2317639 (Refugee)

2317639 (Refugee) [2024] AATA 614 (9 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2317639
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Mark Oakman
DATE:9 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 January 2024 at 3:22pm
CATCHWORDS
REFUGEE – protection visa – The Philippines – witness to killing of chief of police – fear of harm from chief’s family, who claim applicant’s father responsible for failing to protect him – worked in third countries, then threatened after returning – physical health and medication – inconsistent claims and evidence – passage of time – no approach to family or threats or harm to wife and children – long period as unlawful non-citizen and delay in applying for protection – country information – general economic conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 56, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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 30 October 2023 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 citizen of Philippines, applied for the visa on 15 October 2023. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 13 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The applicant provided a copy of his Filipino passport. He stated in his protection visa application that he was a citizen of the Philippines and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of the Philippines. The Philippines is the receiving country for the purpose of this assessment.
Migration history
The applicant said he arrived in Australia [in] September 2004 on a temporary visa that was valid until a later date in September 2004. He remained in Australia, overstaying his visa after that time. He lodged an application for a protection visa on 15 October 2023.
Background
According to information given by the applicant in his protection visa application and at the hearing, he is [Age] years old and was born in Cabanatuan City, Nueva Ecija, Philippines. He lived there until 1985 when he moved to [City]. He also lived and worked in [Country 1] (1986 to 1988) and [Country 2] (2001 to 2003). He married in 1984 and he and his wife have two sons and two daughters. His wife, one of his sons and one of his daughters live in the Philippines, his other son and daughter live in [Country 3] and Australia, respectively. His parents are deceased. He has a brother and a sister living in Australia. He is Filipino and Catholic.
He completed high school in the Philippines ([Year] to [Year]) and started but withdrew from [a] course ([Year] to [Year]). In the Philippines he drove a [Vehicle] for a couple of years and worked on, and he and his family were provided with a level of support, from the family’s land where they grew vegetables.
Evidence before the Department
In the protection visa application dated 15 October 2023, the applicant made the following claims (see pages 19-21 of his application), in summary:
·Why he left – he was a witness to a political killing when his father was [Position] of their town in [Location], Cabanatuan City, Nueva Ecija. In [1985] the chief of police of their Barangay (local town), named Mr A was killed by armed men in their house while he was taking refuge and seeking help from his father. Mr A was a very influential man and politically well-connected in their province. After his death, Mr A’s family suspected his father of ratting on him. Members of Mr A’s family formed a gang, called ‘[Gang 1]’, which aimed to kill all those who had a hand in the killing of Mr A. They said that his father failed to protect Mr A and suspected him of dobbing in Mr A to his enemies. He and his father went into hiding in [City], Mindoro but they were found out. He left the Philippines and sought work in [Country 1] to avoid the danger to his life. When he came back, he still received threats to his life. The [Gang 1] had already killed many people, and they became more aggressive when Rodrigo Duterte became president of the Philippines.
·Did he experience harm? - Yes. He received harassments and threats to his life. From the [Gang 1] who have connections to the police.
·Did he seek help after the harm? - Yes. They asked for help from the city mayor of Cabanatuan City, but he told them to avoid the [Gang 1] by leaving the country.
·Did he move to seek safety? - He worked in [Country 1], but it does not accept refugees. He came back to the Philippines, but still experienced the threats, so he left again to nearby [Country 2]. But when he came back to the Philippines, he found out that the [Gang 1] were still hunting him. He came to Australia, found this to be a very peaceful country, so he stayed.
·What he thinks will happen if returns? - He might get killed if not by the [Gang 1], by its enemies who are aware he witnessed the killing of the chief Mr A.
·Does he think he will be harmed or mistreated if he returns? - He knows that he could certainly be killed because the family of the victim are still hunting those who they thought failed to help them. And the killers have also been after him because he was a witness to the crime.
·Does he think the authorities will protect him if he goes back? - The authorities could not help him because the people who want to harm him are well connected and seemed to have a licence to kill from the political powers in the Philippines. He thought after many years in Australia, those people will forget about him, but he heard recently that the situation of vindictive killings are worse than when he last left the country.
·Will he be able to relocate within the country to an area where he won’t be harmed? - Have relocated many times, but they were found out too easily because of the influence of the [Gang 1], and because he is being hunted by both sides, the chief who died and his killers.
The Department wrote to the applicant on 19 October 2023 and requested further information under s 56 of the Act. The Department’s questions and the applicant’s responses (with identity information anonymised) were as follows:
·Q. Did you continue to live in the house of your parents after you were married?
·A. No. I wasn’t living my father’s house but I lived nearby.
·Q. Who were the armed men who killed the [Location] barangay police chief, Mr A, in [1985]? How many armed men were involved?
·A. No I don’t know them. Six people came to my father’s house.
·Q. Why did armed men kill the [Location] barangay police chief in [1985]? Why have you described this murder as a political killing?
·A. I don’t know the reason of killing. People say it’s a political issue.
·Q. Why did they murder the police chief at your house (or at your father’s house, if you lived at a different house)? Who else was at the house at the time of the murder?
·A. I don’t know. I was visiting my parents.
·Q. Who else witnessed the murder? For example, were any of your mother, your wife, your siblings, your neighbours, present at the time?
·A. Only me and my parents.
·Q. What time of day did the murder occur? Describe exactly what happened.
·A. Around 4pm. Police Chief came while six armed men were there and they shot the police chief.
·Q. Why didn’t the armed men who murdered Mr A kill you (and anyone else present) at the same time if they didn’t want any witnesses to the murder?
·A. I don’t know I was in shock.
·Q. You have mentioned that Mr A was seeking refuge at your father’s house, and seeking your father’s help at the time he was murdered. Please explain this statement. Why was Mr A seeking refuge and help from your father?
·A. I don’t know why the police chief came and I don’t know why he was killed.
·Q. Where did Mr A live? Where were his wife, children, and other family members, at the time of the murder? Were any of them at your father’s house when he was murdered?
·A. I don’t know where police chief family is at the time but police chief lives in the village.
·Q. Did your father, or anyone else, call police to the scene of the murder? Did the police conduct an investigation? What was the result of that investigation? Are you able to provide a copy of the police report?
·A. No one call the police everyone’s scared.
·Q. Are you able to provide any newspaper reports about the murder of Mr A? If not, why not?
·A. No.
·Q. I note that your wife was heavily pregnant with your first child at the time of the murder. Did she witness the killing herself? Was she affected by it in any way? If so, how?
·A. My wife was in my house. She was so scared.
·Q. Why did Mr A’s family members think your father was involved in his murder?
·A. Rumours.
·Q. Did the police think your father was involved in Mr A’s murder? Did they arrest your father for the murder? Did the police and judicial authorities prosecute your father for the murder and sentence him to a term of imprisonment for the murder?
·A. No.
·Q. I have not been able to locate any country information concerning any group known as the [[Gang 1] or X group]. Are you able to provide more information about this group? Who leads it? Does it go by any other names? Is it a criminal organisation?
·A. No. I don’t know them.
·Q. Who formed the [Gang 1]? How were they connected to Mr A?
·A. I don’t know.
·Q. Has the [Gang 1] killed anyone that they held responsible for the murder of Mr A? Do you have any evidence, such as newspaper reports/police reports?
·A. I don’t know.
·Q. Why did the [Gang 1] blame you in any way for the murder?
·A. Police chief family thinks my father killed police chief.
·Q. How were you and your father able to leave [Location] in order to travel to [City] if the [Gang 1] were intent on killing you and your father?
·A. We left secretly.
·Q. When did you and your father go to [City]? How long did you stay there? Did your mother and your wife go with you? If no, why not?
·A. We left that night. Me and my father. Men’s life were more in danger than women’s.
·Q. You have indicated that you lived at [Location] from [Year] until you came to Australia in 2004. This suggests that you did not go into hiding at [City]. Please explain this discrepancy.
·A. I used [Location]’s address only to hide my address in [City].
·Q. You stated that the [Gang 1] found you in [City]. How did they do so? yourself (sic), and it seems very unlikely that anyone would realistically accuse you now. I therefore invite you to provide detailed comments as to why you think any group, such as the [Gang 1], or the armed men who killed Mr A, would seek to kill or otherwise harm you now, given the lapse of time since these events occurred.
·A. [Gang 1] was looking for revenge.
·Q. You indicated that you lived and worked for a period in [Country 1], and then later in [Country 2]. You returned to the Philippines both times. Why did you return to the Philippines if you had any fears in relation to returning to that country?
·A. Because [Countries 1 and 2] do not accept refugees.
·Q. You have not given any information about your father. Where is he living now? If he is deceased, what were the circumstances of his death? Did he continue to live in [Location] until he passed away (if deceased)? When did he cease being the [Location] [Position]?
·A. He never came back to [Location] until he passed away. He died of [medical condition].
·Q. Your wife and children continue to live in the Philippines. You have not claimed that they have been threatened or harmed in any way since you have been in Australia. This suggests that no-one in the Philippines is currently trying to kill or harm you. Please comment.
·A. I don’t know.
The applicant was not invited to an interview with the delegate.
Evidence before the Tribunal
The applicant lodged his application for review with the Tribunal on 1 November 2023. In emails dated 18 November, 23 November and 19 December 2023, further material (including some additional copies of the same documents) was provided to the Tribunal in support of his application as follows:
·Letter of support dated 17 November 2023 from his brother, Mr B, in Australia, together with identity documents.
·Statutory declaration dated 18 November 2023 from his sister, Mrs C, in Australia, together with an identity document and a bank account statement.
·Sworn statement dated 23 November 2023 from a Mr D, in the Philippines, together with identity documents and a photo of Mr D holding his statement, and a typed transcription of Mr D’s handwritten statement.
The applicant appeared before the Tribunal in person on 13 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.
Analysis, reasons, and findings
The applicant confirmed at the hearing that he left the Philippines because he was in fear as a witness to the killing of Mr A. He fears to return to the Philippines because he has heard from friends in his village that there is still a lot of trouble there, with relatives of the murdered Mr A hunting him. The killers of Mr A were also looking for him. Additionally, he is concerned that, if returned to the Philippines, he would have no one there to support him in relation to his health (he takes medication for high blood pressure and cholesterol) or to support him generally.
The Tribunal did not find the applicant’s evidence credible. In reaching this view I am mindful of the difficulties often faced by applicants for protection, particularly those for whom some period has passed since they departed their country of origin, including factors such as recall problems, misunderstandings in interpreted material, cultural communication issues, or a lack of cohesive narration due to experiencing trauma or the passage of time.
The applicant claims that Mr A was murdered in [1985]. I discussed with the applicant at the hearing that the passage of time since the murder, and the ageing of the persons involved, may raise a concern that any problems, danger, or potential harm from that incident had long since dissipated and so would not be a problem now or in the reasonably foreseeable future. He said he fears from the news he gets that there is still disorder in that place and the searching for him were still the same. Similarly, I discussed with the applicant that the passage of time may raise a concern that about the credibility of the claim that people have continued to look for him unsuccessfully since that time. He said that because he is here that was probably why they have been unable to find him. The applicant said at the hearing that he spoke to a Mr E as recently as September 2023 who told him that the victim’s family were still looking for him and so things were disordered in the village and he shouldn’t return. He said he has spoken to Mr E about once a year since 2004 when he left the Philippines for Australia, and Mr E told him on those occasions that things were still disordered with the victim’s family looking for him. He also said Mr D had recently got in contact with him to tell him that things remained disorderly in the village and not to return home as the people who had killed the chief were looking for him. This was the first time the applicant had spoken to Mr D since he left for Australia in 2004. I do not consider it credible that, given when the murder is said to have occurred, anyone involved in that murder or who was seeking revenge for that murder may still be seeking to kill any witnesses to the murder or to take revenge on those suspected of some involvement in the murder. After the passage of some 38 years from the claimed date of the murder, any such aims or concerns on the part of the murderers and/or the victim’s family would have by now fully dissipated. I do not consider it credible that, notwithstanding the applicant’s claims about what Mr E and Mr D have told him, anyone seeking revenge for Mr A’s death would regularly return to the applicant’s home village to, repeatedly and unsuccessfully, look for the applicant from 2004 through to 2023 or that the murderers would visit the applicant’s home village 19 years after he left for Australia and coincidentally, a month or two before he lodged his protection visa application, to look for him.

Additionally, there are other issues with the applicant’s evidence, as follows:
·At the hearing the applicant confirmed that the information in his protection visa application and in his responses to the Department’s October 2023 questions, was true and correct. However, he provided some inconsistent evidence at the hearing. In his response to the Department’s questions, he stated he didn’t know any of the people who were looking for him or who were in [Gang 1], but at the hearing he identified three members of Mr A’s family who were looking for him (Mr F, Mr G, and Mr H; Mr A’s brother, and two of his sons, respectively). He said in his protection visa application that when he and his father were hiding in [City] they were found by members of Mr A’s family, but at the hearing he said he and his family lived at the same place in [City] from 1985 to 2004, including before and after his trips to [Countries 1 and 2]. He made no mention in his protection visa application or in his responses to the Department’s questions about Mr E or Mr D telling him about the people looking for him. When these issues were raised with the applicant at the hearing, he had no comment to make. These inconsistencies are not a case of the applicant simply providing further information or details, but rather they are not insignificant changes in his evidence on these points. These changes in his evidence reflect poorly on the applicant’s credibility.
·The applicant’s evidence is that his family who still live in the Philippines, had not faced any harm, harassment, or interactions with anyone in relation to the killing or who were looking for him. I do not consider it credible that, if it were true that some people were looking for the applicant for revenge, whether to kill him or otherwise, they would not have approached his family in the Philippines. When I raised this concern with the applicant at the hearing, he said he was unaware of his family experiencing any of those issues and as far as he knew it was only him that they were after. Again, I do not consider it credible that if persons were looking for the applicant over the course of some 19 years after he left the Philippines, they would not have approached his family in the Philippines to at the very least ask about his whereabouts.
·In the initial stages of the hearing, the applicant provided some biographical information about himself and his family, including that his wife and son who were living in the Philippines were living in the same house in Cabanatuan as he had lived in until 1985. Later during the hearing, while discussing Mr E’s warnings about the family of Mr A looking for him in the village, he indicated that Mr E lived in the same village where the applicant had lived until 1985. However, when asked if this was the same village as his wife and son lived in, and he said his wife had moved to another barrio. I do not consider this change in his evidence about where his wife was living, which arose in the context of his discussing people looking for him, to be credible When I raised this concern with the applicant at the hearing, he said he had no comment, and added that he had said his wife and son lived in the same place in Cabanatuan.
·I do not consider it credible that the applicant has been in Australia since 2004 and claims that at least once a year since that time Mr E would warn him that the family of Mr A were still looking for him, but he did not apply for a protection visa until October 2023. When this concern was raised with the applicant at the hearing, he said he had no idea when he arrived how to apply for the visa. I asked if he made any enquiries about options for remaining in Australia from 2004 up until he applied in 2023, and he said he didn’t make enquiries about options as he decided to have a quiet life. I do not consider it credible that, and notwithstanding his irregular immigration status from September 2004 onwards, if his claims that people who he feared wanted to harm him were regularly looking for him back on the Philippines were true, he made no enquiries about options for trying to remain in Australia until around October 2023.
·Some level of corroboration for the applicant’s claims are provided by Mrs C and Mr D. Mrs C in her statement says that she is aware of the applicant’s problems in the Philippines. However, given Mrs C is the applicant’s sister, I do not attach any weight to her evidence on this point. Mr D in his statement confirms the killing of Mr A and that some of Mr A’s family members are still looking for the applicant. However, at the hearing, the applicant claimed that the information about Mr A’s family members looking for him came from Mr E, and that Mr D told him in about September 2023 that the killers of Mr A had come looking for him. Additionally, the applicant said Mr D’s contact with him in about September 2023 was the first time he had been in contact with Mr D since 2004. I consider it more than coincidental, and therefore less than credible, that Mr D would contact the applicant for the first time in some 19 years just before the applicant lodged his protection visa application. Given these issues I also do not attach any weight to Mr D’s evidence.
Overall, and based on the issues identified above with the applicant’s evidence, I do not accept his claims in relation to him and his father being present at the murder of Mr A in [1985]. For the same reasons, I do not accept that members of Mr A’s family, the [Gang 1], the killers of Mr A and/or any other persons were looking for or have continued to look for the applicant, whether to harm him or otherwise. It follows from these findings that I also do not accept that the applicant was of adverse interest to anyone at the time he left the Philippines in 2004, that he has been of adverse interest to anyone in the Philippines while he has been in Australia, or that he may be of adverse interest to, or that he faces a real chance of suffering harm from anyone, if he were to return to the Philippines, now or in the reasonably foreseeable future.
At the hearing, the applicant also raised his concerns that, if returned to the Philippines, he would have no one there to support him in relation to his health or to support him generally.
Country information indicates that opportunities for people from the lower strata of society to find good jobs and advance socially ae constrained, resulting in millions of Filipinos seeking work overseas.[1] The COVID-19 pandemic worsened the incidence of poverty in the Philippines.[2] However, the Philippines economy grew in 2022,[3] albeit many Filipino families rated themselves as poor.[4] Country information also indicates that the Philippines delivers health care through both public and private facilities; the 1987 Philippines Constitution requires the state to make health care available at an affordable price, including free medical care to paupers; and in 2019 (former) President Duterte introduced a Universal Healthcare Act which extended coverage of the national health insurance scheme to all Filipinos. However, many Filipinos still struggle to access adequate healthcare and the quality of healthcare facilities and services are variable, with hospitals in cities tending to be much better equipped and staffed, and offer a wider range of services, than those in rural or remote areas.[5]
[1] ‘BTI 2022 Country Report – Philippines’, Bertelsmann Stiftung, 23 February 2022.
[2] ‘How COVID-19 impacted vulnerable communities in the Philippines’, Fallsen, D, World Bank blogs, 10 November 2021; Pandemic pushes millions into poverty’, Reuters, 17 December 2021; ‘Pandemic pushes millions more into poverty in the Philippines – Government’, Reuters, 15 August 2022; and ‘Marcos declares COVID health emergency over’, Philippine Daily Inquirer, 23 July 2023.
[3] ‘The World Bank in the Philippines – Overview – Context’, The World Bank, 3 May 2023; ‘Marcos declares COVID health emergency over’, Philippine Daily Inquirer, 23 July 2023.
[4] ‘Second Quarter 2023 Social Weather Survey: Hunger rises from 9.8% in March 2023 to 10.4% in June 2023’, Social Weather Stations (SWS), 2 August 2023; ‘First Quarter 2023 Social Weather Survey: Hunger recovers from 11.8% to 9.8%, but still not fully back to pre-COVID-19 levels’, SWS, 11 May 2023; ‘Second Quarter 2023 Social Weather Survey: 45% of Filipino families feel Poor, down from 51% in March; 33% feel Borderline, and 22% feel Not Poor’, SWS, 23 July 2023; ‘First Quarter 2023 Social Weather Survey: Filipino families Self-Rated as Poor steady at 51% since December 2022’, SWS, 7 May 2023; ‘14 million Filipino families consider themselves poor — SWS’, Pinlac, B, Inquirer.net, 8 May 2023.
[5] DFAT, ‘DFAT Country Information Report the Philippines’, 23 August 2021.
As the applicant’s wife and son are still living in Cabanatuan City in what was the applicant’s family home, the applicant will very likely be returning to his family home in Cabanatuan City. At the hearing the applicant gave evidence that he takes medication for high blood pressure and cholesterol; that he wouldn’t have any means to buy the medication in the Philippines; and that his sister (Mrs C) and brother (Mr B) were supporting him in Australia. Both Mr B and Mrs C said in their written material to the Tribunal that they were willing to support the applicant in Australia. I asked the applicant at the hearing if his brother and sister would be unwilling to support him further if he returned to the Philippines. He said they were unwilling for him to go back to the Philippines and wanted him here as a companion. I asked if they supported him here, and even though they would prefer him to stay in Australia, why they would not support him if he had to return to the Philippines. He said it was because of what he fears, what he dreads, with those people looking for him. As discussed above, I do not accept that anyone is looking for, or adversely interested in the applicant in the Philippines. Additionally, his answer was ultimately non-responsive nor was it convincing as a reason why his brother and sister would be willing to support him in Australia but not in the Philippines. Given both his brother and sister stated they were willing to support the applicant in Australia, I do not accept that, if the applicant was returned to the Philippines, his brother and sister would not be prepared to provide him with a level of basic support, if required. Further, his wife and son continue to live in his old family home in Cabanatuan city, with his son working and able to support himself and the applicant’s wife, together with the applicant previously having supported himself and his family there, at a basic level, from the family land. Although I accept that if the applicant returns to the Philippines, he will likely be impacted by the difficulty economic conditions in the country, I have also found that he will be able to access a basic level of support, if required, from his brother and sister in Australia and while living with his wife and son in the Philippines. Therefore, while I accept that he may face some economic hardship, I do not accept on the evidence that the situation is such or that the applicant’s prospects are so limited that there is a real chance that he would be denied the capacity to earn a livelihood of any kind or experience hardship to an extent that would threaten his capacity to subsist or otherwise lead to serious harm. Further, the country information indicates that the economic conditions in the Philippines impact the population and country generally. As such, I do not accept that the economic difficulties or hardship the applicant may face because of the economic situation in the Philippines would amount to persecution for any s 5J reason under the Act.
I accept that the applicant is taking medication for high blood pressure and cholesterol and may seek to access to treatment, if returned to the Philippines. Based on the country information, I accept there may be challenges for the applicant in accessing medical treatment and healthcare due to variable access and service availability issues. However, the report from DFAT, and the other material before me, does not identify discrimination as an issue in relation to accessing the medical health services that are available in the Philippines (with the possible exceptions of those who are from the LGBTI community, persons living with HIV or persons with a disability[6]). I do not accept that any challenges or difficulties the applicant may face accessing treatment for his high blood pressure and cholesterol would involve systematic and discriminatory conduct for one or more of the reasons mentioned in s 5J(1)(a) of the Act.
[6] US Department of State, ‘Country Reports on Human Rights Practices for 2022 - Philippines’, 20 March 2023.
Considering the findings set out above and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to the Philippines now or in the foreseeable future, he faces a real chance of persecution.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
I accept that medical treatment and healthcare is variable in availability and quality in the Philippines and that the applicant may face some difficulty if accessing treatment for his high blood pressure and cholesterol. However, I find based on the country information that any difficulties the applicant may have in accessing any medical treatment does not amount to significant harm. This is due to a lack of capacity and availability of resources rather than an intentional infliction by the Philippines government or any other group or person to cause extreme humiliation or mental or physical pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or severe pain or suffering. It does not amount to torture or an arbitrary deprivation of life or the death penalty. I find that any difficulties the applicant may face in accessing treatment do not amount to significant harm as defined in ss 36(2A) and 5 of the Act.
The country information indicates that the economic hardship in the Philippines arises from the economic conditions impacting the country, rather than an act or omission intended to cause pain or suffering that could reasonably be regarded as cruel or inhuman, severe pain or suffering or extreme humiliation as required by the relevant definitions of significant harm. I find on the evidence that any difficulties or hardship the applicant may experience due to these conditions does not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment within the meaning of the Act. For the same reasons I find that there is not a real risk of the applicant being arbitrarily deprived of his life or the death penalty being carried out.
I have found that the applicant does not otherwise face a real chance of harm in relation to his claims or profile. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[7] he also does not face a real risk of any harm in the Philippines. I find that the applicant does not face a real risk of significant harm in the Philippines.
[7] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There 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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark Oakman
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.
…

[2024] AATA 614

9 January 2024

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