2211582 (Refugee)

Case [2023] AATA 2378

2211582 (Refugee) [2023] AATA 2378 (16 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2211582

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Simone Burford

DATE:16 May 2023

PLACE OF DECISION:  Perth

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

Statement made on 16 May 2023 at 1:54pm

CATCHWORDS
REFUGEE – protection visa – Philippines – fear of harm from COVID pandemic and economic hardship – consent to decision without hearing and request for referral for ministerial consideration – claimed fears not a convention reason – applicant’s partner an Indigenous Australian and Australian citizen children identify as Indigenous – domestic violence and visa status used as control – partner’s imprisonment and death – best interests of children – as citizens, they cannot meet criteria – possible separation not significant harm as defined – strong support through school, community and church – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (4)(a), (5), 36(2)(a), (aa), (2A), 417
Migration Regulations 1994 (Cth), Schedule 2

CASES
AUB16 v MIBP [2017] FCCA 2634
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
MIAC v SZQRB [2013] FCAFC
MZAEN v MIBP [2016] FCCA 620
SZRSN v MIAC [2013] FCA 751
SZSNX v MIBP [2015] FCCA 2271
WZARI v MIMAC [2013] FCA 788
1510675 (Refugee) [2018] AATA 1735

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    Background

  2. The applicant is a [Age]-year-old citizen of the Philippines. She was born in Cebu, Philippines.

  3. Sometime prior to 2015 the applicant entered into a relationship with an Australian citizen. They have two daughters who were born in the Philippines. They are now around [Age] and [Age] years old. Both children are Australian citizens. The applicant also has a [Age]-year-old son who remains in the Philippines. 

  4. According to movement records the applicant most recently arrived in Australia [in] May 2020 on a Visitor (subclass 600) visa. She had made several prior visits to Australia beginning in 2014.

  5. The applicant applied for the visa on 20 July 2021. On 22 July 2022 a delegate of the Department refused that application.

  6. The applicant applied for a review of that decision with this Tribunal on 10 August 2022. 

  7. On 22 March 2023 the applicant confirmed she waived her right to a hearing before the Tribunal and consented to her application being determined on the papers so that she could pursue an application for Ministerial intervention.

  8. For the…

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AGLC
2211582 (Refugee) [2023] AATA 2378
Case
[2023] AATA 2378
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse the applicant, a citizen of the Philippines, a protection visa. The applicant sought review before the Administrative Appeals Tribunal (AAT), but ultimately consented to a decision on the papers to enable her to pursue an application for ministerial intervention. The AAT was required to determine whether the applicant met the criteria for a protection visa under s 36(2)(a) of the *Migration Act 1958* (Cth) (the Act), or the complementary protection criterion under s 36(2)(aa) of the Act.

The applicant's claims for protection were based on fears of harm from the COVID-19 pandemic and economic hardship in the Philippines. She also highlighted her daughters' Australian citizenship and Indigenous heritage, and her own history of domestic violence perpetrated by her deceased Australian citizen partner, who she alleged used her visa status as a means of control. The Tribunal considered whether these claims constituted a fear of harm for a convention reason, or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal, the applicant would suffer significant harm.

The Tribunal found that the applicant's fear of harm from the COVID-19 pandemic did not meet the threshold for a convention reason under s 5J(1)(a) of the Act. Furthermore, considering the applicant's circumstances, including the support available to her daughters through school and community, and the fact that the daughters were Australian citizens with Indigenous heritage, the Tribunal was not satisfied that there was a real risk of significant harm to the applicant upon return to the Philippines. While acknowledging the applicant's history of domestic violence and the support provided by independent professionals, the Tribunal concluded that her claims, taken individually and cumulatively, did not meet the required thresholds for either refugee or complementary protection.

Despite affirming the delegate's decision to refuse the protection visa, the Tribunal recommended that the applicant's case be referred to the Minister for consideration of intervention under s 417 of the Act. This recommendation was based on the applicant's circumstances, particularly concerning her daughters' Indigenous heritage and the need for them to remain in Australia to maintain their cultural connection, as well as the applicant's history as a victim of domestic violence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background The applicant is a [Age]-year-old citizen of the Philippines. She was born in Cebu, Philippines. Sometime prior to 2015 the applicant entered into a relationship with an Australian citizen. They have two daughters who were born in the Philippines. They are now around [Age] and [Age] years old. Both children are Australian citizens. The applicant also has a [Age]-year-old son who remains in the Philippines. According to movement records the applicant most recently arrived in Australia [in] May 2020 on a Visitor (subclass 600) visa. She had made several prior visits to Australia beginning in 2014. The applicant applied for the visa on 20 July 2021. On 22 July 2022 a delegate of the Department refused that application. The applicant applied for a review of that decision with this Tribunal on 10 August 2022. On 22 March 2023 the applicant confirmed she waived her right to a hearing before the Tribunal and consented to her application being determined on the papers so that she could pursue an application for Ministerial intervention. For the following reasons, the Tribunal has concluded that the decision of the delegate refusing to grant the visa should be affirmed. The Tribunal has also recommended the applicant’s case be referred to the Minister for consideration of Ministerial intervention.Protection claimsProtection visa application In her written protection application, the applicant stated that she was born in Cebu, Philippines. At the time the application was lodged she was separated. She is Filipino and a member of the Catholic faith. She was unemployed at the time the application was made. The applicant detailed her claims for protection in her application for the visa. These were summarised in the delegate’s decision as follows (in summary):· they have two Australian citizen children.· their children are of Australian/Aboriginal descent.· they have sole custody of the children.· it is not safe for the children in the Philippines due to COVID-19.· COVID-19 is worse in the Philippines.· they don’t want to go back to the Philippines because they are not known there.· they don’t have enough money to go back to the Philippines. She was not interviewed by the Department. She submitted a statement, identity documents, and citizenship certificates for her daughters to the Department in support of the claims made in the application for the visa.The delegate’s decision On 29 July 2022, a delegate of the Minister refused the protection visa application. The applicant provided a copy of the delegate’s decision to the Tribunal. The delegate found the applicant’s fear of harm from the COVID-19 pandemic in the Philippines is not for one of the reasons in s 5J(1)(a) of the Act. Therefore, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.

Evidence

Evidence Before The Court

The Tribunal finds that the applicant is a citizen of the Philippines, which is also the receiving country for the purpose of the refugee and complementary protection assessments.CONSIDERATION OF CLAIMS AND EVIDENCEThe applicant’s circumstances In her application to the Department the applicant indicated she was applying for protection as it was not safe for her daughters to return to the Philippines because of COVID. She noted that they were in her sole custody and she was their only family in Australia. She noted that the children’s father, her former partner neglected them and did not want custody. In her 2023 statement to the Tribunal the applicant provided further detail of her circumstances. She noted that:I have been in Australia since 2018, and had spent time in Australia previously. My late ex-husband was an Australian citizen and my sponsor for my visa. My late ex-husband also identified as Aboriginal, and our two daughters also identify as Aboriginal. During this relationship, [Mr C] perpetrated significant family and domestic violence towards me. My two daughters and I had to enter refuge where we resided for 9 months, and then entered transitional accommodation. My late ex-partner served 6 months imprisonment due to physical assault and strangulation against me. My ex-husband would not support me to gain permanent residency in Australia. This was a tactic of his family violence; he wanted to control me and have power over me. He also did not want me to have rights to work as he did not want me to work, have access to money or leave the house.I want to stay in Australia because my children are Australian Citizens, and have lived here for the past five years. I want my children to stay here and be connected to their community and culture.This is currently being fostered at their school. I worry that their Aboriginal culture would be lost if we were to return to the Philippines. My late ex-husband wanted the girls to know about their Aboriginal identity, and to be connected to their country and culture.My daughters will also have more opportunity for education, health, and wellbeing in Australia. I believe it is in their best interests to stay in Australia, and to further develop their connection to their culture. My children feel safe and secure in Australia and I want them to continue to feel stability in Australia, where they have lived in for most of their lives. [Dr B], a Medical Officer in the Aboriginal Health Team of the Western Australian Child and Adolescent Health Service, also provided a letter of support outlining the applicant’s family circumstances as follows:The family has experienced considerable trauma having gone through FDV perpetrated by her husband and his subsequent imprisonment. She is the only caregiver for her two girls, and sadly her estranged husband was released from prison & has since committed suicide on [date]/11/21. [The applicant] and the children were in a refuge for an extended period and having finally been assigned for transition housing.[The applicant] has been found to be a highly committed and engaged mother. She has brought the children for physical checks and developmental assessments and will be seeking further assistance from the Child Development Service. She has been trying to find ways for the children to engage and develop their Aboriginal identity and is wishing to stay in Australia so that they can continue with that journey. She is needing a path that will enable her to get the rights of an Australian citizen so that she can provide for the children, build their indigenous identity, and ensure they have adequate education. Please contact me if you have any questions.

Decision

Reasons for decision

Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, there is a real risk that the applicant will suffer significant harm for the purposes of s 36(2)(aa) of the Act. CONCLUSION For the reasons given above, the Tribunal finds that the applicant has failed to demonstrate that she would suffer any real chance of serious harm on return to the Philippines or that she faces a real risk of significant harm on return. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). There are no other claims that arise from the evidence or country information and the applicant has not raised any further fears of harm on return to the Philippines. Taking the applicant’s claims individually and then cumulatively, at their highest, they do not meet the required thresholds under either the refugee assessment criterion or the alternative complementary protection assessment criterion. On the information before the Tribunal, the applicant does not satisfy s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).REFERRAL TO THE MINISTER The applicant’s correspondence indicates that she wishes to seek Ministerial intervention. The Tribunal has treated this information as a request that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant referred to the circumstances of her daughters and their need to remain in Australia to maintain their connection to their Indigenous culture. She also referred to her past history as a victim of domestic violence and her claims that her then partner used her visa status to exert control over her, perpetuating the family violence she was subjected to prior to his imprisonment and later death by suicide. As noted above there was limited documentary evidence provided to the Tribunal to support the applicant’s claimed circumstances. However, the Tribunal considers that what was offered supports her general claims and account of her circumstances. Her account of her circumstances was supported by a domestic violence case worker and a public health official, both from Western Australia. The Tribunal considers both to be credible and independent sources of information and notes they provided consistent accounts to those offered by the applicant. That information establishes that the applicant was a victim of domestic violence, for which her partner was convicted and served time in prison. He later died by suicide leaving her solely responsible for the children. It also established to the Tribunal’s satisfaction that her children are identified as having Aboriginal heritage.

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidenceCountry of reference The applicant claims to be a citizen of the Philippines and provided a copy of her passport to the Department with her application. The Tribunal finds that the applicant is a citizen of the Philippines, which is also the receiving country for the purpose of the refugee and complementary protection assessments.CONSIDERATION OF CLAIMS AND EVIDENCEThe applicant’s circumstances In her application to the Department the applicant indicated she was applying for protection as it was not safe for her daughters to return to the Philippines because of COVID. She noted that they were in her sole custody and she was their only family in Australia. She noted that the children’s father, her former partner neglected them and did not want custody. In her 2023 statement to the Tribunal the applicant provided further detail of her circumstances. She noted that:I have been in Australia since 2018, and had spent time in Australia previously. My late ex-husband was an Australian citizen and my sponsor for my visa. My late ex-husband also identified as Aboriginal, and our two daughters also identify as Aboriginal. During this relationship, [Mr C] perpetrated significant family and domestic violence towards me. My two daughters and I had to enter refuge where we resided for 9 months, and then entered transitional accommodation. My late ex-partner served 6 months imprisonment due to physical assault and strangulation against me. My ex-husband would not support me to gain permanent residency in Australia. This was a tactic of his family violence; he wanted to control me and have power over me. He also did not want me to have rights to work as he did not want me to work, have access to money or leave the house.I want to stay in Australia because my children are Australian Citizens, and have lived here for the past five years. I want my children to stay here and be connected to their community and culture.This is currently being fostered at their school. I worry that their Aboriginal culture would be lost if we were to return to the Philippines. My late ex-husband wanted the girls to know about their Aboriginal identity, and to be connected to their country and culture.My daughters will also have more opportunity for education, health, and wellbeing in Australia. I believe it is in their best interests to stay in Australia, and to further develop their connection to their culture. My children feel safe and secure in Australia and I want them to continue to feel stability in Australia, where they have lived in for most of their lives.