2215256 (Refugee) - [2025] ARTA 1179

2215256 (REFUGEE) [2025] ARTA 1179 (28 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2215256
Tribunal:General Member E Chan
Date:28 March 2025

Place:Adelaide
Decision:The Tribunal affirms the decision under review.

Statement made on 28 March 2025 at 6:01pm
CATCHWORDS
REFUGEE – protection visa – the Philippines – particular social group – homosexual man – verbally and physically abused and pressured to marry long-term female friend by family – bullied and lost job in another country – one-night stands in home country, occasional relationships in other country and partner in Australia – financial support from and regular contact with family – general, inconsistent and unpersuasive evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of the Philippines, applied for the protection visa on 6 February 2020. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection.
The applicant appeared before the Tribunal on 11 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
BACKGROUND
The applicant was born in [Municipality], Batangas, in the Philippines. He is a Filipino citizen.
[In] January 2020, the applicant arrived in Australia, travelling on a visitor visa (subclass 600). The applicant has remained in Australia since that date.
On 17 October 2022, the applicant lodged an application with the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
This decision and statement of reasons is made by the Tribunal.
Evidence before the Department
In his protection visa application form, the applicant stated that he was seeking protection in Australia from The Philippines for the following reasons:
a.He left the Philippines as he was invited to holiday in Australia by his brother because they had not seen each other for a long time whilst he was working in [Country]. It was a big decision for him to express himself openly and he knows only Australia will accept and understand him; he is gay and only his brother in Australia knows about it.
b.He experienced past harm in the Philippines. In [Country], it was a big issue for him when they found out he was gay. As it is an Arab country they do not accept homosexuals and his boss talked to him and said that he needed to work as a man and not to act as a gay person while at work. For this reason, he lost his job in [Country]. He is not accepted for his sexual orientation in the Philippines. When he discussed being gay with ‘them’,[1] they asked him to marry his ‘long time’ girlfriend but it was just a cover up for them so they would not have to see him as a gay person. The applicant is tired and just wants to be who he is.
c.He did not seek help within the country as it is a very personal matter. He is accepted in society but he is not accepted by his family. If he returns to the Philippines, he is afraid of what his father will do to him and he cannot take a risk because they are old and he does not want them to worry about him. He does not think the Filipino authorities will protect him on his return as this is a personal matter and he needs to deal with it with his family.
d.He tried to relocate and decided to work abroad but unfortunately his sexual orientation was not accepted in the Middle East. He was bullied there for being gay. He cannot relocate in the future as his family are only located in one place and he cannot go to another place. It is better for him to stay with his brother in Australia who is now open minded because he is an Australian. The applicant knows the Australian Government will understand ‘the bisexual problem’[2] and the bullying and harassment he is experiencing.
e.If he returns to the Philippines, his family will not accept him and it will cause trouble between him and his father. He needs some time for them to accept who he is. He does not want to get married as he thinks this is unfair. He will be bullied by his relatives and friends. In his family, no one else is gay except him. He will be harmed and mistreated in that he will be bullied and they will harass him to get married.
f.He hopes that he can stay in Australia so that he can be who he is without the need to hide his personality and hopefully there will be a time when they will accept him for being a gay person. He hopes that he can stay and work in Australia so that he can help his family.
[1] The applicant’s reference to ‘they’ in his protection visa application form is ambiguous. However, the applicant confirmed at hearing in his oral evidence that the reference to ‘they’ is his parents.
[2] At the hearing, the applicant clarified that he identifies as gay and not bisexual. He has an exclusive sexual interest in males.
In refusing the applicant’s protection visa application, the delegate accepted that the applicant’s sexual orientation meant that he was a member of a particular social group namely, being a Lesbian Gay Bisexual Transgender Intersex Queer (LGBTIQ+) person in the Philippines. In reaching their decision, the delegate considered available country information that indicated the Philippines is generally considered to be one of the most LGBTIQ+ friendly countries in Asia, notwithstanding its strong Catholic culture and that people in the Philippines are generally free to marry the person of their choice. The delegate considered that whilst the applicant claims he is gay, he did not provide any other evidence in support of his claims despite being invited to do so, including how he discovered his sexual orientation, how he expressed his sexual orientation in the Philippines or in [Country] or since his arrival in Australia. The applicant also referred to having a long term girlfriend and issues relating to people who are bisexual without providing any further information or evidence beyond his own statement. The delegate noted that the applicant said only his brother in Australia knew about his sexual orientation but yet he was advised to marry his long term girlfriend when he discussed his sexuality in the Philippines.
The delegate found the applicant’s claims to be internally consistent. The delegate further took into account that the applicant claimed to fear harm from his family members but yet was in daily contact with his family in the Philippines and hoped to remain in Australia and help them. Ultimately, the delegate was not satisfied that the applicant is a refugee as defined in s 5H(1) of the Act. The delegate was also not satisfied that the applicant is a person to whom Australia owes complementary protection.
Evidence before the Tribunal
The applicant participated in a hearing before the Tribunal on 11 March 2025. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is owed protection as a refugee or under the complementary protection provisions as set out above. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and receiving country
The Tribunal accepts that the applicant is a Filipino national, that he does not have citizenship or permanent residency in any other country and that the Philippines is his receiving country for the purposes of assessing his protection claims. The Tribunal also accepts the applicant arrived in Australia [in] January 2020 and has remained in Australia since that time.
Does the applicant satisfy the refugee criterion for protection?
The applicant fears harm from his parents if he returns to the Philippines on account of his sexual orientation. In addition, the Tribunal has considered and addressed the question of whether the applicant will face a real chance of serious harm if he returns to the Philippines on account of any forced marriage or on the grounds of employment.
Sexual orientation
The applicant told the Tribunal that he cannot remember the first time he realised he was gay, but he knew from primary school when he used to play with girls and when he was not as ‘strong’ as the other boys. He started to notice in school that he acted like a girl, but he did not know why. The applicant said he is not sexually attracted to females but wished he could be as ‘beautiful’ as them.
At the outset of the hearing, the Tribunal asked the applicant if he was currently partnered. At that time, he said ‘no’ and that he and another were ‘Not really a committed partner, just like friends’. When asked if he has someone who he considers a boyfriend he said, ‘I do have a partner like my, like a companion, yes, just to go places like Adelaide…I consider him a closer partner, a close partner.’ When asked if he has sexual relations with this partner, he said ‘yes’ and that he would have sex with this partner ‘maybe once a month when [they] go out together or when [the applicant has] a day off for example’. He lives in [accommodation] for work purposes where his partner is not able to visit and his partner resides elsewhere in their rural city.
Later in the hearing, the Tribunal asked the applicant specific questions in relation to his relationship with his partner. The applicant said that he is not part of any social media group as he already has a partner. The relationship with his partner is very new, less than a year; they met in May 2024. When asked how they met, he said they watched a basketball game in the rural city where they live in South Australia. During their first date, the applicant told the Tribunal that they talked, walked around and bought groceries from [supermarket] together. When asked where his partner lives, he said his partner lives off the main highway in the same rural city; he does not know his exact address but he knows how to get there. When asked how often they would see each other, the applicant said they see each other on weekends but not every weekend. When asked what kinds of things they do together, the applicant said they eat together, go to the river together ‘and [they] get intimate, sometimes even just in the car’. On Christmas day, the applicant said they went out together, had dinner together by buying Kentucky Fried Chicken (KFC) and eating it on the river and became intimate together. They stayed at the river until late and then had ‘intimacy’ in the car together. Later, he said he is not that open with his sexuality so they were ‘just in the car’. When asked if he has any pictures of them together, he said he is not open about their relationship together and is not fond of having pictures taken so he does not have any pictures of them as a couple. When asked whether he has any chat logs or messages between him and his partner that he could show the Tribunal, the applicant said they only talk on the microphone when they are playing computer games together and have no written messages between each other.
Whilst the applicant initially told the Tribunal that he would not be calling any witnesses to give evidence in support of his review application, he was later content for his partner, ‘Witness A’, who was sitting outside the hearing room, to give evidence at the hearing. When the Tribunal asked Witness A how he would describe his relationship with the applicant, Witness A said, ‘we are OK’. Witness A told the Tribunal that initially when they first met they were friends, but now they are ‘just getting acquainted’ and ‘just courting each other’. Witness A told the Tribunal that he has been gay since he was [age] years old when he was in the Philippines. When asked how he met the applicant, Witness A said he met the applicant at work. When asked when they started dating, there was a long pause before Witness A responded that they started their relationship in December 2024. When asked what the main things they do together are, Witness A said they eat outside, like McDonalds and ‘nothing else’. When asked what they did on their first date, Witness A said they ate McDonalds and did nothing else. When asked if they spent Christmas together, Witness A initially said ‘no’ then when asked again, he said they ‘only gave food to each other’; they gave cake to each other and then did nothing else. When asked if they had ever been to any sporting games together, he said they had not. When asked if he had ever had sexual relations with the applicant, he said ‘not yet’; when asked again, Witness A said they have only kissed after work when the applicant dropped Witness A in his home. Witness A told the Tribunal he was not part of any social media and that he has never visited any gay clubs with the applicant but he did so before he met the applicant. Witness A said he was not interested in visiting gay clubs with the applicant as he is an introvert and does not like to socialise. When asked if he has any photographs of him and the applicant on his mobile phone, Witness A said he did. Witness A then showed the Tribunal two photographs – one of the applicant and Witness A in a store standing separately and striking a pose with raised hand gestures and the other, with the applicant and Witness A sitting apart at a table with two other people who Witness A said were his close friends. Neither photographs, on their face, were suggestive of the applicant and Witness A in an intimate or close relationship. When asked whether he had any chat logs with the applicant that he could show the Tribunal, Witness A said he had no chat logs with the applicant; they only called each other.
When asked whether he had any previous gay relationships, the applicant said that in 2008, he was sexually attracted to someone in university but he could not remember his name. He told the Tribunal that he is attracted to any male who is handsome but he was not in a relationship with them, he was just attracted to them. When asked whether he had any gay relationships whilst in the Philippines, he said he would occasionally have a one night stand when he had drinks with some men. When asked if they would then go on to have sexual relations after drinks, he said ‘yes’. He never joined any LGBTIQ+ groups in the Philippines as there are none in the Philippines. When asked how he met other gay men, he said they met not so much in specific LGBTIQ+ groups, but they were friends and they would go to private rooms in school or sometimes they would meet in the school boarding house which was walking distance from the college and where some of his classmates stayed.
When the applicant was asked if he had any gay relationships in [Country], the applicant said he had occasional relationships when he had a drink and those relationships would last ‘just a few days’. As [Country] is strict, he says he only ever had sexual intercourse with another male on one afternoon.
Overall, the Tribunal found the applicant’s evidence with respect to his claimed sexual orientation very general and unconvincing. In particular, the applicant and Witness A’s oral evidence was inconsistent with respect to a number of significant aspects, including whether they had ever had sexual intercourse, when the relationship started, how they met and what they did on certain significant events. When the Tribunal raised concerns about the inconsistency of Witness A’s evidence with the applicant’s evidence in relation to those matters, the applicant reasoned that ‘maybe [Witness A] can’t express everything in detail as expected’. The Tribunal did not find the applicant’s explanation, persuasive. On the information before the Tribunal, the Tribunal is not satisfied that the applicant is a gay person, that he has ever had any sexual interest in males, or that he has ever been in a sexual relationship with another male.

When asked about his reference to the ‘bisexual problem’ in his protection visa application, the applicant confirmed he only has a sexual interest in males and that he is not bisexual. On the information before the Tribunal, the Tribunal is not satisfied that the applicant is a bisexual or that he is claiming any harm on account of being a bisexual if he returns to the Philippines.
Past harm
The applicant claims that he suffered past harm in the Philippines on account of being gay by his parents, to a lesser degree, his family, the Filipino authorities and members of the general public. He also claims to have suffered past harm by way of harassment and discrimination in [Country].
The applicant told the Tribunal that he came to Australia in January 2020 as his parents were coming to [Country] at the time and he was scared they would harm him again. The applicant claims he has suffered past harm in the Philippines on account of his parents. He has suffered verbal and physical abuse. The applicant said that in the past, his father ‘strangled’ him and his parents hurt his feelings as they told him he was a ‘disgrace’ and that he should not be who he is. They told him to get married when he told them he could not afford it. His parents wanted him to have children, but he told them that he could not.
Between 2007 and 2011, the applicant studied a Bachelor of [Subject 1] in [Specialisation] at a university in Batangas. At that time, most of his cousins studied [subject 2] and became [occupation]. His parents wanted the applicant to do the same. The applicant told the Tribunal that in 2007, the applicant told his parents that he was not going to study [subject 2] because he could not handle it. His parents tried to ‘force’ him to study [subject 2] and that is when he told them he is different. The applicant said that when his parents found out that he was ‘strange’, they ‘strangled’ him and kicked him out of the house. That is also the time when the applicant claims his parents started to ‘hurt’ him. By ‘hurt’, he meant that his parents started to ‘strangle’ him and tell other people that he is not their son, he is a disgrace, he is gay and they would get angry at him. The applicant said that he found their verbal abuse more hurtful than their physical abuse. The applicant said that the physical abuse came predominantly from his father who was more strict; his mother was not very violent.
The applicant’s university was in Batangas City and he and his family lived in [Municipality]. Whilst studying in university, the applicant continued to live in [Municipality] and would travel to and from university, a drive of approximately [Time] minutes. When at home, the applicant claimed his father would strangle him. The applicant claimed that he has a mark on his neck from his father trying to strangle him and that his teachers noticed his bruising at the time. He did not report the violence from his parents to the Filipino police because these kinds of matters are not reported and children just suffer for years.
When the Tribunal asked the applicant who paid for his university fees, he said his mother did; in his family household, his father gave his wages to his mother and his mother managed the expenses. However, he claimed that because he was ‘strange’ the money given to him was limited. When asked at the beginning of the hearing whether he is in contact with his family, he said that he speaks to his mother one to two times per month via online chats. He speaks with his siblings regularly, approximately two times per week on social media or via online video calls. The Tribunal accepts the applicant’s oral evidence that his parents financially supported him through university and that he still maintains regular contact with his mother and siblings.
The applicant told the Tribunal that in Australia, he is still very careful and private because fellow Filipinos will discriminate against him. He has only told his partner that he is gay. His siblings (including his brother in Australia) and his parents know about his sexual orientation. The applicant says that his family do not support him; they want him to have children. When the Tribunal raised an inconsistency in his oral evidence at the hearing that his parents and his siblings know he is gay and yet in his protection visa application he says at one point that his brother is the only person who knew and then later, that those around him in [Country] knew he was gay, he said sometimes people in [Country] would ask him and he would not answer but perhaps they already suspected that he was gay. The Tribunal does not accept this to be a reasonable or persuasive explanation for the inconsistency in his claims.
The Tribunal found the applicant’s oral evidence about the past harm that he suffered from his parents on account of his sexual orientation, unpersuasive. The applicant’s oral evidence in relation to his father ‘strangling’ him was very vague. Other than putting his hands around the applicant’s neck and leaving some bruising on at least one occasion, the applicant’s evidence was very general. The Tribunal does not accept that the applicant’s father physically abused him in the circumstances described. The Tribunal also does not accept that the applicant’s parents have ever exerted any physical abuse or otherwise attempted to force the applicant to marry his long-term girlfriend to ‘cover up’ his sexual orientation.
The Tribunal also found the applicant’s oral evidence that his parents financially supported him through university even though he chose not to study [subject 2] and that he still maintains regular contact with his mother and his siblings, as being inconsistent with his claim that his parents and family are unsupportive of him and that his parents want to harm him. The Tribunal finds that the applicant has fabricated the story of past harm from his parents and siblings, to strengthen his protection claims. Given the Tribunal’s findings with respect to the applicant’s sexual orientation, it follows that the Tribunal does not accept that the applicant suffered past harm from his parents on account of his sexual orientation.
When asked whether he has ever had any problems with the Filipino authorities on account of being gay, he said he had experienced discrimination and they had pushed him. When asked what he meant by discrimination, he said they would ‘whistle’ at him. He said that people on the street (not the authorities) were also rude to him. He later confirmed that he had no problems with the Filipino authorities on account of being gay but if he reported his experiences of general rudeness from others to them, they would ignore him. He confirmed that he had never reported any rudeness that he claims to have received, to the Filipino police. The Tribunal accepts the applicant’s oral evidence that he has never experienced any problems with, or past harm from, the Filipino authorities on account of being gay. The Tribunal rejects the applicant’s earlier evidence in the hearing, which he himself did not pursue, that the Filipino authorities discriminated against him and/or whistled at him in the circumstances described. Given the Tribunal does not accept the applicant is a gay person, the Tribunal does not accept that the applicant experienced any rudeness from the Filipino community on account of being gay.
The applicant claims that when he was in [Country], it was hard for him due to his sexual orientation; he was harassed and disgraced. The applicant told the Tribunal that he was on a holiday from work in [Country] when he came to Australia – he needed to apply for leave from his job so he used the reason that his brother had invited him to visit Australia as they had not seen each other for a long time, as a reason to apply for leave. When the Tribunal raised the inconsistency between his oral evidence at the hearing that he had to apply for leave from his job in [Country] to come to Australia and his claim in his protection visa application that he had lost his job on account of being gay, he said he felt he was going to lose his job in [Country] so he made the move to Australia before he could be fired. The Tribunal does not accept the applicant’s evidence for the discrepancy. The Tribunal preferred the applicant’s earlier evidence at hearing before the Tribunal raised its concerns with the applicant, namely that he was still employed at the time and was on leave from that employment to visit Australia. The Tribunal does not accept that the applicant lost his job in [Country] on account of being gay. Given the Tribunal does not accept the applicant is a gay person, the Tribunal also does not accept that the applicant experienced any discrimination or harassment whilst working in [Country] on account of being gay.
Overall, the Tribunal found the applicant’s oral evidence with respect to the past harm he suffered in the Philippines from his parents, his family, the Filipino authorities and the general public was very general, not convincing and, at times, inconsistent. Similarly, the Tribunal found the applicant’s oral evidence in relation to his claims to have suffered past harm in [Country] to be unpersuasive and, at times, inconsistent. Given the Tribunal does not accept that the applicant is a gay person, it follows that the Tribunal does not accept that the applicant suffered any past harm in either the Philippines on account of being gay from either his parents, his family, the Filipino authorities or people in his community. The Tribunal also does not accept that the applicant suffered any past harm in [Country] on account of being gay.
Future harm
The applicant claims that he fears return to the Philippines as his parents will follow him wherever he goes and that they will disgrace him. The applicant confirmed that his fear of harm relates to his parents and not to the Filipino authorities.
The applicant is afraid that his parents will do the same thing as they did in the past and will hurt him; he is trying to protect his wellbeing. The applicant claims that they will follow him wherever he goes and they want him to be straight. When it was put to him that they did not follow him to Batangas City when he went there to study, he agreed that they did not pursue him at that time but when he returned home two times a week to eat and wash clothes, they ‘hurt’ him. When the Tribunal raised its concerns that the only harm he seemed to fear was from his parents and that seemed to be some time ago, the applicant said that no matter where he goes, his parents will follow him and put him to shame and force him to marry someone and to have children. He said he really does not know what kind of harm they will be capable of but that he remained fearful. Given the Tribunal does not accept that the applicant is gay, it follows that the Tribunal is not satisfied that the applicant will face any harm from his parents or his family if he returns to the Philippines on account of being gay.
Further, the Tribunal notes that the applicant is an adult and that his mother now resides between [Country] and the Philippines and has done so for some time. Whilst the applicant cannot remember when his mother moved to [Country], he said she goes to [Country] for a year and then goes back to the Philippines. His mother lives in [Country] with his [sister] and helps his sister by caring for her children while his sister is at work. The fact that his parents have not pursued him to Australia, that the applicant maintains regular contact with his mother and his siblings and that he wants to continue working in Australia to help his family, is inconsistent with the applicant’s claim that he fears his parents will pursue him wherever he goes with the intention of disgracing him. It follows that the Tribunal is not satisfied that the applicant faces a real chance of serious harm, or any harm, by his parents or his family if he returns to the Philippines on account of sexual orientation, now or in the reasonably foreseeable future.
When it was put to the applicant that country information suggested that the Philippines was considered generally tolerant of the LGBTIQ+ community,[3] the applicant agreed that it is not illegal to be gay in the Philippines, but said it is illegal for same sex couples to get married and that he would like to get married. Given the Tribunal does not accept the applicant is gay, the Tribunal does not accept that the applicant would like to enter into a gay marriage now or in the reasonably foreseeable future. The applicant later told the Tribunal that being gay is not a big issue in the Philippines and that the Filipino authorities have a greater focus on general crime and are less focussed on LGBTIQ+ matters. The Tribunal accepts the applicant’s statement in this regard, noting that it is generally consistent with available country information. Given the Tribunal does not accept that the applicant is gay, it follows that the Tribunal is not satisfied that the applicant will face any harm from the Filipino authorities if he returns to the Philippines on account of being gay.
Finding
[3] See, Department of Foreign Affairs and Trade (DFAT), Country Information Report, The Philippines (23 August 2021) at [3.57] – [3.58], [3.62], [3.65] and [3.66].
For the reasons discussed in this statement, the Tribunal does not accept that the applicant faces a real chance of serious harm, or any harm, if he returns to the Philippines on account of his sexual orientation, now or in the reasonably foreseeable future. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the reasons claimed, for the purposes of s 36(2)(a) of the Act.
Forced marriage
In his protection visa application form, the applicant said when he told his parents that he was gay, his parents asked him to marry his long-term girlfriend to ‘cover up’ his real sexual orientation and that he does not want to get married on his return and that it would be ‘unfair’, The Tribunal understood that the applicant advanced this claim to support his central claim that he will suffer harm if he returns to the Philippines on account of being gay. The Tribunal did not understand the applicant to be claiming a general fear of return to the Philippines on account of any forced marriage by his parents to his long-term girlfriend or to any other person.
When asked about the statement in his form, the applicant told the Tribunal that whilst in the Philippines, he had a long-time girlfriend and his parents wanted him to marry her so they could have children but he felt he could not. He said he felt she was like his ‘sister’; he just used the relationship to ‘show off’, ‘pretend’ or ‘cover up’ for being gay. She was not a long-term girlfriend.
As discussed earlier in this statement, the Tribunal found the applicant’s oral evidence that his parents financially supported him through university even though he chose not to study [subject 2] or marry, and that he still maintains regular contact with his mother and his siblings, as being inconsistent with his claim that his parents and family are unsupportive of him and that his parents want to harm him, including by way of a forced marriage with either his ‘perceived’ long-term girlfriend or another person. It follows that the Tribunal is not satisfied that the applicant will face a real chance of serious harm if he returns to the Philippines on account of being forced into marriage with his ‘perceived’ long-term girlfriend of any other person for the reasons claimed, now or in the reasonably foreseeable future.
Employment
In his protection visa application form, the applicant said that he hopes to stay and work in Australia so that he can help his family. At the hearing, the applicant did not raise a fear of returning to the Philippines on account of not being able to find work or that he would be in significant economic hardship if he returned to the Philippines. He also did not give any oral evidence that would suggest he would suffer significant economic hardship if he returned.
The Tribunal notes that the applicant has previously worked in paid employment in the Philippines in the [work sector] as [an occupation] and has also done paid employment in [Country].
‘Serious harm’ includes significant economic hardship that threatens the person’s capacity to subsist.[4] There is no evidence before the Tribunal to suggest that the applicant would suffer significant economic hardship if he returned to the Philippines within the meaning of s 5J(5)(d) or (f) of the Act. It follows that the Tribunal is not satisfied that the applicant faces a real chance of serious harm if he returns to the Philippines for reasons of employment, now or in the reasonably foreseeable future.
Claims considered individually and cumulatively
[4] See, s 5J(5)(d) of the Migration Act 1958 (Cth).
Having assessed all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, for any of the reasons claimed if he returns to the Philippines. The Tribunal is not satisfied that the applicant’s fears of persecution, should he return to the Philippines, are well-founded.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act.
In MIAC v SZQRB,[5] the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J of the Act.
[5] MIAC v SZQRB [2013] FCAFC 33.
The Tribunal has found that the applicant does not face a real risk of any harm if he returns to the Philippines on account of his sexual orientation or a forced marriage to his ‘perceived’ long-term girlfriend or any other person for the reasons claimed, now or in the reasonably foreseeable future. On the evidence before the Tribunal, the Tribunal also does not accept that the applicant would suffer significant harm within the meaning of s 36(2A) of the Act on the basis of any employment reasons as claimed. The Tribunal has considered the applicant’s claims, individually and cumulatively, and does not consider his claims to amount to significant harm as defined in s 36(2A) of the Act. Having regard to all of the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no 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 he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision under review.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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