AMO18 v Minister for Home Affairs

[2018] FCCA 3379

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMO18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3379

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – whether Tribunal considered all claims by applicant.

Legislation:

Migration Act 1958 (Cth), ss.5J(2), 5LA, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 36(2B), 36(2B)(b)

Cases cited:

A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545
ABAR15 v Minister for Border Protection (No.2) (2016) 242 FCR 11
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

First Applicant: AMO18

Second Applicant AMR18

Third Applicant AMS18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINSITRATIVE APPEALS TRIBUNAL

File Number: BRG 100 of 2018

Judgment of: Judge Jarrett

Hearing date: 21 September 2018

Date of Last Submission: 21 September 2018

Delivered at: Brisbane

Delivered on: 21 November 2018

REPRESENTATION

Counsel for the Applicants: Mr Young

Solicitors for the Applicants: Stolar Law Pty Ltd

Counsel for the First Respondent: Mr Byrnes

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application for review filed on 27 September, 2018 be dismissed.

2. The applicants pay the first respondents costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 100 of 2018

AMO18

First Applicant

AMR18

Second Respondent

AMS18

Third respondent

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. On 21 September, 2018 I granted the applicants an extension of time within which to commence an application for review of a decision of the second respondent which affirmed a decision of a delegate of the first respondent to refuse to grant them Protection (class XA) visas.  I also made directions for the filing and service of further material consequent upon what emerged during the hearing before me as a new ground of review that the applicants wished to agitate.

2. The parties have now filed and served the material the subject of my directions made on 21 September, 2018.  These reasons relate to the disposition of the applicants’ amended application for review filed on 27 September, 2018.

Background

1. Counsel for the first respondent has set out a comprehensive background to this application in his written submissions filed on 11 September, 2018.  It was not suggested by counsel for the applicants that what was set out in those written submissions was inaccurate or incomplete.  I have drawn upon that background and supplemented where necessary in what follows.

2. The applicants are citizens of the Philippines. The first applicant is the mother of the second and third applicants.  They arrived in Australia on 8 September, 2006 on subclass 457 (Business) visas, as dependants to the first applicant’s husband, who is also the second and third applicants’ father.  The first applicant also has another daughter who is older than the second and third applicants.  She remains in the Philippines under the care of the first applicant’s parents.

3. The applicants had initially applied for protection visas on 26 March, 2010 (in which the first applicant had made claims for protection and the second and third applicants had been dependants).

4. A further application for a protection visa was made on 13 March, 2014 following the decision of SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. In that application, the second and third applicants also made claims for protection. It is this application which is the relevant application for the purposes of this proceeding.

5. The first applicant’s claims in this second protection visa application went to complimentary protection pursuant to s.36(2)(aa) of the Migration Act 1958 (Cth). The second and third applicants’ claims went to both Convention protection pursuant to s.36(2)(a) of the Act and complimentary protection.

6. On 15 June, 2015 a delegate of the first respondent refused to grant the applicants protection visas.  On 26 June, 2015 the applicants applied to the Tribunal for a review of the delegate’s decision.

7. The applicants appeared before the Tribunal at a hearing on 4 October, 2017.  The Tribunal made its decision on 15 November, 2017.

8. In her visa application, the first applicant claimed that she would suffer significant harm if returned to the Philippines by reason of verbal, physical and psychological abuse from her former husband.  The second and third applicants also claimed that they would suffer significant harm from him.  In her first application, the first applicant had claimed that her husband had the influence to hire a killer who was a friend and a godfather of the third applicant.  She feared he would do so and she would be killed.  In the current application for protection, the first applicant updated her claim and included a claimed fear of harm due to her divorce that was granted while she was in Australia and the fact that her former husband had visited her Aunt’s house in January, 2015.

9. As part of her claims, the first applicant asserted that the government in the Philippines would not protect her or her children as they viewed domestic cases as private matters.  Further, the first applicant claimed that her husband was able to bribe police to avoid prosecution.  There were also claims of fears of sexual abuse.

10. The first applicant feared her divorce obtained in Australia in 2011 would not be recognised in the Philippines and the domestic violence legislation in the Philippines would be insufficient to protect her and her children.  The first applicant’s representative submitted that the first applicant’s risk was exacerbated by her gender and status as a single woman in a country that does not legally recognise foreign divorces of Filipino women.

11. The second applicant’s claims for a protection visa included many of the first applicant’s claims as well as a claimed fear that she and her younger sister will be forced to live with her father in the Philippines and will be at significant risk of harm from him.  There are various incidents relied on in this respect.  The second applicant also relied upon her mother’s divorce which she claimed would not be accepted or recognised in the Philippines. Again, the applicants’ representative submitted that the second applicant was at personal risk due to being a member of a particular social group, namely, a family member of a divorcee in the Philippines, among other things.

12. The third applicant made similar claims to those of the second applicant.   The applicants’ representative repeated the submission that, among other things, the third applicant was at risk of harm because she was a member of a particular social group, namely, a family member of a divorcee in the Philippines.

13. The Tribunal provided a background to the application for review, including an explanation of the prior applications for a protection visa and the application following the decision of SZGIZ.

14. The Tribunal then set out the claims of the applicants and the evidence put forward on their behalf.  The Tribunal accepted that the Philippines was the country of reference.  The Tribunal set out a summary of what occurred in the Tribunal hearing and analysed the evidence of the applicants.  This included an overview of the discussion of country information with the applicants and submissions made on behalf of the applicants.  The Tribunal also took evidence from a former nanny of the second and third applicants.

15. The Tribunal analysed country information regarding violence against women in the Philippines, divorce and community attitudes toward single parents, women’s rights, state protection for women and support for victims of domestic violence.

16. In its assessment, the Tribunal accepted that the applicants were subject to physical and emotional violence for the duration of the marriage between the first applicant and her former husband.  The Tribunal noted that that continued until her former husband departed Australia in October, 2009.  However, the Tribunal found that her former husband’s reason for seeking to harm the applicants was personal and not for a Convention reason such as their religion, political opinion or membership of a particular social group.  The second and third applicants’ claims for Contravention-based protection based upon this matter could therefore not succeed.

17. The Tribunal had doubts as to the likelihood of the second and third applicants facing a real chance of serious harm from the first applicant’s former husband if they returned to the Philippines.  This was because of a range of factors, such as the death of the person who the applicants claimed would be hired to kill the first applicant, the lack of an application by the first applicant’s former husband for custody of the first applicant’s eldest daughter currently in the Philippines, that her former husband had not visited this other child in the Philippines and that her former husband is now resident in the United States of America.

18. Notwithstanding these doubts, however, the Tribunal was willing to accept that the first applicant’s former husband continues to hold Philippines citizenship and might now run a business in the Philippines and that he was likely to travel to the Philippines, albeit irregularly.  Having regard to those matters, the Tribunal accepted that the applicants faced a real risk of significant harm from the first applicant’s former husband if they return to the Philippines in the reasonably foreseeable future.

19. The Tribunal considered the availability of State protection and concluded that there would not be a real risk to the applicants from the first applicant’s former husband.  In light of the country information considered by the Tribunal, it expressed its satisfaction that there were measures in place to address domestic violence and provide protection for such victims in the Philippines.  The Tribunal observed that the applicants had not tested the effectiveness of those measures.  It also observed that although there may have been some stigma attached to complaints of domestic abuse, the country information considered by the Tribunal showed that attitudes had changed.  The Tribunal noted that country information indicated that the government was taking such matters seriously and committed resources to those issues.  The Tribunal was not satisfied that the police would fail to act as the applicants claimed.

20. The Tribunal discounted the applicant’s claim that the first applicant’s former husband would hire a contract killer to have her murdered.  It recorded that the person nominated by the applicants for that purpose had died and in respect of the suggestion that another person could be hired, the Tribunal observed that the first applicant, in fact, was not aware of any threats against her.  The Tribunal was not satisfied that the first applicant’s former husband would seek to harm the applicants by hiring somebody to kill them.

21. The Tribunal was not satisfied that the second and third applicants would be abducted by their father and taken to the United States of America because, among other things, the second applicant is an adult (requiring her consent to travel to the USA) and the first applicant’s consent would be required for the third applicant to travel to the USA.  She would be unlikely to give that consent for that purpose.

22. In respect of the first applicant’s fear of harm as a single mother and the second and third applicants’ fear of harm as children of a single mother, the Tribunal accepted that the first applicant was a single mother who divorced in Australia and that divorce was not legal in the Philippines. However, the Tribunal did not accept that the divorce would be recognised in the Philippines (although the first applicant would be considered a single parent and her children would be considered children of a single parent).  The Tribunal referred to country information showing more tolerance in the Philippines and noted that the applicants’ had support from the first applicant’s extended family.

23. Ultimately, although the Tribunal noted that there may be possible discrimination against the applicants, it was not satisfied that the applicants would be targeted or that there was a real chance that they would suffer harm by reason of their gender and the single status of the first applicant.

24. Given the educational and employment background of the first and second applicants, the Tribunal was not satisfied that they would face difficulty in finding employment in the Philippines.  The Tribunal considered country information about this matter.  In respect of the third applicant, the Tribunal was satisfied she had educational opportunities available to her in the Philippines and that her limited language ability in Tagalog would not amount to significant harm.

25. The Tribunal was not satisfied that the applicants would be targeted for being considered returnees from a western country.

26. The Tribunal was not satisfied that the applicants met the criteria for the visa and, accordingly, affirmed the delegate’s decision not to grant the visa.

The grounds of review

1. The applicants’ amended application for review contains four grounds, each of which was pressed before me.  I will deal with each of them in turn.

Ground one

1. The first ground of review is in the following terms:

   1.  The decision of the AAT was affected by jurisdictional error in that the AAT failed to take into account a mandatory relevant consideration, namely that the Applicant belonged to a particular social group and that as a foreseeable consequence she would suffer significant harm if removed from Australia.

2. This ground, as set out in the amended application for review, relates to the first applicant.  The written submissions for the applicants, however, tend to suggest that the ground relates to all three applicants.  The true position was not clarified in oral argument.  Nor does the ground particularise the social group to which it is alleged the applicant belonged that was not taken into account by the Tribunal.

3. The applicants’ written submissions supply some particulars but also raise other issues that are not immediately apparent on the face of this ground of review.

4. The applicants submit that the Tribunal correctly identified that insofar as the first applicant was concerned, her claim was confined to one for complimentary protection pursuant to ss.36(2)(aa), (b) and (c) of the Act which needed to be assessed against her assertion that because she was a divorced woman and a single mother she was at real risk of significant harm in the Philippines by reason of that status. Further, she claimed that she would be at a real risk of significant harm in the Philippines because her former husband would be able to find her there and do her harm, either by himself or through his agents.

5. As articulated in the applicants’ written submissions, the first applicant’s case before the Tribunal was that:

   a)there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to the Philippines, there is a real risk that she will suffer significant harm from her ex-husband; and

   b)as the mother of two daughters who themselves have a well-founded fear of being persecuted for reasons of their membership of a particular social group namely as “family member[s] of a divorcee in the Philippines” who had been the victims of domestic violence by their father.

6. The applicants also submit that the Tribunal correctly identified that insofar as the second and third applicants were concerned their claims were for both Convention protection and complimentary protection assessed against their assertions that they were at risk of harm because they were children of a divorced mother. 

7. From the same written submissions, the case for the second and third applicants appears to be that:

   a)they have a well-founded fear of persecution by reason of membership of a particular social group namely a “family member of a divorcee in the Philippines”, as a young female child of a divorcee and as a victim of domestic violence perpetrated by their father; and

   b)there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to the Philippines, there is a real risk that they will suffer significant harm from their divorced father.

8. The applicants argue that in disposing of the three applications together, the Tribunal conflated the separate applications of the mother and the two daughters without differentiating between each of them individually for the purposes of ss.36(2)(aa), (b) and (c) of the Act in the mother’s case and for the purposes of ss.36(2)(a), 36(2)(aa), (b) and (c) of the Act in each of the daughter’s cases. Further, the applicants argue that “in combining all three cases into one, the Tribunal confused itself and misapplied the test for protection under s.36(2)(a) with the test for complementary protection under s.36(2)(aa), (b) and (c) and vice versa”.

9. The applicants submit that the Tribunal’s finding that there was a real risk of significant harm from the first applicant’s former husband “should have resulted in the Tribunal finding for the Applicants being granted visas by reason of the Complementary Protection provisions of ss.36(2)(aa), (b) and (c) of the Act”. The applicants further argue that the Tribunal “rejected this result by impermissibly bringing into the Complementary Protection test the ex-husband’s reason he ‘may seek to harm them is essentially and significantly a personal reason and not for a Convention reason’.”

10. But this argument misunderstands the Tribunal’s reasons.  As I have pointed out above, the Tribunal’s finding about the reason for which the first respondent’s former husband might wish to harm her or the children was made in connection with the second and third applicants’ claim for Convention protection.  Certainly the language used by the Tribunal in paragraph [92] of its reasons refers to the applicants, but that was because the assertion of harm from the first applicant’s former husband came from all three applicants and that evidence was treated compendiously.  However, it was a matter about which the Tribunal needed to make a finding in respect of the second and third applicants’ claims.  The reasons for which the applicants might have been subjected to harm by the first applicant’s former husband were critical to the second and third applicants’ Convention protection claims.  They were, however, irrelevant to all three applicants’ claims to complementary protection.  The Tribunal clearly appreciated that because it went on to deal with the complimentary protection claims in detail.

11. The Tribunal’s determination in paragraph [95] of its reasons that the applicants were at a “real risk of significant harm” was plainly a reference to the complementary protection claims made by the applicants.  The Tribunal said:

    95.    However, given the applicants’ evidence is that [the first respondent’s former husband] continues to hold Philippines citizenship and may now run a business in the Philippines, the Tribunal accepts that he is likely to travel to the Philippines (albeit irregularly). On this basis and for the purposes of this review, the Tribunal is prepared to accept that the applicants face a real risk of significant harm in the reasonably foreseeable future from [the first respondent’s former husband].

12. Because of the Tribunal’s finding about the first applicant’s former husband’s reasons for wishing to harm the applicants (i.e., that it was not a Convention reason), the second and third applicants’ claims to Convention protection by reason of the risk of harm that their father represented to them was no longer alive.  In respect of this particular type of harm all that remained to be considered was the question of complementary protection.  The language of the Tribunal in paragraph [95] of its reasons reflects that.  There was no conflating by the Tribunal of the terms “serious harm” and “significant harm” as the applicants now argue. 

1. The applicants argue that the Tribunal did not properly address the Convention ground relied upon by the second and third applicants that they were members of a particular social group, namely a family member of a divorcee in the Philippines.  This matter can only be referable to the second and third applicants because the first applicant did not have an application based on Convention grounds (s.36(2)(a)) on foot.

2. The applicants point out that “The Tribunal only refers to “membership of a particular social group” on five occasions….”.  However that the Tribunal referred to that demonstrates that the Tribunal was alive to the necessity to assess the applicants’ claims against the relevant social groups to which they claimed to be members or which, were raised squarely on the material.  The Tribunal recorded the social groups to which the second and third respondents claimed to belong in its reasons.  I have set out the relevant extracts above.  Specifically, at [30] and [32] the Tribunal expressly recognised the claims that the second and third applicants were at personal risk because of “membership of a particular social group”, “family member of a divorcee in the Philippines”.

3. As the applicants point out in their written submissions:

   In this case of the two daughters the requirement of a causal nexus between the fear of persecution and one of the five Convention grounds in the Refugees Convention was “membership of a particular social group” being ‘family member of a divorcee in the Philippines’ who as young women (the youngest a child) had themselves been the victims of domestic violence, as was their mother, perpetrated by their divorced father.

4. The Tribunal found that each of the applicants were the victims of domestic violence perpetrated by the first applicant’s former husband. 

5. It accepted that divorce has been forbidden under the Philippines Civil Code since 1950 because of the influence of the Catholic Church in the country.  Contrary to the applicants’ submissions, it did not accept that there is social stigma against single parents because of the ‘influence of Conservative Catholicism in The Philippines’.  Rather, the Tribunal noted (footnotes omitted):

   The Tribunal has considered a range of information as outlined above which finds that there are indications that Philippine society is becoming more tolerant and accepting. In an advice from the Department of Foreign Affairs and Trade (DFAT), dated 20 November 2002, the issue regarding the ‘influence of Conservative Catholicism in The Philippines’ and its relationship to the social stigma against single parents was discussed. However, according to local media, more than 37 percent of the 1.78 million babies born in The Philippines in 2008 had been to unmarried mothers. According to a census office, this was 12.5 percent higher than the previous year and compared with a two percent increase for all births. The Tribunal has not seen more recent evidence that indicated this trend had reversed.

6. The applicants also point out that the Tribunal:

   115. … accepts that country information indicates that some women may suffer serious or significant harm in the Philippines. The Tribunal has noted above that the applicants have family in the Philippines and is satisfied that the applicants would be provided support and protection by their immediate and extended family. The applicants have not claimed that they would be turned away but have essentially claimed that it would place them in difficulties to be expected to support them as they have limited financial means.

   116. The Tribunal has considered the country information and referred to this during the hearing and accepts that [the first applicant] may face a level of discrimination as a single mother if she were to return to the Philippines and accepts there is a disproportionate risk of harm to women and children generally in that country.

7. The Tribunal then said:

   117. However, the Tribunal must consider whether there are substantial grounds for believing that there is a real risk the applicants will suffer significant harm or whether Cloie and Clare have a well-founded fear of being persecuted for these reasons if they return to the Philippines.

8. The applicants argue that by this paragraph, “the Tribunal wrongly puts the considerations of the various claims in the alterative using the word “or” instead of what should be the word “and”.”  I confess to not quite understanding that submission because it is apparent from the terms of [117] that the Tribunal was stating that it needed to consider both the Convention-based protection application made by the second and third applicants (a well-founded fear of being persecuted) and the complementary protection claims made by all three applicants (a real risk the applicants will suffer significant harm).  They were indeed alternatives.  A positive finding on either of them would have seen the second and third applicants granted the visas for which they had applied.

9. The applicants argue that “the closest the Tribunal came to addressing any aspect of the critical question of “well-founded fear of being persecuted” because of “membership of a particular social group”, is to be found in ten paragraphs ([109] to [119]) under the heading entitled “Fear of harm as women, single mother and children of a single mother” but there is no reference to the claim of the applicants of “membership of a particular social group”, the definition under Article 1A(2) or the proper legal test to be applied.”

10. But that is precisely what the Tribunal was considering in those paragraphs. The Tribunal considered the claims made by reference to the first applicant’s divorce. The applicants argue that the Tribunal found that they would not “fear harm, discrimination and shame” arising from the divorce because divorce is not legal in the Philippines. However, I accept the first respondent’s submissions that the applicants’ submissions misconstrue the Tribunal’s reasons at [110]. In that paragraph the Tribunal said:

    110.  In relation to [the first applicant]’s claim to fear harm, discrimination and shame as a single mother in The Philippines and because of her status as a divorced woman, the Tribunal accepts that divorce is not legal in the Philippines. On this basis, [the first applicant]’s Australian divorce will not be recognised in the Philippines and as such, the Tribunal does not accept that the applicant will be considered a divorcee in the Philippines or that Cloie or Clare will be considered ‘children of a divorcee’ as put forward by their representative. However, the Tribunal accepts that [the first applicant] is likely to be considered a single parent and Chloie and Clare, the children of a single parent.

11. I accept the first respondent’s submissions that the Tribunal did not find that the first applicant would not fear discrimination or shame.  As I have already recorded, at [119], the Tribunal accepted that the first applicant may face a level of discrimination because of the conservative nature of Philippine society. 

12. The Tribunal did determine that because divorce was not recognised in the Philippines, the first applicant would not be considered to be a divorced person and the second and third applicants would not be considered to be children of a divorced person.  The applicants characterise this finding as “startling”.  Whilst it might well be a finding that other decision-makers would not have made, that is not the test.  It is not a finding that is made without evident or intelligible justification.

13. Thereafter, the Tribunal evaluated the evidence and the country information that it had before it concerning single parents.  In [110] the Tribunal accepted that the mother “is likely to be considered a single parent and [the daughters] children of a single parent.”  However, the Tribunal did not accept the mother “will be targeted as a single mother and [the daughters] will not be targeted as children of a single mother as they have family who may not have extensive resources but who would provide them with some level of support”.

14. The Tribunal expressly considered the question of the applicants’ gender and said that it was “not satisfied that there is a real chance of suffering harm for the reason of their gender in the Philippines”.

15. In [127] the Tribunal concluded:

    127.  Overall the Tribunal does not accept that the treatment claimed by the applicants, namely being looked down on and viewed unfavourably by those in their community for reasons of being a divorced woman, a single mother, children of a single mother, difficulty finding work, or [the second and third respondents’] language ability in Tagalog has the requisite level of seriousness as to amount to serious or significant harm. The Tribunal does not accept that the applicants will be denied access to basic services in the Philippines to the extent that they would be denied the capacity to earn a livelihood or denied the capacity to exist. The Tribunal also does not accept that [the third respondent] will be denied access to education if she were to return to the Philippines.  The Tribunal therefore concludes that the harm feared by the applicants is not persecution within the meaning of the Convention and finds that this type of treatment does not amount to significant harm within the meaning of s.36(2A) or s.5 of the Act.

16. The applicants argue that the overall conclusion in [127] “continues to reveal the conflation error of confusing the tests to be applied for persecution for the refugee protection and the significant harm for the complementary protection”.  But I reject that argument.  Whilst in the final sentence of that paragraph the Tribunal’s conclusion is expressed by reference to “the applicants” having regard to the balance of the Tribunal’s reasons and the very clear examples of it delineating between the claims of the first applicant and second and third applicants it is clear that the Tribunal did not “conflate” the claims as the applicants now argue.

17. In oral submissions, counsel for the applicants further explained that the Tribunal confused and conflated the question of effective State protection that arose in respect of each of the first applicants’ complementary protection claim and the second and third applicants Convention claims.  He argued that the relevant tests were quite different but that the Tribunal did not appreciate that.

18. The Tribunal’s reasons for decision reveal that it discussed with the applicants and their representative a range of country information in relation to State protection for women in the Philippines, support for victims of domestic violence, divorce and community attitudes toward single parents and women’s rights in the Philippines.  The Tribunal pointed out, so that the applicants could comment on it, that the country information indicated that there were a number of legal protections for victims of harm including protection orders; that there were government and non-government agencies that provided support and advocacy on behalf of victims of domestic violence; that the State had legislated to criminalise domestic violence and that generally State protection mechanisms mandated in recent years accommodate women who are victims of domestic violence.  The applicants provided their views about that information.

19. The Tribunal also discussed with the applicants information that it had relating to the kidnapping and abduction of children and adults.  The applicants were given the opportunity to provide their response to that information.

20. The Tribunal’s decision record reveals that it considered a range of country information dealing with violence against women in the Philippines.  It also dealt with country information relating to divorce and community attitudes toward single parents.  It dealt with information in relation to support for single parent households in the Philippines.  It noted that there had been an introduction to the Philippines Parliament of the Solo Parents Bill designed to extend the rights given to single parents under the Solo Parents Act.  The Tribunal recorded that the aim of the legislation was to ease the burden of 14 million solo parents by giving single parents 20% discounts on the purchase of milk formula products, medicines and supplements and diapers and to reduce the high social costs due to the absence of fathers or mothers at home as well as the financial difficulties encountered by single parents.

21. The Tribunal reviewed country information available to it that dealt with women’s rights, State protection for women and support for victims of domestic violence in the Philippines.

22. As I have recorded earlier, despite some doubts, the Tribunal accepted that the applicants faced a real risk of significant harm from the first applicant’s former husband if they return to the Philippines in the reasonably foreseeable future. Having regard to that finding, the Tribunal then turned to consider whether the applicants could obtain State protection such that there would not be a real risk that they would suffer significant harm should they return to the Philippines. That enquiry was relevant in respect of the applicants’ complementary protection claims because s.36(2B) of the Act provides:

    (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.

23. At this point, I should also set out ss.5J(2) and 5LA of the Migration Act. Those sections deal with claims to Convention protection and relevantly, provide:

    5J  Meaning of well‑founded fear of persecution

    (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.

    ...

    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.

24. As to these matters, the Tribunal said (footnotes omitted, my emphasis):

    96.    The issue before the Tribunal is whether the applicants could obtain state protection such that there would not be a real risk that they will suffer significant harm.  Considering the country information outlined above, the Tribunal is satisfied that the Philippines authorities have established a range of measures and are reasonably effective in addressing domestic violence. The Tribunal also notes that although there is corruption within the system, there is nothing in the information provided by the applicants to indicate that the state is unable or unwilling to protect them in their particular circumstances.

    97. Accordingly, the Tribunal does not accept that the authorities would be unable or unwilling to protect the applicants in their circumstances. There is no evidence to show that the authorities have refused to do so. The applicants have not tested this and have not lodged a complaint to the police regarding domestic violence prior to their arrival in Australia. The applicants provided no reason why they could not take advantage of this protection or the judicial system, only that [the first applicant] thought that the country information was “not the reality”.

    98. The Tribunal acknowledges country information referred to earlier, particularly that there are organisations that provide a range of social welfare services for women and children experiencing domestic violence. The government’s implementation of a range of resources to address the incidence of gender-based violence (GBV) is monitored by a range of different government agencies among which are the National Statistics Office (NSO), Department of Social Welfare, Department of Health, Philippine National Police (PNP), Department of Justice, Civil Service Commission and the Commission on Higher Education.  In addition, there are legal protections for victims of harm which indicate that any woman who experienced any form of violence from her husband, live-in partner or persons with whom she had dating or sexual relationship may be issued a protection order to prevent the latter from inflicting further acts of violence on her and her children.

    99. As outlined above, all temporary protection orders and permanent protection orders issued under RA 9262 are enforceable anywhere in the Philippines. Violations are punishable by fines and/or imprisonment and violations under the Anti-Violence Against Women and Children (VAWC) Law have seen charges against perpetrators pressed and violations punished to a level higher than similar acts in the Revised Penal Code, making that law one of the most punitive against gender-based violence in Asia.

    100. The Tribunal notes that [the first applicant ]stated that she did not report her husband to anyone previously because it was embarrassing. While the Tribunal accepts that there may have been or continue to be a ‘stigma’ or societal discrimination attached to the issues of marriage, divorce and domestic violence in the Philippines, country information above also indicates that attitudes are changing. Country information also indicates a considerable focus on this issue and reports of prosecutions.

    101. The Tribunal has considered the applicants’ claims that state protection is only temporary help because they don’t have the resources and that the Philippines is a developing country with a lot of crime so the country cannot take care of domestic violence issues.

    102. In relation to the overall effectiveness of authorities in the Philippines, as noted earlier, the Tribunal relies on country information showing that the Philippines’ state protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. Police and indeed the government have been making a concerted effort since at least 2008 to protecting the rights of women and children against domestic violence and there is no evidence that the police have refused the applicants any assistance.

    103. The country information indicates the government has taken this issue seriously and has committed significant resources to do so. This in the Tribunal’s view demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicants by the Philippines State, that protection is durable and that the Philippines State is willing and able to offer such protection.

    104. Overall, on the available evidence, the Tribunal is not satisfied that the police have failed to act or would fail to act if requested to offer the applicants’ protection from [the first applicant’s former husband]. On the basis of the available evidence, the Tribunal is satisfied that effective state protection is available to the applicants.  Therefore, the Tribunal finds that [the second and third applicants] do not have a well-founded fear of persecution due to the state failing to protect them from their father and that none of the applicants face a real risk of significant harm from [the first applicant’s former husband] because effective protection measures are available to them.

1. As counsel for the applicant argued, at the commencement of this passage, the Tribunal identified the test it was to apply to determine whether there is taken not to be a real risk that a noncitizen will suffer significant harm in a country: s.36(2B)(b) of the Act. He argues that as the Tribunal proceeded, it then conflated the test under that section with determining whether there was effective protection measures for the purposes of s.5LA. He argued that along the way, the Tribunal conflated the two tests in an impermissible way because they are quite distinct.

2. I accept that the two tests are different. The test provided for by s.36(2B)(b) is directed to a determination of whether the particular applicant under consideration could obtain from an authority of the relevant country protection such that there would not be a real risk that the noncitizen will suffer significant harm. That is to say, it is a test which is focused upon whether that particular applicant could access protection. Counsel for the applicants argued that the test specified by s.5LA “just applies generally across-the-board” there was no reason to look at the circumstances of individual applicants if one was considering the test under s.5LA.

3. But the two tests are separate, they are to a large degree informed about findings and conclusions reached about the same matters.  The Tribunal’s reasons indicate a detailed consideration of the relevant requirements of each of the tests and conclusions about them.

4. This ground of review does not demonstrate any jurisdictional error.

Ground Two

1. Ground two is in the following terms:

   2. The decision of the AA T was affected by jurisdictional error in that the AAT failed to take into account mandatory relevant considerations, namely that the Country Information available to the AAT was used selectively in dealing with violence against women in the Philippines. Further the Country Information clearly states that the state does not have the resources to adequately protect women from abuse.

2. As with ground one, the applicants’ written submissions tend to stray away from the ground that is particularised in the ground of review.  To the extent that the pleaded ground of review suggests that the Tribunal used country information “selectively” the complaint has no substance.  The choice and assessment of country information is a matter entirely for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13].

3. The applicants argue that “While the analysis of the country information suggests that as a matter of law and programs the government of the Philippines would not condone or tolerate abuse of women, no conclusion is reached by the Tribunal that the state refuses or is unable to offer adequate protection to the Applicants.”  That submission is entirely correct.  The Tribunal did not reach a conclusion that the State refuses or is unable to offer adequate protection to the applicants.  As to State protection to the applicants the Tribunal concluded:

   102. In relation to the overall effectiveness of authorities in the Philippines, as noted earlier, the Tribunal relies on country information showing that the Philippines’ state protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. Police and indeed the government have been making a concerted effort since at least 2008 to protecting the rights of women and children against domestic violence and there is no evidence that the police have refused the applicants any assistance.

   103. The country information indicates the government has taken this issue seriously and has committed significant resources to do so. This in the Tribunal’s view demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicants by the Philippines State, that protection is durable and that the Philippines State is willing and able to offer such protection.

   104. Overall, on the available evidence, the Tribunal is not satisfied that the police have failed to act or would fail to act if requested to offer the applicants’ protection from [the first respondent’s former husband]. On the basis of the available evidence, the Tribunal is satisfied that effective state protection is available to the applicants. Therefore, the Tribunal finds that [the second and third applicants] do not have a well-founded fear of persecution due to the state failing to protect them from their father and that none of the applicants face a real risk of significant harm from [the first respondent’s former husband] because effective protection measures are available to them.

4. These paragraphs demonstrate that the Tribunal addressed:

   a)whether the daughters would be persecuted by non-state actors for a Convention nexus of belonging to a particular social group namely a “family member of a divorcee in the Philippines”, as a young female child of a divorcee and victim of domestic violence by their divorced father; and

   b)harm perpetrated by non-state agents may amount to persecution if the state condones or tolerates it, refuses or is unable to offer adequate protection.

   The conclusions of the Tribunal that there was adequate State protection that would be effective in the circumstances described by the Tribunal dealt with these claims.

5. These paragraphs also demonstrate that the Tribunal did more than consider whether the Philippines merely had “substantial legislation and law enforcement measures in place that would provide support and protection”.  It evaluated the effectiveness, or the apparent effectiveness of those measures by reference to the country information that was available to it.

6. The Tribunal did not commit the types of errors identified in ABAR15 v Minister for Border Protection (No.2) (2016) 242 FCR 11 or A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545.

7. This ground of review does not identify any jurisdictional error.

Ground Three

1. This ground is in the following terms:

   3. The AAT had enjoyed the advantage of seeing and hearing the Applicant give evidence at a Hearing, but did not take into consideration the draft submissions made by the Ministerial Intervention Unit to the Minister in 2013 which contained a number of missing salient facts and inaccuracies which if presented accurately at that time would have seen the Applicant being granted her Protection Visa.

2. It is entirely unclear what this ground is intended to mean.  The applicants’ written submissions in support of it are as follows:

   71. At paragraph 4 of the Tribunal referred to: “ …a Ministerial intervention request was initiated with outcome “not considered” on 11 February 2014”. It is open to infer that the Tribunal by stating this fact had the Submission from the Ministerial Information Unit (MIU) to the then Minister, the Hon. Chris Bowen in 2011 which was on the Departmental file.

   72. The Tribunal referred to the RRT decision record of 22 October 2010, paragraph 33. It is open to infer because of para 71 above, that the Tribunal had before it the Application submitted by RAILS for Ministerial Intervention dated 28 January 2011.

   73. The submission by the MIU to the then Minister contained missing salient facts and inaccuracies. The MIU concluded in its submission to the Minister that the preferred option was that the Department considered that it may not be appropriate to intervene in this case. It was because of this submission that the Minister, the Hon Scott Morrison did not consider the request for intervention more than three years later.

   74. Further correspondence to the Minister, the Hon Scott Morrison from RAILS on 7 November 2013 described the missing evidence provided by the MIU to the Minister. The Tribunal in its decision chose to not read this submission or in the alternative ignored this submission to arrive at its decision.

   75. By not considering the submission to the Minister the Tribunal failed to take into account a relevant consideration.

3. In response, the first respondent submits (footnotes omitted):

   Legal principles – consideration grounds

   45.    A decision-maker’s failure to take into account mandatory relevant considerations may amount to an abuse of discretion entitling a party to seek judicial review. Such a complaint may only be made out if the decision-maker fails to take into account a relevant consideration it was bound to take into consideration in making that decision.

   46.    Whether a mandatory relevant consideration has been overlooked is a question of fact and degree in the particular circumstances of the case. As above, there is no obligation to refer to all items of evidence.

   47.    There is a distinction between what is a “relevant consideration” on the one hand and a fact on the other hand (or an assertion of fact or evidence put forward in support of an assertion of fact). The latter is not a “relevant consideration”.

   48.    The failure to refer to a matter is potentially capable of supporting an inference that the Tribunal did not consider it. However, the Applicants must do more than point to such a failure. The onus rests on the Applicants to establish, on the balance of probabilities and having regard to all of the evidence and other material before the Court, that it is appropriate to draw such an inference. The Applicants must demonstrate on the balance of probabilities that the Tribunal did not consider the matter. This inference is not to be drawn lightly.

   49.    There is no obligation on the Tribunal to: (i) refer in its written reasons to every piece of evidence and every contention of the Applicant; (ii) to comment on every item of material before it to the extent of saying why it rejected a particular item, or attributed less weight to it than to another or to comment on each criterion that must be considered; (iii) conduct a “line by line refutation” of the evidence; or (iv) “laboriously evaluate seriatim” each of the circumstances.

   50.    In protection visa cases, the Minister accepts that the relevant considerations that the Tribunal was required to take into account depended on the claim or claims that the Applicants have made. Such claims must be considered as discussed in Peko-Wallsend.

4. I accept these submissions for the first respondent.  It is difficult to understand how, even if the submission by the ministerial information unit to the then Minister was before the Tribunal and even if that submission had “missing salient facts and inaccuracies” that those matters were not otherwise addressed in the applicants’ submissions and material to the Tribunal for the purposes of its review.  No doubt, viewed individually and in isolation, much of the material before the Tribunal would not have painted a complete picture of the applicants’ claims or the evidence upon which they relied to make good those claims.

5. This ground of review reveals no jurisdictional error.

Ground Four

1. This ground is in the following terms:

   4. The Second Respondent made a jurisdictional error by failing to exercise jurisdiction in that it did not make a relevant finding under s.36(2B)(b) of the Migration Act 1958 (Cth).

2. This ground was added to the applicants’ application because during the course of oral argument before me I considered that the matters being contended for by counsel for the applicants raised a matter of which was not otherwise within the grounds set out in their application for review.  I insisted upon an amended application specifying this ground and to which both parties had the opportunity to make further written submissions.

3. I have set out [95] of the Tribunal’s reasons above. The language used by the Tribunal in [95] echoes the words of s.36(2)(aa) of the Act – the complementary protection provision. By reason of the Tribunal’s findings in that paragraph, the Tribunal was obliged to consider s.36(2B)(b) of the Act (which I have also set out above).

4. The Tribunal assessed the protection available to the applicants from the authorities in the Philippines having regard to the applicants’ circumstances.

5. The Tribunal’s reasons demonstrate that it was alive to the applicants’ contentions regarding the effectiveness of protection available to them and it put to them the information it had that suggested they have the benefit of State protection:

   56. The Tribunal discussed a range of country information with the applicants in relation to state protection for women in the Philippines, support for victims of domestic violence, divorce and community attitudes toward single parents and women’s rights in the Philippines. The Tribunal noted that the country information indicates that there are a number of legal protections for victims of harm including protection orders; that there are government and non-government agencies that provide support and advocate on behalf of victims of domestic violence; that the state has legislated to criminalise domestic violence and that generally state protection mechanisms mandated in recent years accommodate women who are victims of domestic violence. The Tribunal noted that while the number of cases reported is increasing, hose cases are being investigated and convictions have been obtained. In particular, the Tribunal noted that violations under the Anti-Violence Against Women and Children (VAWC) Law have seen charges against perpetrators pressed and violations punished to a level higher than similar acts in the Revised Penal Code, making this law one of the most punitive against gender-based violence in Asia.

   57. The Tribunal asked the applicants why they could not avail themselves of these measures in their circumstances.  [The first applicant] said that the country information is just documents and it is not the reality.  [The first applicant] said that the Philippines government doesn’t give money to these things because it is focussed on the drugs issue and not family matters. The Tribunal asked [the first applicant] if she was aware of any of the measures available in the Philippines including protection orders and the support of non-government organisations. [The first applicant] said that it is not the reality. She said they will laugh at her and say it is a family matter.  [The first applicant] also said that it is only temporary help because they don’t have the resources. The Tribunal asked [the first applicant] if she could take advantage of the support of her family to assist her.  [The first applicant] said that they have their own expenses. The Tribunal noted that the relationship she described with her family didn’t sound like they would let her come to harm.  [The first applicant] said that her former husband can do what he wants because he has influence and the situation is the same for her daughters. [The second applicant] told the Tribunal that the Philippines is a developing country with a lot of crime so the country cannot take care of domestic violence issues.

6. At [96] the Tribunal said:

   96.    The issue before the Tribunal is whether the applicants could obtain state protection such that there would not be a real risk that they will suffer significant harm. Considering the country information outlined above, the Tribunal is satisfied that the Philippines authorities have established a range of measures and are reasonably effective in addressing domestic violence. The Tribunal also notes that although there is corruption within the system, there is nothing in the information provided by the applicants to indicate that the state is unable or unwilling to protect them in their particular circumstances.

7. A consideration and analysis of these matters was plainly relevant to a consideration of both of the matters raised by ss.5LA and 36(2B)(b) of the Act.

8. Then, at [97] the Tribunal said:

   Accordingly, the Tribunal does not accept that the authorities would be unable or unwilling to protect the applicants in their circumstances. There is no evidence to show that the authorities have refused to do so. The applicants have not tested this and have not lodged a complaint to the police regarding domestic violence prior to their arrival in Australia. The applicants provided no reason why they could not take advantage of this protection or the judicial system, only that [the first respondent] thought that the country information was "not the reality”.

9. I accept the first respondent’s submission that these paragraphs demonstrate that the Tribunal had regard to the applicants’ personal circumstances on the issue of the adequacy of available protection.  It is clear by these paragraphs that the Tribunal was concerned to understand how the protection would work in the applicants’ circumstances.  In doing so, it had regard to the applicants’ circumstances.  The Tribunal’s reasons reveal that it was not merely concerned with the system in place in the Philippines.

10. The applicants argue that where s.36(2B)(b) is engaged it requires more than mere consideration. It requires “a finding after an assessment about the level of protection as it affects the Applicants”. They argue that the Tribunal made no such finding and what the Tribunal said in [104] of its reasons is insufficient for that purpose.

11. The applicants argue that s.36(2B)(b) requires “satisfaction, not simply that there is protection, but that protection is such that they would not be a real risk of significant harm to the persons whom the Tribunal had already determined faced a real risk of significant harm”. It is convenient to set out [104] again (my emphasis):

    104. Overall, on the available evidence, the Tribunal is not satisfied that the police have failed to act or would fail to act if requested to offer the applicants’ protection from [the first respondent’s former husband]. On the basis of the available evidence, the Tribunal is satisfied that effective state protection is available to the applicants. Therefore, the Tribunal finds that [the second and third applicants] do not have a well-founded fear of persecution due to the state failing to protect them from their father and that none of the applicants face a real risk of significant harm from [the first respondent’s former husband] because effective protection measures are available to them.

12. The applicants argue that [104] “principally relates to the persecution claims of the two daughters not the complimentary protection provision. The finding is that the two daughters do not have a well-founded fear of persecution due to the State failing to protect them.” But as the text of [104] shows, it is not limited to the persecution claims of the second and third applicants. It deals both with their persecution based claims and the complimentary protection claims. The emphasised portion of [104] above supplies the necessary finding under s.36(2B)(b) of the Act to engage the deeming effect of that subsection.

13. This ground of review does not reveal any jurisdictional error.

Conclusion

1. The amended application for review relied upon by the applicants does not demonstrate that the Tribunal’s decision is affected by jurisdictional error.  In those circumstances, the application must be dismissed with costs.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 21 November, 2018.

Date: 21 November, 2018