconsistency on contextual matters reinforce those more specific credibility concerns. They result in doubt for the Tribunal in terms of the degree to which the applicant would be significantly politically involved on return to the Philippines.

11. In the original Tribunal hearing, the applicant is asked whether he attended political rallies after his college days. The applicant indicated in response that he needed to find a job and he did attend rallies once or twice, but really not much though.

12. In contrast, in the first hearing, the applicant was asked how the extent of his political involvement changed after university. The applicant indicated that his level of political involvement increased because he had been appointed as [an Organisational role]. He indicated that during the year after university he attended four rallies and was harmed by authorities at three or four of the rallies.

13. The Tribunal put to the applicant the inconsistency between the hearings as to his claimed level of political involvement after university. In response to the inconsistency, the applicant indicated that his work as [an Organisational role] was less than before and that there was a decreasing general level of political activity, but that this has now changed.

14. The applicant’s explanation to the Tribunal did not readily explain the inconsistency. The Tribunal has credibility concerns as to the claimed level of political involvement and activity of the applicant after leaving university.

15. There is significant inconsistent evidence provided by the applicant as to his whereabouts during the years [Year] until 2014, and the extent to which he returned to the Philippines from overseas during these years. These stark inconsistencies create broader concerns as to the applicant’s overall claimed circumstances.

16. In the application for the protection visa the applicant indicates that his only overseas trip before coming to Australia was a trip to [Country 1] from [Year] until 2011 for work. The claims indicated that from [Year] until [Year] the applicant lived in Manila before returning to North Cotabato in [Year]. After the return from [Country 1] in November 2011 the applicant moved back to North Cotabato and remained there until June 2013 prior to moving to Australia.

17. The applicant confirmed in the interview with the delegate that apart from his trip to [Country 1] he lived during this period in the Philippines. The applicant indicated in the interview that he had been to no other countries apart from [Country 1].

18. In contrast, in the original Tribunal hearing, the applicant indicated that from [Year] until 2013 he lived and worked in a number of countries out of the Philippines.

19. In that hearing the applicant was asked whether he returned to the Philippines during these years. In response he indicated that he did not return at all because it was too expensive and he didn’t have much earning potential in the Philippines.

20. In contrast to this evidence, in the first hearing the applicant indicated that he returned to the Philippines on one or two occasions during this period to visit his wife. He said that on these occasions he would spend several weeks in the Philippines and he would undertake accounts work during his visits.

21. The Tribunal put to the applicant the inconsistency of evidence of return visits with the evidence in the original Tribunal hearing. The applicant then changed his evidence to indicate that he never returned to the Philippines. However, later in the hearing the applicant reverted to his original evidence that he did return to the Philippines on one or two occasions.

22. The applicant’s wife gave evidence to the Tribunal in the first hearing that her husband returned to the Philippines every 18 months or so making a total of three return visits. However, he did not work in the Philippines on any of these occasions.

23. There are multiple inconsistencies in terms of the applicant’s and applicant’s wife’s evidence over time as to where he was located between [Year] and 2013 and whether or not and how often he returned during these years from the Philippines. These inconsistencies as to his broader claimed circumstances were put to the applicant on multiple occasions.

24. The applicant did not readily explain the inconsistencies in a believable way other than to say that it was a long time ago and there is confusion. The applicant’s representative submitted both orally in the first hearing and in writing after the first hearing that the applicant was not paying appropriate attention or recognising the importance of being accurate in providing broader contextual information in the claims.

25. The applicant’s representative submitted the inconsistencies on issues apart from political involvement are irrelevant inconsistencies to core claims of harm based on political involvement and should not be given significant adverse weight by the Tribunal.

26. The applicant’s wife in the first hearing indicated that after the marriage to the applicant in [Year]\ she lived with the applicant in a house that had been gifted to them by family in Cotabato.  The applicant remained living with her for eight months until he left to work overseas. The applicant’s wife indicated in the hearing that during this eight month period there were a number of instances where the applicant engaged in political rallies where he was harmed by authorities. In contrast, the applicant indicated that he left to work in [Country 2] almost immediately after their marriage in [Year] and that his wife is mistaken in her evidence. The Tribunal asked the applicant’s wife again if she was certain that the applicant remained living with her in the Philippines for eight months after the marriage and she indicated that she was certain.

27. The inconsistent evidence between the applicant’s wife and the applicant as to when it was that the applicant left the Philippines for [Country 2] and claims by the applicant’s wife that for eight months from [Year] that the applicant was participating in political rallies in which he suffered harm, when, on the applicant’s claims he was not in the Philippines during this period, creates direct credibility concerns in relation to claimed political involvement and harm by the applicant after university. They reinforce the credibility concerns outlined above in terms of where the applicant lived and how often he returned to the Philippines from [Year].

28. The Tribunal does not consider that the inconsistencies in terms of where the applicant lived and in what countries he lived from [Year] to 2013 and how often he returned to the Philippines are irrelevant to the claims for protection. As put to the applicant and at the second hearing, the Tribunal could form the view that the truth of the situation is that contained in the protection visa application and indicated in the interview with the delegate. That evidence is that the applicant remained in the Philippines until coming to Australia, apart from living in [Country 1] from [Year] until 2011. That could result in the view that the applicant did not continue his political activity while in the Philippines much past his university years. It could also result in the Tribunal not accepting that the applicant had suffered harm or was threatened much beyond his university years, including not believing that he had been threatened when he returned to the Philippines in 2013, disbelieving the applicant’s later claims of being out of the Philippines from [Year] to 2013, apart from [Country 1]. The fact of the Tribunal believing that the applicant did not pursue political activities after [Year] and the belief that he did substantially remain in the Philippines during this period with no claims of political activity (apart from claims of activity in 2013 discussed below) could cause the Tribunal to consider the applicant would not be politically active on return to the Philippines in the future.

29. In response the applicant indicated that he is still a member politically even though not active but would be active on return. The Tribunal indicated to the applicant that the core issue in its view was that the applicant was mostly in the Philippines and not politically active much beyond university indicating that he would not be politically active on return. The applicant indicated that he would be politically active. Oral submissions by the representative indicated that the Tribunal needed to engage in a forward-looking assessment regardless of decisions in which countries the applicant had lived in from [Year].

30. Notwithstanding these explanations, the Tribunal has significant overall credibility concerns in relation to the applicant given stark inconsistencies in terms of where and in which countries he has lived. The Tribunal considers that apart from [Country 1] from [Year] until 2011 the applicant was in the Philippines. The Tribunal considers that he has concocted claims of being overseas in other countries from [Year] until 2013 to seek to untruthfully account for the fact that he was not much, subject to the claims below, politically involved in the Philippines after [Year].

31. The applicant has claimed in his most recent written statement that on return to the Philippines in 2013 he became as active politically as he had been previously in the Philippines. His written claims indicate that he received multiple threats during this period including threats to the life of him and his family. In contrast, in the second hearing the applicant while referring to some political involvement during this period, and participation in one rally, indicated initially that he did not face any substantive difficulties because the situation was relatively stable.

32. The Tribunal put to the applicant the significant inconsistency with his written claims that he did suffer significant threats during this period. The applicant indicated that he did receive threats, and the situation was the same as before. The Tribunal considers that this is directly inconsistent with what the applicant just minutes before told the Tribunal in the second hearing that he did not suffer any substantive political difficulties during this period. The stark inconsistency is undermining of the applicant’s credibility.

33. The Tribunal also has credibility concerns with the new claims in the recent written statement that in 2016, while the applicant was in Australia, he had received political threats from the Philippines via a colleague named [Mr C].

34. Such claims of threats were not made in his protection visa application form or initial accompanying written statements or indicated in the interview with the delegate or the original Tribunal hearing.

35. In response to this issue in the second hearing, the applicant indicated that he had forgotten in the interview with the delegate that he had received threats in Australia in 2016. The Tribunal finds it extremely difficult to believe that the applicant forgot this highly probative information as to the potential harm he would face.

36. Credibility concerns as to the applicant’s coming to Australia fearing harm in the Philippines are reinforced, by the delay in the applicants from arrival in Australia in July 2013 until applying for the protection visa in April 2016. The Tribunal noted to the applicant in hearing that he had unsuccessfully lodged a temporary work visa in July 2015 and that it was not until after this was refused that he applied for the protection visa. The Tribunal put to the applicant that the delay, particularly after a student visa ended and given that the temporary work visa would not offer permanent protection could all be seen as undermining of the extent and genuineness of the claimed fear.

37. In response, the applicant indicated that a reason for the delay was that the political environment in the Philippines could change. The applicant’s representative submitted it not unreasonable for the applicants to have felt protected in holding temporary visas and the potential for it to take time to learn of the option of a protection visa.

38. Whilst not determinative in adverse credibility findings, notwithstanding the explanations, the Tribunal considers it undermining of the fears claimed and evidence given by the applicant in hearing that one of the motivations for coming to Australia was to escape harm in the Philippines that there was an almost three-year delay from arrival in Australia until applying for the protection visa.

39. The Tribunal put to the applicant in both hearings that the various inconsistencies could result in the Tribunal not being satisfied that the applicant was substantially active politically in the Philippines soon after finishing university in [Year], or that he would continue to be involved politically at the same level as he was involved at until he left university. The Tribunal put to the applicant that it is now [Number] years since these events and that his circumstances have changed in terms of marriage and a family and that he would not because of these changed circumstances have a desire to be politically involved as he was before.

40. In response, the applicant maintained the stridency of his belief in the cause of indigenous Filipinos in that he would on return continue to be involved politically to the extent that he had previously been involved until the end of his university days. Submissions are made that the applicant would be politically involved notwithstanding credibility concerns as to what the applicant has claimed previously.

41. The cumulative impact of the credibility concerns are highly adverse to the applicant’s credibility in terms of substantive claims as to what happened after university. The Tribunal is not satisfied that the applicant was politically active after his leaving university, including in the Philippines in 2013. The Tribunal is not satisfied that the applicant suffered any harm or threats as a result of political activities after leaving university. The Tribunal is not satisfied that the applicant received threats from the Philippines in Australia in 2016. The Tribunal is not satisfied that the applicant would be politically active on return to the Philippines. Such failure to be politically involved is not in the Tribunal’s view a product of his fear of such political involvement.

42. The Tribunal is not otherwise satisfied that the applicant has been specifically targeted for harm by authorities in the Philippines after his university years as a result of his past political activity. It is not consistent that the applicant has been targeted given that, on his claims, on multiple occasions since [Year] he has left and returned to the Philippines through airports. In hearing, the applicant maintained that his departures were ‘back door’ given that he did not leave the country through Manila but through subsidiary airports. The Tribunal does not consider it plausible that the applicant could have left and returned to the Philippines on multiple occasions since [Year] and not been detected if he was a person of adverse interest to authorities.

1. However, as the Tribunal has indicated it does not believe that the applicant travelled as claimed to other countries other than [Country 1] and his present trip to Australia. The same conclusions nevertheless follow in relation to the applicant being able to travel to [Country 1] and return to the Philippines and exit the Philippines for Australia without difficulty.

2. The Tribunal is not satisfied that the applicant has because of past activities been identified as a person of adverse interest in the Philippines that would subject him to a real chance of serious or significant harm on return from authorities.

3. The representative in the hearing referred to red-tagging and indicated that it was not being claimed that the applicant had been red-tagged, just that there was a real chance that he could be in the future given what would be his ongoing level of political involvement. As indicated, the Tribunal is not satisfied that the applicant would be politically involved on return to the Philippines in a way that would attract the adverse attention of authorities.

4. Claims have been previously made that the KMP and the APPO are prescribed terrorist organisations. In the first hearing it was acknowledged that this is not the case.

5. The Tribunal is prepared to accept, for the purpose of this decision only, that the applicant’s [Relative] was killed by authorities in April 2016 as a result of the [Relative]’s involvement with the APPO. The applicant has claimed that he would have the same political profile and involvement as his [Relative]. For the various reasons indicated the Tribunal is not satisfied of this. The Tribunal does accept that independent evidence referred to and extracted to this decision establishes that both during the applicant’s time in the Philippines when politically involved, and subsequently, including after the recent change of government that significant involvement in indigenous grassroots politics, particularly at a leadership level, could well result in adverse treatment from authorities as a result. However, for the reasons indicated the Tribunal is not satisfied that on return to the Philippines the applicant would continue to be actively politically engaged.

6. Given these findings, the Tribunal is not satisfied that there are past political activities engaged in by the applicant in the Philippines which result in ongoing adverse attention towards him by authorities leading to a real chance of him suffering serious or significant harm from authorities. The Tribunal is not satisfied that on return to the Philippines the applicant would be involved politically in a way that would result in a real chance of authorities inflicting serious or significant harm on him.

7. The Tribunal on the basis of credibility concerns identified is not satisfied that the applicant faces a real chance of serious or significant harm on return to the Philippines for any of the reasons claimed.

8. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason set out in s 5J of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the Philippines, he is at real risk of significant harm.

9. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

10. The Tribunal affirms the decision not to grant the applicants protection visas.

    David McCulloch
    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.

    …