1504947 (Refugee)

[2017] AATA 923

1504947 (Refugee) [2017] AATA 923 (18 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504947

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Sydelle Muling

DATE:18 May 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 May 2017 at 6:05pm

CATCHWORDS

Refugee – Protection visa – Cambodia – Particular social group – Women – Victims of sexual violence – Victims of crime – Effective protection – Delay in applying for protection – Social ostracism – Ministerial Intervention request

LEGISLATION
Migration Act 1958, ss 36, 65, 345, 351, 391, 417, 424AA, 454, 499, 501J

Migration Regulations 1994 Schedule 2

CASES
Selvadurai v MIEA & Anor (1994) 34 ALD 346

Andaraj Subramaniam v MIMA [1998] FCA 305

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Cambodia, applied for the visa [in] December 2013 and the delegate refused to grant the visa [in] March 2015.

3. The applicant appeared before the Tribunal on 11 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant’s husband]. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly 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.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

10. The applicant claims to be a citizen of Cambodia  who was born in Kompong Cham, Cambodia on [date]. According to her protection visa application, the applicant’s ethnicity is Khmer and her religion, Buddhism. She resided in [her home town in] Kampong Cham province. She completed [number] years education and is fluent in Khmer. The applicant described her occupation before coming to Australia as student. She departed Cambodia legally [in] June 2012. She was married [in] September 2013 in [town]. Her parents [and specified family members] are living in Cambodia. She is in phone contact with her relatives.

11. The applicant presented her claims in her protection visa application [in] December 2013 (folios 5 to 34 of the Department file [number]), an interview with the Department [in] March 2015 (folio 134 of Department file [number]) and at her Tribunal hearing on  11 May 2017. The following is the statement made by the applicant attached to her protection visa application:

    The reason why I have not returned to Cambodia is because of a man called [Mr A]. His [relative] is [an official], [Mr A] raped me [in] February 2012 when it was on [an occasion] at [a location] which is closed to my house. Since that day, I felt so scare and worried. Every night, I could not sleep. Sometimes, I wanted to commit suicide as I thought that I had nothing left and also made my family worried.

    Because of the above reason that make me do not want to return to my country. Moreover, when I was staying in Australia for two months and a half, my life was changed. I turned to be happy and wanted to live again. I could forget every bad thing that happened on me in the past and remembered only the good things in Australia. Living in Australia also inspires me to go forward and curious about future life. I really love Australia so much. Because of this, on the day that I had to return to Cambodia, I felt very bad and frighten. Therefore, I decided to leave my [Relative A’s] house without telling her. My [Relative A], who sponsored me to Australia [in] August 2012, is named [name]. Since I leaved my [Relative A] house, I rent a room to stay. After that I found a job as [an occupation] that could earn me some money to support rental fee and foods.

    One day, it was on [a date in] December 2012. My co-workers and I had a party together. It was the day that my husband, [named], and I met each other and started to have relationship. Since then, I told him everything about me which made him so pity on me. He told me not to afraid any more. This made me a bit relax and I felt that he is a good man and has warm heart. So, we started to love each other [in] April 2013. I decided to live with him at [address] until I got pregnant [in] May 2013, so we decided to get married [in] September 2013.

    As a result, because of the above reasons that make me do not want to return to Cambodia.

12. The primary issue in this review is whether there is a real chance that, if the applicant returns to Cambodia, she will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Cambodia, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

13. The applicant travelled to Australia on a valid Cambodian passport and states that she is a national of Cambodia. Therefore, the Tribunal has assessed the applicant’s claims against Cambodia as her country of nationality and her receiving country for the purposes of complementary protection.

14. When asked in the hearing why she had applied for protection, the applicant claimed first of all she has a fear for her children’s lives if she has to return to Cambodia. She claimed that she has no ability to raise them in Cambodia. The applicant also claimed that she left Cambodia and did not return because she experienced a rape incident in her village. She claimed the person responsible was named [Mr A] and up to now she does not know if this person is still in the village or gone somewhere. The Tribunal asked the applicant if she believes if she returns to Cambodia she will be harmed. The applicant stated yes, maybe. When asked who she believes will harm her, she stated [Mr A]. She has a fear it may happen again. When the Tribunal queried why this person would want to harm her now, the applicant claimed because she believes this person fell in love with her and wanted her but because he could not have her, he was disappointed, so he may do something to her in revenge.

15. The Tribunal has some doubts about the applicant’s claims regarding the incident in which she was raped in Cambodia by a person named [Mr A]. The Tribunal found the applicant’s evidence about what happened during this alleged incident to be vague and contradictory. The Tribunal notes in the hearing the applicant stated that [Mr A] lived in the same village as her and was from a rich family.  In her statement attached to her protection visa application, she claimed that [Mr A’s relative] was [an official], yet she made no mention of this during the hearing when asked about [Mr A].

16. The applicant also initially claimed in the hearing that she did not have any contact or relationship with [Mr A]. Yet, later in the hearing, when asked if she had had any contact with [Mr A] prior to this alleged incident, she stated that he was always saying something teasing or bad to her but she just ignored him and did not respond. The applicant further claimed that [Mr A] had made advances towards her by talking and teasing her since she returned from her trip to Australia in mid-2011. The Tribunal finds the applicant’s evidence regarding her connection to [Mr A] to be conflicting with her initial evidence that she did not have any contact with him.

17. In respect of the actual incident, the applicant initially claimed that on her way home from [an event] at the [location], [Mr A] grabbed her and took her into the bushes, where he raped her. However, later in the hearing she claimed that [Mr A] and a friend took and put her in [Mr A’s] car, which he drove further into the bush, for about five  minutes.  

18. The applicant claimed in the hearing that after the rape, and once she regained consciousness, she walked home and went to bed and later her mother came and asked where she had been and she told her mother the whole story. She claimed they altogether were thinking about what they should do, whether they should report this incident to the police, but she claimed they had no hope in doing that because “they” are rich and she would not get justice from the system. The applicant confirmed that she did not report this incident to the police because if she did she would get nothing but unacceptability from the community as a woman who had been raped. In stark contrast, the Tribunal notes according to the delegate’s decision the applicant is recorded as having claimed that she reported this incident to the police but no report was completed. When the Tribunal put this to her in the hearing, the applicant stated that they went to the village head and told them about the incident but no official paperwork or anything went further to the police. The Tribunal finds the applicant’s explanation does not address the inconsistency in her evidence. It also finds her claim that she went and told the village head concerning, in light of her earlier evidence in the hearing that she and her family made a conscious decision not to report the incident because of the unacceptability she may face from the community. The Tribunal put the discrepancy in her evidence in the hearing, as compared to what was recorded in the delegate’s decision, in accordance with the requirements in s.424AA of the Act, to the applicant and she responded by clarifying that the police and village head actually work in the same office. The Tribunal finds this explanation unconvincing.

19. The Tribunal has had regard to the evidence provided by the applicant’s husband during the hearing.  He discussed with the Tribunal how he met the applicant and how their relationship developed. The applicant’s husband also told the Tribunal about what he had been told by the applicant about what had allegedly happened.  According to the applicant’s husband the applicant had told him that she had a serious incident in her life and that she had been raped “successfully” and that she did not report it to the police but to the village head. The applicant’s husband stated that he was told by the applicant this incident happened around April or May in a [field] in Kompong Cham Province. Given the applicant’s husband’s knowledge of the applicant’s alleged experiences in Cambodia is based entirely on what he had been told by the applicant, as he asserted in the hearing, the Tribunal places little weight on his evidence. The Tribunal notes the applicant’s adviser suggested the Tribunal ask the applicant’s husband why he believes this incident happened. The applicant’s husband responded by stating because before he accepted her as his wife he had to know about her background. The applicant’s adviser later submitted that the applicant’s husband had told him that the applicant had panic attacks and he believed that this was the result of the attack. The applicant’s husband subsequently went on to say, after the applicant’s adviser raised this, that since living with the applicant she gets nervous and panics easily and sometimes he has the feeling she is very down. He suggested that it may be the result of this incident. The Tribunal also places little weight on this evidence given that the applicant’s husband was essentially prompted by the adviser and did not volunteer this information on his own.

20. The Tribunal has also taken into consideration the applicant’s delay in seeking protection. As the Tribunal put to the applicant in the hearing, she arrived in Australia [in] June 2012 yet she did not seek protection until December 2013.  The applicant claimed that when she arrived in Australia she stayed at her [Relative A’s] place and did not know anything about Australia and then she ran away from her home and rented a room with someone else and stayed by herself until she met her husband and then she got to know. The Tribunal notes the applicant had travelled to Australia twice before and initially had the support of her [Relative A], with whom she was living, to seek advice as to what migration options were available to her to continue her stay in Australia once her visa expired. The Tribunal therefore does not accept that this adequately explains the applicant’s delay of over a year, in seeking protection. The Tribunal refers to the decision in Selvadurai v MIEA & Anor (1994) 34 ALD 346 in which Justice Heerey found that a delay in lodging a refugee application was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution. In Andaraj Subramaniam v MIMA [1998] FCA 305 Justice Carr agreed with Heerey J in Selvadurai as a matter of principle that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least depth of an applicant’s fear of persecution. His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The Tribunal finds the applicant’s  delay in seeking protection raises further doubts about the credibility of her claims and the genuineness of her fear.

21. Based on the above, the Tribunal does not accept that the applicant was a victim of rape in Cambodia. While the Tribunal appreciates the disquiet that may be experienced discussing such sensitive and difficult events and the challenge in remembering everything, as expressed by the applicant in the hearing, the Tribunal does have doubts about the credibility of the applicant’s claims given the discrepancies in her evidence as discussed above.

22. However, even if the Tribunal accepts the applicant’s claim about this incident which occurred [in] February 2012, the applicant’s clear evidence in the hearing was that she had no further contact with [Mr A] and did not see him after this incident, including in the several months when she was still residing in her village, prior to her departure from Cambodia. Further, the applicant confirmed in the hearing that she has no knowledge of whether [Mr A] was still residing in the village or somewhere else. The Tribunal does not accept that if the applicant was at risk of harm from [Mr A], as she has suggested, that her family who she is in regular contact with, would not advise her at the very least if [Mr A] was living in the village.

23. Given the passage of time since this incident occurred, which is now over five years ago, and the fact the applicant has had no contact at all with [Mr A] since the incident itself in February 2012, the Tribunal does not accept that there is a real chance that [Mr A] will harm the applicant if she returns to Cambodia, either because [Mr A] had fallen in love with her and wanted her or in revenge as a result of his disappointment of not being able to have her, as the applicant claimed in the hearing.

24. The Tribunal has also considered the applicant’s adviser’s submission that the applicant may face social ostracism on her return to Cambodia as a victim of crime. The Tribunal is concerned that this was not raised at any stage by the applicant either prior to or during the hearing and that the adviser only submitted this at the conclusion of the hearing. Even if the Tribunal accepts the applicant was a victim of rape, as she has claimed, the Tribunal does not accept that she would face social ostracism from people in her village given the Tribunal finds on the applicant’s evidence that only her immediate family are aware of what allegedly happened in February 2012. The Tribunal also does not accept that the applicant’s family have ostracised her given that she is in regular contact with them. Based on the inconsistency in the applicant’s evidence, as discussed above, the Tribunal does not accept that the applicant reported this incident either to the police or the village head. As such, the Tribunal does not accept in circumstances where no-one in the applicant’s village had any knowledge of what allegedly transpired over five years ago, that the applicant would face social ostracism from the people in her village or anyone else, for any reason including as a victim of crime, which the applicant’s adviser submitted for the first time in the hearing.

25. The Tribunal also does not accept that if the applicant returns to Cambodia she will be unable to stay with her parents and siblings. While the applicant’s adviser suggested that it was because of the alleged rape incident that the applicant would be unable to live with her family, the Tribunal does not accept this given the applicant was living with her family prior to her departure from Cambodia, including in the several months after the alleged incident, and she has maintained regular contact with them while in Australia. Further, the applicant’s evidence was that if she had to go back to Cambodia she has to take her children with her, and her family’s home in Cambodia is not large enough to accommodate the three of them as well as her family. The Tribunal finds the applicant’s evidence does not suggest that her family in Cambodia are unwilling or unable to provide her with support or shelter on her return to Cambodia.

1. The applicant stated in the hearing that she does not want to go back to Cambodia because she has no security for her children at all. As the Tribunal put to the applicant, her children are Australian citizens and are not required to leave Australia. The applicant stated that she does not want to return to Cambodia because if she has to go back home forever, she will be separated from her children for forever, which she cannot do. She stated that if she only has to go to Cambodia temporarily and can be reunited with her children in Australia, she can accept that decision.  The Tribunal finds the applicant’s willingness to return to Cambodia temporarily raises doubts about the genuineness of her fear of harm.

2. Considering all the applicant’s evidence, the Tribunal does not accept that the applicant faces a real chance of serious harm on her return to Cambodia from [Mr A], the person who allegedly raped her, the community or anyone else for any reason including revenge or her purported membership of a particular social group victims of crime. The Tribunal therefore finds that the applicant does not face a well-founded fear of persecution.

3. Nor does the Tribunal accept, based on the findings and reasons discussed above, that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Cambodia, there is a real risk that the applicant will suffer significant harm from [Mr A], the community or anyone else for any reason. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

5. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

7. The applicant’s adviser has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant’s adviser submitted that the applicant cannot be separated from her young children as she is the primary carer of her and her husband’s [young] children and her husband’s [age] year old [child] from a previous relationship. Further, the applicant provides care for her [husband’s relative], who lives with the applicant and her family and suffers from a number of medical conditions. The applicant’s husband is the sole bread winner for the family, so if the applicant was required to depart Australia it would have an adverse impact on his ability to provide financially for their children. The applicant’s adviser submitted a number of documents, including medical documents pertaining to the applicant’s [husband’s relative], letters from the applicant’s husband’s [child’s] school, the applicant’s husband’s payslips and a letter from Centrelink regarding Family Tax Benefit paid to the applicant’s husband in the 2015/2016 financial year.

8. The Tribunal accepts the applicant was married to an Australian citizen [in] September 2013 and that they have [number] children, [names and dates of birth specified]. The applicant and particularly, her husband, also gave evidence about the applicant’s close relationship with her husband’s [child] from a previous marriage, [named], and the importance of this relationship to [this child’s] wellbeing. The applicant and her husband gave evidence that if the applicant was to depart Australia, her husband would have to give up work to care for their children, as well as his sick [relative] and this would have an adverse effect financially for the family. The Tribunal finds that the applicant’s current circumstances raise issues under Article 23.1 of the ICCPR and Article 3 of the CROC, which are referred to in paragraph 12 of the Ministerial Guidelines. The Tribunal notes that it in all the circumstances, it would be in the best interests of the applicant’s children that the applicant be allowed to remain in Australia with them and her husband.

9. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ and will refer the matter to the Department.

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Sydelle Muling
    Senior Member