2217070 (Refugee)

2217070 (Refugee) [2023] AATA 3370 (1 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2217070

COUNTRY OF REFERENCE: Philippines
MEMBER:Melissa McAdam
DATE:1 August 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 August 2023 at 10:42am
CATCHWORDS
REFUGEE – protection visa – Philippines – family of police officer – threats from criminal suspects before trial – fear of killing – fear of sexual violence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth (1999) 197 CLR 510
DAT17 v MIBP [2018] FCCA 3750
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
SZSMQ v MIBP [2013] FCCA 1768
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 October 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Philippines, applied for the visas on 20 December 2019.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection visa application
The 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.
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 2016
My 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 Philippines
Since [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 case
your partner remains a current witness in this case, provide documentary evidence that
demonstrates his current status as a witness.
The case has just been one of the cases that were exposed and more raids were done on
different 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 the
Philippines, for example your partners children from a previous relationship, or your
elderly mother? If so, provide details of these threats or actions, including dates, what
was said, how it was communicated (for example; in person, telephone, email) or what
occurred 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 mostly
with their biological mother because it was my partner who came in and live with me. I am just
grateful that my elderly mother did not have any undesirable actions until she passed away last
year. She was just so blessed to see and visit spectaculars places in your wonderful
country such as the world's famous Opera House and the historical Parliament House in
February of 2018. It was only my husband who directly received a 'death threat' from the
Chinese group as it was relayed to him in person by his co-police officers in 2018 upon
reporting 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 to
the Philippines. Could you provide details of these warnings, including dates, what was
said, how it was communicated (for example; in person, telephone, email) as well as any
available evidence to support your claims.
It was on a telephone conversation that my partner was warned by his police co-workers. It was
when we returned to spend the Christmas holiday here with my children in 2018. They told him
that 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 to
be a good cook since our region, Pampanga, holds the title of being the Culinary Capital of the
Philippines. During the earlier times Pampanga was a quiet and peaceful place to live, not to
mention 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 mind
have 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 and
repatriation. But I have also thought and eagerly considered the safety and protection of my
children, 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 illegal
drug 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 to
the case, and this in turn will all be possible upon your utmost consideration especially for my
granddaughters' perilous future.
Delay of Lodgement
The 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.
The first named applicant also submitted a copy of an ‘Investigation Report’ from the ‘[Department 1]’ of the ‘[Section 1]’ dated [the day in] November 2016, with several signatures including ‘[Partner A] Officer on case’, stating the following:
On or about [time] [on the day in] November 2016, TOC duty Desk Officer [named] dispatched the undersigned probers with regards to the request of [Authority 1] Police Assistance of [Officer B] of [Department 2], [Division 1] regarding their search and seizure operation to be conducted at [Address 1] inside [Location 1], [Town 1 area], Philippines.
Upon arrival thereat met with [Authority 1]-[Security], Internal Security of [Location 1] headed by [name], and Operatives of [Department 2] headed by [Officer B]. Atty. [Name] of [Location 1] and duty [Location 1] Manager [name] also arrive at the said villa.
The team is equipped with search warrant [number] issued by [Court 1], [region and branch], duly signed by Presiding Judge [named].
The search and seizure operation is intended for the occupants of [Address 1], [Location 1], [Town 1]: Pampanga for violation of P.O. 1602 (Prescribing Stiffer Penalties on Illegal Gambling,) in relation to Sec 6 of RA 10175 also known as the Cybercrime Prevention Act of 2012".
At around [time] after a short briefing conducted by [Officer B], the search, tagging/labelling started at [Address 1] in which approximately [numbers of specified items] were confiscated during the said operation.
The search and seizure operation was done orderly, lawfully and peacefully.
At around [time the following day], items seized were all loaded on [vehicles] with plate [numbers].
The said search and seizure was terminated at about [time the following day].
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
On 11 June 2023 the first named applicant submitted the following materials:
- A copy of the November 2016 Investigation Report
- A link to a [2016] news item regarding the [named authority] ordering the arrest of the owner of [Location 1], [Mr C] for “bribery and economic sabotage”.
Country Information
DFAT’s most recent ‘Country Information Report - Philippines’, published in August 2021, contains the following:
The Philippine National Police (PNP) is structured as a national police force with specialist commands that cover geographic areas and specific kinds of crime, including child sex abuse, crimes involving women, and counter-terrorism operations. Recruits receive one year of initial training, followed by three to six months of additional training in a specific area. While police are generally competent, they lack resources and capacity, and have poor coordination with other agencies.
… The PNP has systemic problems with corruption and impunity, including petty corruption. Local sources report the extent to which police are corrupt varies throughout the force and depends on the individual officer. Sources note senior police may be more likely to be involved in serious corruption, due to the patronage-driven nature of Philippines politics.
A Philippines newspaper article[1] published [in] December 2016 states:
[Details deleted.]
[1] [Source deleted.]
Another newspaper article[2] published [in] November 2016 states:
[Details deleted.]
[2] [Source deleted].
A January 2017 Philippines [media] report[3] [details deleted]. Another article[4] refers to [Details deleted.] Another article refers to [details deleted].[5]
[3] [Source deleted]
[4] [Source deleted.]
[5] [Source deleted]
The [Location 1] venue was reportedly shut down as a result of the raid in early December 2016 with police being posted at the [venue] to prevent entry.[6]
[6] [Source deleted]
Other articles refer to [further] investigations arising out of the raid. For example:
[Details deleted.] [7]
[7] [Source deleted.]
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants submitted their Philippines passports. On the basis of these documents and the first named applicant’s oral evidence the Tribunal is satisfied they are both citizens of the Philippines. The Tribunal assesses the applicants’ claims against the Philippines as their country of nationality and receiving country.
Credibility
The second named applicant is a minor and did not raise any claims herself.
The first named applicant claims to fear harm to herself and the second named applicant in the Philippines from Chinese nationals or related parties because of her partner’s involvement in a raid by the authorities of an illegal online gambling operation at [Location 1] in November 2016. She also claims to fear the second named applicant will be raped and killed in the Philippines.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
If the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
In SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims’.[8] If a finding is not made with sufficient confidence, the decision maker may need to consider the possibility that that finding is incorrect when determining whether an applicant has a well-founded fear.[9] The ‘what if I’m wrong’ test was further explained by the Full Federal Court in MIMA v Rajalingam. Justice Sackville (North J agreeing) held that it followed from Guo and Abebe that there may be circumstances in which the decision maker must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. The Court held: When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. [10]
[8] SZLVZ v MIAC [2008] FCA 1816 at [25]
[9] See MIEA v Wu Shan Liang (1996) 185 CLR 259; MIEA v Guo (1997) 191 CLR 559; Abebe v The Commonwealth (1999) 197 CLR 510; MIMA v Rajalingam (1999) 93 FCR 220
[10] MIMA v Rajalingam (1999) 93 FCR 220 at 240; see also 255.
However, if a decision maker has no real doubt that its findings as to past events are correct, it is not bound to consider whether its findings might be wrong. In MIEA v Guo (1997) 191 CLR 559, the High Court stated that the Tribunal appeared to have no real doubt that its findings as to the past and the future were correct and held that ‘[g]iven its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong’: at 576. Similarly, the ‘what if I am wrong’ approach is not engaged in circumstances where a decision maker is unable to reach a sufficient state of satisfaction on the evidence to make any factual findings, due to a lack of detail and substance in the applicant’s claims or where the evidence before the decision maker is insufficient or inadequate to establish the relevant facts.[11]
Partner’s Participation in November 2016 Raid
[11] See SZSMQ v MIBP [2013] FCCA 1768 at [58]–[60] and DAT17 v MIBP [2018] FCCA 3750 at [30]–[31], citing MIMIA v VSAF of 2003 [2005] FCAFC 73 at [16]–[17].
The first named applicant’s evidence regarding a raid on illegal online gambling at [Location 1] in November 2016, resulting in the arrets of [many] Chinese nationals is largely consistent within the available media reports about the raid. The Tribunal accepts such a raid occurred in Pampanga in late November 2016.
The media reports refer to [Department 2] and [Agency 1] initiating the raids and utilising their personal largely with the assistance of [Agency 2]. There is no mention of [Authority 1] Police being involved in the raid. However given the raid was on [Authority 1] Territory it is likely the [Authority 1] police would have had some involvement in the raids. As the first named applicant’s partner was an [officer] with the [Authority 1] Police the Tribunal accepts it is plausible he would have a role in the raids. This is further supported by the November 2016 Investigation Report co-signed by the first named applicant’s partner and containing plausible details about the operation he participated in.

The first named applicant’s description of her partner’s role in the raid operation as ‘the leader’ appears exaggerated. The Investigation report shows him as one of four [Authority 1] officers assisting the [Department 2] operatives and others in a ‘search and seizure’ operation in which equipment was seized. The Investigation report shows the operation being led by [Department 2] officials and ‘operatives’. The Tribunal therefore does not accept that the first named applicant’s partner played the leadership role in the operation. However the Tribunal does accept that the first named applicant’s partner participated in the raid of a villa at [Location 1] in Pampanga in November 2016, in which he assisted in the seizure of equipment used in online illegal gambling.
Threat in 2018
The first named applicant claims that her partner received a threat in or around September 2018 from the Chinese whose online gambling operation he helped raid. She claimed that the Chinese were threatening him to obtain a flash drive he had helped seize in the raid. She submitted a copy of a September 2018 Incident report she claimed her partner initiated as a result of the threat.
The first named applicant’s evidence about the threat her partner received was confused, implausible, and inconsistent with her partner’s own evidence.
She spoke of her partner being a witness against a Chinese syndicate but was unable to identify any current or future proceedings or actions being taken against the syndicate or anyone related to the raid. Both the first named applicant and available country information referred to a completed [investigation] into bribery allegations against government officials arising from the November 2016 [Location 1] raids, and [an identified] order for the arrest of [Mr C] which was quickly overturned,[12] as well as deportation proceedings against the arrested Chinese nationals. However there is no evidence that any other actions were taken or that any proceedings are ongoing or proposed. Further, the first named applicant’s partner was just one of a very large number of authorities involved in the raids and he did not have a particularly prominent or high level role. It is not apparent why he would be required as a witness against the syndicate. In view of these concerns the Tribunal does not accept that the first named applicant’s partner was designated or required as a witness in proceedings against those involved in the illegal online gambling operation at [Location 1] in November 2016.
[12] [Source deleted.]
In the first named applicant’s written response to the department’s natural justice letter, and during her Tribunal hearing, the first named applicant claimed that her partner was being threatened because he had seized some flash drives during the November 2016 raid. The November 2016 Incident Report refers to USBs being seized in the search and seizure operation in which the first named applicant’s partner was involved. The Tribunal accepts that USBs or ‘flash drives’ were seized in the operation. However there is no other indication that the online gambling syndicate had any particular interest in these or wanted to retrieve them. The first named applicant’s partner has applied for protection, on the basis of his involvement in the November 2016 raid, and he has made no mention during the visa application and review processes, of people threatening him to obtain any of the USBs seized in the raid. It also makes no sense that syndicate people would threaten and demand these from the first named applicant’s partner given his retirement and frequent presence in Australia. The Tribunal therefore does not accept that anyone was demanding, or using threats or bribes to retrieve, the USBs seized in the November 2016 raids.
The Tribunal notes that the 2018 Incident Report refers to a very brief and vaguely worded letter written in Tagalog telling the first named applicant’s partner not to mess with the Chinese or he will disappear and to mind his own business and not be the business of the Chinese. There is no direct or implied connection to the November 2016 raid in which the first named applicant’s partner participated. Given the raid occurred over a year and a half previously there is no apparent reason why he would receive a threat from the illegal online gambling operators at that time. There is no indication of any trigger for a threat to the first named applicant’s partner in mid-2018. Further there is no indication that the threat was ever acted upon or was in any way meaningful. There is no indication anyone made any other attempt to threaten or harm him, or anyone related to him, in the Philippines.
The Tribunal has concerns about the genuineness of the September 2018 Incident Report in view of the lack of any credible context for such a threat to be made. In view of these concerns as well as the Tribunal’s concerns about the first named applicant’s oral and written statement the Tribunal is not satisfied there was a threat to the first named applicant’s partner in mid 2018.
Fear of Harm in the Philippines
The Tribunal has accepted that in November 2016 the first named applicant’s partner was involved in a raid on an illegal on-line gambling operation at [Location 1] in his role as an [officer] with [Authority 1] in the [Town 1 area].
There is no accepted evidence that anything happened to the applicants as a result of the first named applicant’s partner’s participation in the raid. There has been no action taken against the first named applicant, the second named applicant, the first named applicant’s partner or anyone else in the family. There is also no accepted evidence that anything will happen to the applicants as a result of the first named applicant’s partner’s participation in the raid. Further there is no apparent reason for any action to be taken against the applicants in the Philippines by the people who were subject to the [Location 1] raids.
On the evidence before it the Tribunal is not satisfied there is any real chance of either applicant being subjected to serious or significant harm in the Philippines because of the first named applicant’s partner’s participation in the November 2016 raid.
The first named applicant raised in her hearing that she had two past relationships in the Philippines in which her ex-partners were violent to her. She stated that since leaving them and starting her current relationship she has not experienced any problems from her ex-partners. The first named applicant and her current partner started their relationship in 2013. Given she had no further problem with her ex-partners from at least this time until she finally departed the Philippines in late 2018 the Tribunal is not satisfied there is a real chance of serious or significant harm to the first named applicant from her ex-partners.
The first named applicant raised a claim to fear the second named applicant may be abducted and raped or killed in the Philippines because such things happen in the Philippines. She spoke of a young child of a colleague who had been abducted from her school and raped. The Tribunal accepts that terrible crimes such as this would occur in the Philippines and in most countries in the world. However there is no evidence before the Tribunal that it happens in the Philippines as a rate that indicates a real chance of it happening to the second named applicant. There is no evidence that the second named applicant’s circumstances make her vulnerable to such a crime. The Tribunal considers that the chance of such a crime happening to the second named applicant is remote and that the fear is not well-founded.
The applicants have not raised any other claims to fear harm in the Philippines and none arise on the information before the Tribunal.
The Tribunal is therefore not satisfied there is a real chance the first named applicant will face serious or significant harm from anyone if she returns to the Philippines. The Tribunal is also not satisfied there is a real chance the second named applicant will face serious or significant harm from anyone if she returns to the Philippines.
The Tribunal is not satisfied the first named applicant has a well-founded fear of persecution in the Philippines as defined by s 5J of the Act. The Tribunal is similarly not satisfied there is a real risk the first named applicant will be subjected to significant harm on return the Philippines.
The Tribunal is not satisfied the second named applicant has a well-founded fear of persecution in the Philippines as defined by s 5J of the Act. The Tribunal is similarly not satisfied there is a real risk the second named applicant will be subjected to significant harm on return the Philippines.
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Melissa McAdam
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3370

1 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction