Evidence
Evidence Before The Court
On 13 April 2022 the first named applicant provided the following additional information in response to a natural justice request form the delegate for further information:Evidence that your partner was involved in this police operation on [the day in] November 2016My partner, then police officer [Partner A] and his group were dispatched and coordinated for a Search and Seizure operation with the [Department 2], [Division 1] headed by [Officer B]. Here below is an Incident Report on the police operation on illegal online-gambling at [Location 1].(SEE ATTACHED PDF FILE OF THE INCIDENT REPORT)Dates your partner, [named], was informed and warned by his co-workers that some Chinese men were looking for him and his home address as well as any documentary evidence to support your claims.It was on [a day in] September 2018, when my partner went to the [Department 1] office to secure some paper works for his retirement. Upon seeing his co-police officers he was told that somewhat June of 2018 where some Chinese men came by asking for him. My partner has been living with me at our home address since we were together at [a specified address in] Pampanga PhilippinesSince [November] 2016, when your partner conducted a search and seizure operation against a group doing illegal online gambling, has there been any attacks or actions taken against your partner by this group? If so, please provide a detailed explanation of these incidents, including dates, locations, what occurred as well as any available evidence to support your claims.Yes, there has been an action such as a “death threat” to my partner since he was one of the officers who seized some relatively important evidence on the case, such as some USB flash drives containing transactions of this illegal online-gambling. He then urgently filed a blotter report for his safety and protection.Considering the search and seizure operation was conducted over five years ago, [have]the matters arising from the operation been heard and finalised in court? If it is the caseyour partner remains a current witness in this case, provide documentary evidence thatdemonstrates his current status as a witness.The case has just been one of the cases that were exposed and more raids were done ondifferent parts in the Philippines. Illegal online-gambling investigations has been sensationalized in national news and went off to many other cases like bribery on government officials with [Agency 1]. So, my partner as well as his raiding team were on a waiting schedule if needed to be called-in to serve as a witness. But the cases focus to a wider view and went to the higher court such as the Senate of the country upon the order of the Philippine President Duterte. [Details deleted.] A documentary evidence such as the "Incident Report dated [the day in] November 2016" shows my partner [Partner A] as one of the police officer signed on the report, who conducted a search and seizure operation, that kept some important evidences against the illegal online gambling raid.Have there being threats or actions taken against other family members back in thePhilippines, for example your partners children from a previous relationship, or yourelderly mother? If so, provide details of these threats or actions, including dates, whatwas said, how it was communicated (for example; in person, telephone, email) or whatoccurred as well as any available evidence to support your claims.No, there are no threats taken against my partners' children as they have been living mostlywith their biological mother because it was my partner who came in and live with me. I am justgrateful that my elderly mother did not have any undesirable actions until she passed away lastyear. She was just so blessed to see and visit spectaculars places in your wonderfulcountry such as the world's famous Opera House and the historical Parliament House inFebruary of 2018. It was only my husband who directly received a 'death threat' from theChinese group as it was relayed to him in person by his co-police officers in 2018 uponreporting to the [Department 1] [named] office at [Town 1], Philippines. He reported the incident immediately and filed a blotter report for safety and protection. Copy attached herewith.You claim that your partners police co-workers have warned you against returning tothe Philippines. Could you provide details of these warnings, including dates, what wassaid, how it was communicated (for example; in person, telephone, email) as well as anyavailable evidence to support your claims.It was on a telephone conversation that my partner was warned by his police co-workers. It waswhen we returned to spend the Christmas holiday here with my children in 2018. They told himthat a suspectful person went and asked the building guards if my partner, police officer[Partner A], is already back in the country. Again, the building guard was told the same message relayed to him which said "[Tagalog script] Chinese'' (in English: "Do NOT mingle with the Chinese'', pertaining to those involved in the conducted raid on illegal online-gambling). I think the suspectful individual might be a hired-killer, because after the raid there was a time when my partner mentioned to me that the Chinese were after the USB flash drives seized from the police operation conducted on the raid. He said the flash drives might contain the illegal-gambling bank transactions. The police operation raid on search and seizure last [the day in] November 2016 at [Location 1] was coordinated with my partner and his group and was filed with an Incident Report as attached below.• Provide a copy of the police blotter report you made to the [Department 1].(SEE ATTACHED FILE)Relocation in the Philippines.I was born and grew up in my home region in Angeles City, Pampanga. And I feel so grateful tobe a good cook since our region, Pampanga, holds the title of being the Culinary Capital of thePhilippines. During the earlier times Pampanga was a quiet and peaceful place to live, not tomention other bountiful places for producing crops and harvest in some local areas of Pampanga.My parents and my children were born and raised in this reposeful region, so never in my mindhave I thought of moving to other regions like Manila, Cebu or Davao. It is far from my imagination to live in this faraway place and just leave my widowed [age] year old elderly mother alone in Pampanga during that time, because my father died in December of 2014.Yes, the Philippine constitution provides for freedom for internal movement, foreign travel andrepatriation. But I have also thought and eagerly considered the safety and protection of mychildren, as well as the future of my 'only' [age]-year old granddaughter [named] who is now studying and performing well in school at [Suburb 1] NSW, she was recently awarded the 2021 [named award] by the [named official]. Thus, I cannot imagine my only granddaughter who is so smart and brilliant, be deprived of a good future IF NOT protected from this death threat my family is facing brought about by these Chinese individuals who were involved in the police raid on illegal online-gambling.Also, we do not consider living safely in Manila as the nearest place in Pampanga, where illegaldrug trades were rampant; there was even this Philippines' war on drugs by the new President.Because people find it easy to earn money by selling drugs and some consider it as an occupation. (See documentary on YouTube by Sky News, Titled: The Philippines' war on drugs.)Right now, we are just grateful that we are able to seek protection for my family with regards tothe case, and this in turn will all be possible upon your utmost consideration especially for mygranddaughters' perilous future.Delay of LodgementThe decision to apply for a Protection visa was a great matter for me and my partner to consider. Unlike my partner, it took me some time to apply because I still have plans to go back to my country since my widowed elderly-mother was diagnosed with CKD/Chronic Kidney Disease Stage 5 and she has undergone a hemodialysis mostly every day. My family was very much worried about her when we left for the holiday, especially my children who are so close to her. But as days passed she is getting better and healthier as my brother has lived with her. So we talked about the death threat and at that, she helped me decide to apply. She said it is for the sake of my family, my granddaughter, for our safety and protection. She is confident that if we are here, we are protected considering we are far beyond the reach of the criminal syndicate.
Decision
Reasons for decision
She further submitted a copy of a [Department 1], [Section 1], Incident Report, dated [in] September 2018, and signed by one of the officers who also signed the 2016 Incident Report, which contained the following:On or about 1500H [a day in] September 2018, former [Authority 1] [Department 1] [officer] [Partner A] personally appeared at [Department 1] Office anent to the above captioned incident. Based on the statement of [Partner A], last [September] 2018 he went to [Authority 1] Corporate Offices to settle documents pertaining to his early retirement due to health reason. Afterwards he came at the [Department 1] Office to visit his former colleagues when one of his former officemate saw him and informed him that sometime in June 2018 there are some Chinese individuals who were looking for him. He then asked him what they want from him but his former officemate told him that they told the Chinese individuals [Partner A] was no longer working at [Department 1]. The Chinese then left without saying anything back. [Partner A] then think who might be those Chinese individuals looking for him. He then only remember he encountered Chinese individuals was when he was with some [Department 2] personnels who coordinated to this office to served a search and seizure operation at [Address 1] of [Location 1] were they confiscated some computers and laptops. They also apprehended some Chinese individuals for illegal online gambling. At about 1400H [on a day in] September 2018, when [Partner A] was about to go home a building guard on duty of [Department 1] approached him and said, "sir, may sulat po kayo dito, rnatagal na to kaya Jang naka alis kana pala kaya tinago ko Jang 'to." (sir, you have a letter here and I just kept it in case you drop by after your vacation ) [Partner A] then took the letter. [Partner A] then open the letter and it read, "[Tagalog script] Mind your own business [Tagalog script] Chinese. • [Partner A] then immediately reported the threat at [Department 1] Office for blotter purposes for the fear that the Chinese individuals might do some harm to him.Delegate’s Decision The Delegate did not interview the applicants but accepted that the first named applicant’s partner was involved in conducting a police search and seizure operation on an illegal gambling operation and that the first named applicant’s partner and their family has been subsequently threatened as a result of this operation. The Delegate was not satisfied that the applicants’ claims came with the refugee definition. The Delegate was not satisfied that there was a real risk the applicants would be subjected to significant harm on return to the Philippines as the first named applicant’s partner was retired and there was available state protection.Information to the Tribunal Tribunal Hearing, 29 May 2023 The first named applicant appeared before the Tribunal on 29 May 2023 to give evidence and present arguments. The second named applicant did not attend the hearing. The following is a summary of the information provided by the first named applicant at the hearing:a.All the information in her Protection visa application is correct. Since she applied for protection her mother and brother have died in the Philippines. Just her [specified family members] still live in the Philippines but they have their own families.b.Before her daughter gave birth the first named applicant worked in an Australian-Philippine company in [product] sales.c.In the Philippines the first named applicant lived mostly with her mother in Angeles city. Her [Partner A] lived with them from 2013. Her children were also with her. Now her [children] are in Australia.d.Her [siblings] are not having any problems in the Philippines. They lived separately from the first named applicant. One of [them] works in a government department.e.The first named applicant last came to Australia in November 2018. She has not returned to the Philippines since because although she planned to see her mother, her mother said stay there whatever happens because she knew of the threat. f.The threat was to [Partner A] her partner. In the Philippines if a person has a threat then their family and close ties also have a threat.g.The threat was from the Chinese syndicates. In [Location 1] there was a raid of illegal online gamblers. On the next day her partner went in and confiscated the materials. This was in November 2016.h.During that time there were phone calls from somebody unknown asking for flash drives. Her partner talked to a colleague. They were calling asking for a flash drive. They used them for the online gambling. Maybe they were like the brains of the computer or contained the system. The flash drives were inside the compartment of the car which was confiscated. The first named applicant’s partner confiscated the car, his department did this. They did this on the second day of the raid. The cars and things were kept at their office and confiscated until they needed to be used as evidence. She just heard about it because one of her partner’s colleagues received a call. Her partner told her all this.i.The calls were a few months after the raid.j.The Tribunal put to the first named applicant under s 424AA of the Act that her partner did not appear to have mentioned anything about flash drives in his proception visa and review applications. She responded that maybe during the interview it was not asked or he did not speak about it as he didn’t have the time or chance to talk about it.k.The Tribunal asked the first named applicant if she or her partner were ever harmed in the Philippines and she responded no.l.The Tribunal put to the first named applicant that she and her partner stayed in the Philippines for almost two years after the raid and nothing happened to them. She responded yes but she was not aware there was a threat until her partner received it from his former colleagues at the office in August 2018, when he was going to file a retirement plan. He and his colleagues were talking then about retirement because of pending rule changes that meant important privileges would be removed from their retirement plans. They thought they should retire before the new rules were in place.m.Her partner was targeted with the threat because he was the leader in the section in the raid operation.n.The Tribunal put to the first named applicant that in the ‘blotter’ she submitted in which her partner recorded the threat against him there is no mention of a Chinese syndicate, or the raid or a death threat. She responded that the raid was the major thing he had been involved in.o.The Tribunal put to the first named applicant that there seemed to be no indication that her partner was required or called as a witness in any proceedings against the people arrested. She responded that he was in the investigation and intelligence department. Eventually the confiscated evidence would be handed over to the police but she didn’t know if it had been or not.p.Her partner is being threatened because his department was the one that confiscated the materials in the raid. q.The Tribunal asked the first named applicant why her partner did not receive any threat while they were living in the Philippines. She responded maybe because it was more focused on [a suspect, Mr C] going to the [authorities]. She saw that in the news. It was more focussed upon him than his local department.r.There was no threat to her partner until he received the message from his colleagues. The others got the same letter. She does not know if they did or if they were threatened. But sometimes they ask her partner how it is here and if they are going to have protection here. They may feel unsafe.s.The Tribunal asked the first named applicant if any of her partner’s colleagues were ever threatened or harmed in the Philippines. She responded yes, her partner was threatened so if he received harm or threats she thinks his colleagues received threats or harm. She does not know if they did or not. She has not tried to find out because she doesn’t talk to them. Her partner just mentioned some are going to another country and asking if there is protection here. She did not hear anything about them being threatened or harmed.t.The Tribunal asked the first named applicant why anyone would want to hurt her or her partner now when they have not been in the Philippines for almost five years. She responded maybe because it is just five years.u.The Tribunal put to the first named applicant that there is no indication there is any ongoing prosecution arising out of the November 2016 raid and she replied she did not know. [Mr C] is beyond prosecution because of his wealth. If you are a big syndicate you will never be prosecuted. The Tribunal asked why they would bother with her partner or her then and she responded this big group, the big owners, will never be prosecuted. They can hold the government and police. But people like her and her partner are just small. The Tribunal asked why they would need to harm the first named applicant and her partner then and she responded the simple persons under that can be prosecuted. v.The Tribunal asked if there was any indication the [Authority 1] were still holding the confiscated evidence and she responded no. She doesn’t know why the Chinese Syndicate hasn’t yet done anything about it. She saw the laptop at her partner’s office a few months after the raid. They had a room where they had put the evidence. She just saw one laptop. She didn’t see any laptops or anything, her partner just told her it was all being kept in the next room.w.The Tribunal asked why she and her partner stayed in the Philippines until November 2018 if he received the threat in August 2018. She responded personally she didn’t know about it yet. He just told her when they got back to Australia. In August they were busy because her mum was confined in hospital because of her kidneys and water in the lungs, like pneumonia.x.They were not harmed while they remained in the Philippines until November 2018. Her partner remained there because he maybe didn’t take the threat seriously. They usually have these threats and they don’t take them seriously. The Tribunal asked the first named applicant what changed to make him think it was serious and she responded maybe when he talks with his colleagues.y.The first named applicant experienced domestic violence from both her previous partners for a long time. Her previous partner was very violent to her. She stayed with him because of her son but when her son was 16 he told her they should both leave and live with her mother. He was the one who decided. At 16 he grew up seeing this violence and he had his own mind and said let’s go. This was in about [year]. Her then husband gambled all his salary so there was no money for rent or bills. z.After she left her previous partner she would sometimes pass him in the street and felt frightened. He would also send her messages he was watching her. She made a police blotter about him on one occasion. After about three years he returned to his barrio far away and stopped sending her messages. aa.After she began her relationship with her current partner she didn’t have any more problems from her previous partners. Her son has communication with his father, her previous partner. He was planning to get married to another person and the first named applicant said this is the best time. She made a letter saying okay you can get married as long as you leave me alone from then on. Her son has a group messenger with his side of the family and she heard her ex-partner did not get married. So maybe the woman changed her mind because he is still a gambler. Her son grew up with his trauma. Loud sounds make him scared.bb.She has a very good relationship with her current partner. Her family consider him ‘one in a million’.cc.She fears for her granddaughter too because of the threat to her partner. She also fears her granddaughter could be kidnapped and killed and raped because these things happen in the Philippines. She doesn’t know of anyone else it has happened to but she reads of it in the news. They fear for their life and don’t know who will protect them. Everyone in the Philippines is corrupt. But her partner is okay, he was given commendation certificates. When she worked, her colleague’s niece in primary school was raped. She was taken in a car in front of her school.dd.The first named applicant would like temporary protection for five years to give her granddaughter a chance to grow up in Australia. She thinks Melbourne is best for universities. She is very proud of her granddaughter who is [age range].ee.She has heard that the syndicate is offering her partner’s colleagues [a large amount] for the flash drives. She thinks they refused the offer. The Tribunal asked the first named applicant why the syndicate would go after a retired [Authority 1] officer such as her partner if they want the flash drive, instead of an officer still in the unit. She responded yes maybe.ff.Now Duterte is not president they are more drugs in the Philippines. The police are also involved.Post-Hearing Submission
Ratio Decidendi
Legal Principle Established
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Protection visa application The first named applicant is the grandmother of the second named applicant. The first named applicant provided the claims and information in the application. The following is a summary of the claims and information provided in the Protection visa application:a.The first named applicant was born in [specified year] in Angeles City in Pampanga in the Philippines. The second named applicant was born in [year] also in Angeles City.b.The applicants submitted a copy of their Philippines passports.c.The first named applicant has been in a de facto relationship since 2013. Her partner, [and specified family members] are also in Australia. She travelled to Australia with her nephew who is still in Australia.d.She has travelled to other countries including [Country 1] where her brother lives.e.She was employed as [an Occupation 1] in the Philippines, working for [Business 1].f.The applicants came to Australia in November 2018 because they were invited to spend Christmas holidays with their family here.g.In the Philippines the first named applicant, her partner and the second named applicant were threatened by a group of syndicate people related to her partner's work as a police [role 1]. He was informed and warned by his colleagues that there were some Chinese men looking for him and asking for his home address. h.They took the warning seriously and filed a blotter report at the [Department 1]. Revenge is common since her partner will stand as a witness against the syndicate. It was a case on [a day in] November 2016. As the leader of the officers-on-case together with the whole team from the [Department 2] he conducted a search and seizure operation against a group of Chinese occupants doing "illegal online gambling" in some of the villas at the [Location 1] in [Town 1,], Pampanga. i.They encountered big syndicates which operated internationally with online activity. This was in the news in the Philippines and worldwide. It was a serious matter.j.The second named applicant’s [age] year-old grandmother in the Philippines has been diagnosed with Chronic Kidney Disease Stage 5 and is undergoing dialysis. As much as the second named applicant wants to go back to see her she greatly fears for her only grand child's safety. Her mother told her that it is much safer if they stay in Australia for some more time. k.The first named applicant and her family got in contact with her partner’s police co-workers to check if it is safe to go back but they were told not to. Because her partner has [children] from a previous marriage who are studying in a nearby University they were unable to leave until they had the chance for a holiday in Australia.l.The Chinese syndicate will possibly kill all family members related to her partner as this was the information given by the police [officers] in relation to the case. The Chinese were apprehended by the first named applicant’s partner. The death threat by the Chinese syndicate to her family will continue as long as her partner is a witness in the case. The authorities won’t protect the applicants because they are corrupt. There are some authorities who are connected to the syndicate who would do unjustifiable acts for a huge amount of money. m.The first named applicant thinks it is not safe anywhere in her country.