RRT Case No. N94/06730
RRT Reference: N94/06730, 14 October 1996 (REFUGEE REVIEW TRIBUNAL)
REFUGEE REVIEW TRIBUNAL
DECISION AND REASONS FOR DECISION Citation:N94/06730 Applicant: Tribunal: Martin Tsamenyi Date: 14 October 1996 Place: Sydney Decision: The Tribunal determines that the Applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of refugees as amended by the 1967 Protocol relating to the Status of Refugees. The Tribunal remits the application to the delegate to be reconsidered in accordance with the direction that the Applicant satisfies the requirement for the grant of a protection visa that she is a person to whom Australia has protection obligations under the Refugees. 1 Catchwords: Domestic violence; Women as a social groupDECISION UNDER REVIEW
The Applicant is a national of the Philippines. The Applicant arrived in Australia in 1992. The Applicant lodged an application for refugee status with the Department of Immigration and Ethnic Affairs (Department) on 8 July 1994. On 6 November 1994, a delegate of the Minister for Immigration and Ethnic Affairs refused to grant to the Applicant refugee status. The Applicant's application to the Refugee Review Tribunal (Tribunal) was received on 14 December 1994. A private hearing was arranged for the Applicant at the tribunal on 23 September 1996. Section 39 of the Migration Reform Act 1992 (as amended) (the Act) provides, inter alia, that applications for certain kinds of entry permit, including the above, which were made and not finally determined before 1 September 1994 are now to be dealt with as if they were applications for a protection visa within the meaning of the Act as in force on 1 September 1994. Where a decision concerning such applications is subject to review on that date, as in the present case, the application is not finally determined before 1 September 1994 (see s. 5 (9) of the Act) and therefore, for the purposes of this review, the Tribunal will regard the primary applications as applications for a protection visa and the delegate's decisions as decisions to refuse to grant a protection visa. The protection visa was introduced by s. 36 of the Act which came into force on 1 September 1994.JURISDICTION
The Tribunal's jurisdiction arises if a valid application is made under s. 412 of the Act for review of an RRT-reviewable decision; see s. 414 of the Act. The decisions under review that satisfy the definition of "RRT-reviewable decision" contained in s.411 (1) (b) of the Act. It appears from the facts of this case that the application for review is a valid application under s. 412 of the Act. The Tribunal is satisfied that it has jurisdiction to review the decisions, which it therefore regards as decisions relating to applications for a protection visa.
LEGISLATIVE FRAMEWORK
If an applicant satisfies the criteria prescribed by the Act and the regulations for the grant of a visa, the Minister is to grant the visa; if the criteria are not satisfied, the Minister is to refuse to grant the visa: see s.65(1) of the Act. The criteria for the grant of a protection visa are contained in s.36 (2) of the Act and Part 86 of Schedule 2 of the Migration Regulations (the Regulations): see s.31 (3) of the Act and r.2.03 of the Regulations. The criteria to be satisfied at the time of application are that the applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and either makes specific claims under the Refugees Convention or claims to be a member of the family unit of a person who is also an applicant and has made such claims: cl. 866. 211 of Schedule 2 of the Regulations. "Refugees Convention" is defined by cl. 866.111 of Schedule 2 of the Regulations to mean" the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees" (the Convention). The criteria to be satisfied at the time of decision included, inter alia, that the minister is satisfied the applicant is a person to whom Australia has protection obligations under the refugees Convention: cl. 866. 221 of Schedule 2 of the Regulations. As a party to the Refugees Convention and the Refugees Protocol, Australia has protection obligations to persons who are refugees as therein defined. Article A (2) of the Convention as amended defines a refugee as any person who: Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it. The core element of the definition of a refugee under the Convention is well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Convention does not define persecution; however, Article 31 of the Convention makes reference to persons whose life or freedom may be threatened in the sense of Article 1. Similarly, Article 33 of the Convention prohibits the expulsion or return of a refugee in any manner to the frontiers of territories where his " life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." These provisions suggest that, in the minimum, the threat of deprivation of life or freedom would constitute persecution within the Convention. The High Court of Australia considered the meaning of persecution' in Chan Yee Kin v. The Minister for immigration and Ethnic Affairs (1989-1990) CLR 169, at 379 (Chan's case). The judgements of Mason C. J and McHugh J. elaborate on the concept of persecution. The relevant aspects of the judgements are reproduced below. According to Mason CJ:
the Convention necessarily contemplates
some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason (at 388). McHugh J. also notes as follows: The term persecuted' is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for [Convention reasons] constitutes being persecuted'. The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be persecuted' because he or she is a member of a group which is the subject of systematic harassment (at 429). Nor is it a necessary element of persecution' that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct for a convention reason against that person as an individual or as a member of a class, he or she is being persecuted' for the purpose of the Convention" (at 430). Moreover, to constitute persecution' the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute persecution' for the purposes of the Convention and Protocol. Measures in disregard' of human dignity may, in appropriate cases, constitute persecution (at 430). The United Nations' High Commissioner for Refugees (UNHCR) has also defined persecution'. According to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Handbook), "it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights for the same reasons would also constitute persecution" (para 51). The concept of well-founded fear of being persecuted' under the Convention contains both a subjective and an objective requirement. While there must be a subjective fear, there must also be a sufficient foundation for that fear (see Chan's case at 396). An objective examination of the facts is needed to determine whether the fear is justified (Chan's case at 429). A fear of persecution is well-founded if there is a real chance" that the applicant will be persecuted (Chan's case at 389,398, 407 and 429). A real chance" is one that is substantial, as distinct from a remote chance" (Chan's case at 389, also 398, 407 and 429). A real chance of persecution may exist even if there is less than a 50 per cent chance of persecution occurring (Chan's case at 398).THE APPLICANT'S REASONS FOR CLAIMING REFUGEE STATUS
Primary Application
The Applicant's primary application contains the following reasons for her claim to refugee status. these claims are well summarised in the primary decision and are reproduced below).
1. In the Philippines the applicant was politically opposed to the government because the people suffered from the government's corruption and gross inefficiency.
2. In her student days, she joined student activist opposed to the government.
3. The Applicant s [deleted under s431 of the migration Act] was [deleted under s431 of the migration Act] of the Communist Party of the Philippines (CPP) and its armed wing, the New People's Army (NPA). This was always kept a secret within the Applicant's family.
4. About a year and a half before leaving the Philippines the Applicant was very upset to read almost every day in the national newspaper of murders and robberies involving police and the military. As a consequence of this the Applicant felt that the CPP was the only option for the Philippines people. She approached [deleted under s431 of the Migration Act] and asked how she could assist the movement.
5. The Applicant assisted [deleted under s431 of the migration Act] in his work as CPP-NPA [deleted under s431 of the migration Act] in [deleted under s431 of the Migration Act]. This included [deleted under s431 of the Migration Act]. The Applicant travelled to meet CPP-NPA officers and men.
6. In 1988 (corrected [as deleted under s431 of the Migration Act]) the Applicant's [deleted under s431 of the Migration Act] was gunned down by military operatives in a "salvaging' operation. (This meant he was executed instead of being brought to trial).
7. The Applicant was told by the NPA officers that the military had a hit list. The names of both the Applicant's [deleted under s431 of the Migration Act] and [deleted under s431 of the Migration Act] were on the list.
8. The Applicant was asked by the NPA to go into hiding in [deleted under s431 of the Migration Act] because she had no combat experience. Instead, the applicant decided to leave the Philippines.
9. In the Philippines the Applicant is in fear of her life. These claims were considered by the primary decision-maker that concluded that there was no real chance that the Applicant would suffer persecution upon her return to the Philippines.
Application for Review
The Applicant's application for review reiterated the above claims. The Applicant requested the Tribunal to review several aspects of the primary decision. In addition, the Applicant also made additional claims. The Applicant claimed that she has a well-founded fear of persecution for the reason of her membership of a "particular social group-the Filipina women". The details of these claims are as follows:
1. In 1990 the Applicant fell in love with one Mr. [deleted under s431 of the Migration Act], the son of a very powerful and influential men in Manila. For a while, the Applicant enjoyed a very loving relationship with Mr. [deleted under s431 of the Migration Act]. The Applicant moved from her house and lived with Mr. [deleted under s431 of the Migration Act] for one year.
2. Relations between the Applicant and Mr. [deleted under s431 of the Migration Act] began to deteriorate. According to the Applicant's statement: "Things really went well for both of us for a while. Then, things, even [deleted under s431 of the Migration Act] started to change. A dark and violent side, one that still make me bring at the more remembrance of how cruel he could get (sic). [deleted under s431 of the Migration Act] became jealous, even physical at times." Statutory Declaration dated 4 September 1996). The Applicant's boyfriend' temper flared up often. He became jealous of the Applicant's friends. Job and other men the Applicant spoke with.
3. The Applicant decided to terminate the relationship with Mr [deleted under s431 of the Migration Act]. However, Mr [deleted under s431 of the migration Act] became more violent and continued to harass the Applicant. The Applicant detailed several incidents of violent behaviour by the Applicant. These included beating other men who were friendly with the Applicant; fights with the Applicant; threats to harm the Applicant and her family if the Applicant broke up with him; beating up the Applicant; following the applicant everywhere she went and hiring people to pursue the Applicant when she fled to the [deleted under s431 of the Migration Act.] (See statement accompanying applicant's applicant for review).
4. The Applicant claimed that she became extremely distressed by the behaviour of Mr. [deleted under s431 of the Migration Act] and felt unsafe. She was also mentally affected. According to her statement: "I couldn't go out of the house without constantly looking over my shoulder. I had become a nervous wreck."
5. The Applicant's parents made arrangements for her to go to the [deleted under s431 of the Migration Act] Where she would be safe. However, according to the Applicant, Mr. [deleted under s431 of the Migration Act] hired people who pursued the Applicant to the [deleted under s431 of the Migration Act]. The Applicant was forced to return to Manila. In an attempt to ensure her safety, the Applicant's parents arranged for her to come to Australia.
6. The Applicant is very much unwilling to return to the Philippines because she fears that Mr. [deleted under s431 of the Migration Act] would pursue her and harm her. The Applicant claimed that she would not be able to receive police protection because of Mr [deleted under s431 of the Migration Act] family connections and because the authorities in the Philippines condone such treatment of women.
7. The Applicant claimed that she has received information from her friends and relatives that Mr. [deleted under s431 of the Migration Act] is still interested in her.
Evidence in Support of Applicant's Claims
In support of her claims, the Applicant submitted a number of documents.
1. the first is a certificate (dated [deleted under s431 of the Migration Act] from the [deleted under s431 of the Migration Act] of the Philippines National Police, detailing an incident between the Applicant's family and the Applicant's partner.
2. The second document is another Police certificate (dated 26 October 1991) confirming that the applicant had reported being harassed by her partner.
3. The third document is a certificate from the [deleted under s431 of the Migration Act] (dated [deleted under s431 of the Migration Act]) stating that although the Applicant's partner had been involved in a number of criminal activities, charges against him were always dismissed by the police "due to his strong connections, because he belongs to very influential families".
4. The fourth document (dated [deleted under s431 of the Migration Act]) is in the form of a Complaint the Applicant made to the [deleted under s431 of the Migration Act] alleging that she was being harassed by Mr. [deleted under s431 of the Migration Act].
5. The fifth document, from the same office of the [deleted under s431 of the Migration Act] (dated [deleted under s431 of the Migration Act]) is a complaint from the applicant's mother to the effect that Mr. [deleted under s431 of the Migration Act] was threatening the Applicant's family with physical injuries.
6. The sixth is an affidavit from the Applicant's mother (dated [deleted under s431 of the Migration Act]) to the effect that the Applicant was under constant harassment from Mr [deleted under s431 of the Migration Act] and that despite reports to the police, no action was taken because of Mr. [deleted under s431 of the Migration Act] connections.
7. The Applicant also submitted copies of letters from her friends stating that Mr. [deleted under s431 of the Migration Act] had been asking of the Applicant's whereabout.
DETERMINATION OF APPLICANT'S REFUGEE STATUS
The Applicant's claims may be divided into two broad categories: (a) those relating to her involvement with the CPP and the NPA; (b) those relating to harassment by her partner. These claims are considered in turns. Applicant's alleged activities with the CPP and the NPA The Applicant claims that she will be persecuted by the Philippines authorities if she returns to the Philippines because of her past political activities, ie involvement with the CPP-NPA. This was the only claim before the delegate of the Minister at the primary decision level. The delegate examined the Applicant's claims against the country information available and the Applicant's evidence in her application. The delegate concluded that the Applicant's fear of persecution was not well-founded. The delegate's conclusion was based on a number of reasoning, including: (1) the apparent inconsistencies in the Applicant's evidence; (2) the fact that the Applicant was able to obtain a passport to leave the country without arrest showed that she was not considered a security risk by the Philippines authorities; (3) the fact that President Ramos legalised the CPP and later set up the National Unification Commission for peace talks with the rebel groups and gave general and unconditional pardon to the rebel guerillas; (4) the fact that the Applicant's family had not been visited since the Applicant's departure in 1992. The Tribunal agrees fully with the delegate's reasoning. Although the Tribunal has no reason to doubt the Applicant's involvement with the CPP-NPA, the Tribunal is of the view that there is no real chance that the Applicant will suffer persecution because of her alleged activities with the CPP-NPA. Country information available to the Tribunal points to the conclusion that both the CPP and the NPA have declined significantly in influence since the mid-1980s. A 1995 report by Control Risks Information Services gives the following assessment of he NPA.: Since Ferdinand Marcos' fall in 1986 the NPA has become increasingly divided. The group has lost ground militarily and politically: there is no prospect that the movement will be able to overthrow the Ramos government or its successor. Ramos has consistently pushed for formal peace negotiations with the NPA. NPA activity in Manila has declined sharply in recent years. The NPA's main areas of strength have been reduced to the Bicol region of southern Luzon, Samar and south-eastern Mindanao, but the various guerilla factions maintain a low-level periodic attacks against military and civilian targets (Philippines country Profile; control risks group. Prepared by Control Risk information Services, 12 October 1995). The Tribunal has also taken note of reports that in the last month, there have been negotiations for a peace plan between the NPA (along with the CPP) and the government. Further, most commentators agree that the power and influence of the CPP have substantially diminished since the Marcos days. Most recently, the Economist Intelligence Unit stated in July 1996: The communist rebel movement seems doomed to self-immolation as a result of doctrinal and personal schisms-and the appeal of campaigning as a legal political party" (The Economist Intelligence Unit Ltd. EIU Country Forecasts, 1 July 1996).Another report stated:
Another trend that will not be reversed is the erosion of the Communist rebel movement. Since early on in the Ramos presidency, members of the Communist Party of the Philippines (CCP) have been allowed to participate in politics under its banner. Those remaining outside, including those bearing arms in the New People's Army (NPA), have been given by disagreement on strategy and tactics (The Economist Intelligence Unit Ltd. ELU Country Forecasts I July 1996). After reviewing all the evidence before it, the Tribunal is not satisfied that there is a real chance that the Applicant will be persecuted by the Philippine authorities as a result of her support for the CPP-NPA. There is no evidence before the Tribunal that the Applicant's involvement with the CPP-NPA came to the attention of the Philippines authorities and that the Applicant was considered a security risk.Applicant's Additional Claims
As noted above, in her application for review, the Applicant added new claims which were not put before the primary decision-maker. At the Tribunal hearing, the Tribunal asked the Applicant to explain why she did not include the additional claims in her primary application. The Applicant's explanation was that at the time she lodged her primary application, she was advised by an agent she consulted that claims relating to domestic violence were not Convention-related. According to the Applicant, it was only after she sought the advice of another agent following the rejection of her primary application that she was told that her problem with her partner could be a valid reason for the grant of refugee status. The Tribunal has no reason to doubt the Applicant's honesty and sincerity and accordingly has decided to accept the substance of the Applicant's claims that she was repeatedly harassed and abused by her former partner the fundamental question remains whether the Applicant's experiences amounted to persecution and for a Convention reason. The RRT has considered the issue of domestic violence in many of its decisions. All the cases found that domestic violence could amount to a course of systematic conduct which is serious enough to constitute persecution (see eg. RRT N95/07331; N93/01876; N93/02263) for reasons of membership of a particular social group. In N93/02263, the Tribunal considered a claim by a woman from the Philippines and concluded that "Philippina women more clearly reflects the reasons for which the applicant in that case faced persecution". The Tribunal went on to say:" In particular, it reflects the particular social, cultural and legal conditions in the Philippines all of which underpin, and contribute to, the persecution faced by" the applicant in that case. There are certain common features in all the cases decided by the Tribunal which found that domestic violence was a Convention-related ground for the grant of refugee status. These included the severity of the violence, the applicant's relationship with the person perpetrating the violence, the cumulative impact of the applicants' experiences and the degree of state protection available to the Applicant. In the present case, the Applicant claimed that her experiences amounted to persecution for a Convention reason. The examples of persecutory acts by Mr [deleted under s431 of the Migration Act] cited by the Applicant included: beating other men who were the Applicant's friend; fighting with the Applicant; threats to harm the Applicant and her family; beating up the Applicant; following the Applicant everywhere she went and hiring people to pursue her when she fled to the [deleted under s431 of the Migration Act] to hide. In the opinion of the Tribunal, whilst each of the incidents, may not, in themselves, be severe enough to constitute persecution within the Convention, their cumulative impact would appear to have produced a persecutory impact on the Applicant. The Applicant has produced evidence in her statement which clearly indicate this cumulative impact. For example: "I couldn't go out of the house without constantly looking over my shoulder. I had become a nervous wreck."State Protection
Failure of state protection underpins the concept of persecution. Thus Article 1A (2) of the Convention refers to the inability or the unwillingness of a person to avail himself or herself of the protection of his or her country of nationality. The notion of State protection "invites attention to the general issue of a state's duty to protect and promote human rights' (Goodwin-Gill, p.46). on this point, Hathaway observes as follows: The most obvious form of persecution is the abuse of human rights by organs of the state, such as the police or military. This may take the form of either pursuance of a formally sanctioned persecutory scheme, or non-conforming behaviour by the official agents which is not subject to a timely and effective rectification by the state. In such cases, it is clear that the citizen can have n reasonable expectation of national protection, since the harm feared consists of acts or circumstances for which governmental authorities are responsible (Hathaway, The Law of Refugee Status, Butterworths, Vancouver, 1991, pp125-126). Failure of state protection may also arise from the inability of the state to protect the individual against human rights violation from non-state agents. "There is no meaningful protection when a government supports or condones privately inflicted violations of core human rights" ((Hathaway, The Law of Refugee Status, Butterworths, Vancouver, 1991 p.126). according to the Handbook: "Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection" (Handbook, para. 65). In the context of the present case, the issue is whether State protection would be available to the Applicant. It is clear from the Applicant's evidence that she took some steps to seek state protection. According to her evidence, the police were reluctant to assist her partly because of the influence of Mr. [deleted under s431 of the Migration Act] and partly because of her status as a woman. The Applicant claimed that on one occasion she was simply advised by the police to go home and sort out the matter with Mr. [deleted under s431 of the Migration Act]. The Applicant has submitted in evidence copies of reports she made to the Philippines National police concerning the threats and harassment she received from Mr. [deleted under s431 of the Migration Act]. There is also on record a certificate form the [deleted under s431 of the Migration Act] and signed by [deleted under s431 of the Migration Act] to the effect that the Applicant's boyfriend had been involved in many criminal activities, including "physical injury, robbery with homicide and harassment' but that "the case against him are dismissed or not pursued due to his strong connection, because he belongs to very influential families". In determining whether the state protection available to the Applicant will be adequate to protect her from further persecution by Mr. [deleted under s431 of the Migration Act], the Tribunal is guided by other decisions of the Tribunal on the degree of State protection available to domestic violence victims in the Philippines (see RRT decision: B93/00656 and N93/02263). The evidence from decision N93/00656 is very compelling and is reproduced in full below: US Department of State Country reports on Human Rights Practices 1993, Washington, 1994, states that Violence against women, particularly domestic violence, is a serious problem in the Philippines. Wife beating is common, but it is rarely reported, in large part because it is considered a private or family affair. Rape is also a major problem. According to a 1989 report by the national peace and Order Council, police receive one rape case every five hours. The centre or Women's programme suggests that marital rape, which is not a crime under Philippine law, accounts for up to 90% of reported rape cases." The US Department of State report for the previous years states "enforcement of laws against the abuse of women, however, remains inadequate". Information received in May 1994 from Gabriela Commission on Violence Against Women, a non-government organisation (NGO) in the Philippines states that "incidences of domestic violence are first referred to the barangay level (village-level government administrative unit) to be heard by either the Barangay Captain or the Barangay court (if functional) where the couple is usually persuaded to mend their differences. If settlement is not reached, the case may be brought to the police, who again will normally convince the partners to reconcile. According to lawyers we interviewed, restraining orders are seldom resorted to, and only in extreme cases, primarily because of the economic dependence of the women on her husband/partner. Legal action is also too time consuming and very costly, something which only very few women have the time and resources for. "This document went on to state that NGO's extremely limited in what they can do as they do not receive state support. A report from Cordillera Women's Education and Resource Centre, Pasay City in the Philippines reports similarly that "wife battering is the most common yet least acknowledged form of physical abuse. In one of the three communities recently surveyed by Cordillera, women asked at random confirmed that more than 50% of women in their community are battered or had experienced some form of abuse." The Cordillera report goes on to state: "there are two experiences that unite women across culture and class: those of giving birth to new life and fear of male violence. Violence against women is perhaps the most pervasive yet least recognised human rights abuse in the world." (Dacanay, C., Wife Abuse: The Hidden Violence in Women' s Lives, Cordillera Womens Education and Resource Centre, Vol III, NO. 2, May-July 1992). Information form Japan Economic Newswire, 25 November 1992, reports that representatives from women's groups in the Philippines have asked Senators to push for the passage of a bill imposing stronger measures against wife beaters in the Philippines and that the status of the crime be changed from that of a private to a public category so that wife beaters can be pursued by the state. A group spokesperson stated that domestic violence cuts across all social classes and its perpetrators include professionals such as doctors and military officers. A newspaper article in the Canberra times, 19 April 1984, reports that "cheers, jeers and sexist jokes greeted two Bills that proposed life imprisonment to those who commit violence against women, including marital rape, incest and sodomy
..The senate and house of Representatives version would make it a crime for husbands to force themselves on their wives, and remove the burden on their wives, and remove the burden on victims to having to prove their wives, and remove the burden on victims to having to prove their chastity prior to their sexual violation. To some the Bills were a culture shock: "What's wrong with Anal rape?" Congressman Ciriaco Alfelor remarked in one hearing, saying that the fundamental issue was to prevent unwanted pregnancies. "The concept is really revolutionary and there is obvious resistance' retired Judge Congressman Ines Luciano said. Rigoberto Tigiao, in an article in the Far Eastern Economic Review, 21 February 1991 (p.31) states that colonialism has left the Philippines with a male-dominated power structure and a Latino-type culture of machismo which is reflected in legislation and society. This leaves women tied inescapable to abusive husbands, trapped in child-bearing and rearing and locked into economic dependency on males. Domestic violence receives inadequate attention. Dr Socorro Reyes, in a paper read at the Fourth international Philippines Studies Conference in Canberra, states that in the Philippines, marriage is not only a final, irrevocable act but existing laws including the Family code are generally unfair to women as far as sexual fidelity, property rights, parenting, and annulment are concerned. Dr Reyes further stages that violence is endemic in the life of every woman. From birth to Death women's existence is always accompanied by some form of violence, from wife-battering, incest, marital rape and sexual harassment to rape. Violence against women is a violation of human rights and should be the subject of both national legislation and international convention. Domestic violence is often considered a private matter that lies outside the state's jurisdiction-a matter for couples to resolve. However, more and more women's groups are agitating for legal sanctions against it and the provisions of support services for victims whether they are married or in live-in arrangements. (Reyes, Dr Socorro L. 1992, Legislative Agenda on Womens Issues for the New Congress, Paper read at the Fourth International Philippines Studies Conference held at the ANU, Canberra, 3 July 1992, p. 51). This Tribunal has also taken note of the relevant parts of RRT decision N93/02263 as follows: In its most recent repot, the United States Department of State records that "in law, but not in practice, women have most of the rights and protections accorded men": Country Reports on Human Rights Practices for 1995, Washington, February 1996, p. 705. It records that violence against women, particularly domestic violence, remains a serious problem in the Philippines. Women's advocate point to poverty, double standards of morality, lack of laws on domestic violence, and a traditional societal reluctance to discuss private family affairs, as some of the reasons for the prevalence of domestic violence. No divorce laws and the lack of job opportunities combine to limit the ability of women to escape destructive relationships". The report notes" an alarming increase" in reported rape cases in 1995: women's groups claiming that rapists are dealt with leniently by the male-dominated law enforcement and judicial systems, referring to a decision that a convicted rapist should be spared execution because of the mitigating factor that he was drunk and "high on drugs" at the time. The report also notes that, while some steps have been taken to, for example, employ women officers at police stations, significant legislative change remains to be seen: Country Repots on Human Rights Practices for 1995 (above) pp. 704-705 In considering a claim to refugee status, questions arise as to the adequacy and effectiveness of state protection and whether there is every chance that a woman making a complaint of domestic violence will be virtually ignored by the Philippine authorities. What protection exists in legislation is illusory unless women are able freely to make complaints. Being able to make complaints does not mean having to surmount the kinds of social and cultural barriers which evidently exist in the Philippines; it includes the knowledge that complaints will be forthcoming outweighs the risks involved in making the complaint. The fact that rapes and other assaults are prosecuted makes clear that there are some cases in which action is taken but the evidence makes clear that large numbers of Philippina women endure serious and sustained violations of their human rights without and adequate or real protection by the State.Is there a Real Chance of Persecution?
To determine whether the Applicant is in need of international protection, the Tribunal must consider whether there is a real chance that the Applicant will continue to be persecuted by Mr [deleted under s431 of the Migration Act] upon her return to the Philippines. The Tribunal takes note of the fact that the Applicant left the Philippines in 1992. This raises the question whether Mr. [deleted under s431 of the Migration Act] is still interested in the Applicant after almost four and a half year absence. The Applicant has produced evidence in the form of letters from her relatives that Mr [deleted under s431 of the Migration Act] has been asking of her whereabout. One of the letters (a card) was dated 1994. The other letter was not dated. According to the Applicant's statement at the hearing, she received one of the letters in 1994 and the other in 1996. This aspect of the Applicant's evidence raises some doubts as to the likelihood of there being a real chances that the Applicant will suffer persecution. It is clear from the approach the Tribunal has taken in such cases before it that the facts of each case must be considered on their merits. In the present case, the Tribunal cannot conclude with certainty that. Mr. [deleted under s431 of the Migration Act] is not still interested in the Applicant or that the Applicant would live in safety upon her return to the Philippines. Accordingly, the Tribunal is prepared to give the Applicant the benefit of the doubt as recommended by the Handbook: "After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 169), it is hardly possible for a refugee to "prove" every part of his case and, indeed, it this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt" (Handbook para. 203). The Tribunal has also considered the qualification by the Handbook that; "the benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts" (Handbook para. 204). On the whole, the Applicant appears credible and sincere in her evidence at the Tribunal hearing. The Tribunal is also satisfied that the Applicant's statements are generally consistent with country information regarding the treatment of women in domestic violence situations as noted above.Conclusion
After assessing the Applicant's claims, the Tribunal's conclusions are as follows: The Applicant's fear of persecution based on her political activities with the CPP-NPA is not well-founded; however, the Tribunal cannot conclude with certainty that the Applicant does not face a real chance of persecution by Mr. [deleted under s431 of the Migration Act] as a result of her membership of a particular social group. Accordingly, the Tribunal concludes that the Applicant is a refugee within the meaning of the Convention and that she is a person to whom Australia has protection obligations.DECISION
The Tribunal finds that the Applicant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. The Tribunal remits the application to the delegate to be reconsidered in accordance with the direction that the Applicant satisfies the requirement for the grant of a protection visa that she is a person to whom Australia has protection obligations under the Refugees Convention. Martin Tsamenyi, Member
