1506629 (Refugee)

[2017] AATA 796

1506629 (Refugee) [2017] AATA 796 (24 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506629

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Sydelle Muling

DATE:24 April 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 24 April 2017 at 12:45pm

CATCHWORDS

Refugee – Protection visa – Cambodia - Refusal of marriage proposals – Threats of violence – Social unrest at future elections – Single mother – Australian born children - Delay in application – Family violence in Australia – Request for Ministerial intervention

LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), (c), 65, 417

Migration Regulations 1994, Schedule 2

CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Selvadurai v MIEA & Anor

(1994) 34 ALD 346

Andaraj Subramaniam v MIMA

[1998] FCA 305

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] February 2014 and the delegate refused to grant the visa [in] April 2015.

3. The applicant appeared before the Tribunal on 5 April 2017 to give evidence and present arguments. 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 [a] village, [name] commune, Steung Trang district, 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] December 2009. She has been in a de facto relationship since January 2013. Her parents and [sibling] are living in Cambodia. She is in phone contact with her parents.

11. The applicant presented her claims in her protection visa application [in] February 2014 (folios 2 to 31 of the Department file [number]), an interview with the Department [in] April 2015 (folio 86 of Department file [number]) and at her Tribunal hearing on 5 April 2017.

12. The applicant claimed in her protection visa application that she fears for her personal safety and being raped. Her parents had received unknown threats to rape her as they had turned their back on a number of unwanted marriage proposals. She claimed she was pretty looking back in Cambodia, in her home town, and this put her in a difficult situation where her family had to refuse a number of proposals made by well-known people in her home town. This had turned many people against her family and she had experienced discrimination and her parents had received threat letters to rape her. The applicant claimed that she fears the people who were upset with her parents as a result of them turning down their marriage proposals. She claimed these people who her family had upset can turn on her and her family and do harm to them. She strongly believes these people cannot get over the fact her parents had turned down their good intention to ask for her hand in marriage. She strongly believes her safety is not guaranteed if she were to go back to her home town. The applicant claimed that authorities are corrupt and will not provide protection for her and her family.

13. 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.

14. 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.

15. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    ….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

16. In the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, the High Court also made comments on the correct approach to determining findings on credibility. Kirby J said at 39:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    With these points in mind the Tribunal now turns to an assessment of the applicant’s claims.

17. The applicant claimed in the hearing, when asked why she fears returning to Cambodia, that at the time she was loved by so many men and did not want to get married. When asked what she believes will happen to her if she goes back to Cambodia now, the applicant stated that people who use to want to have her and did not have her and hate her, will have revenge on her. The Tribunal asked the applicant who these people are. She stated the same people who were in her school. She stated these people were bad because they were involved in drugs and had weapons such as knives. She claimed even now they still go around to her home and throw stones because they hate her mother as they know it was her mother’s idea for her to leave Cambodia because she did not approve of their relationship. The Tribunal asked the applicant who this person or people was. The applicant claimed it was a person named [Mr A]. She confirmed that he was the person who loved her and he had his followers.

18. The Tribunal finds the applicant’s evidence in the hearing regarding the alleged marriage proposals she received while in Cambodia to be inconsistent with her claims in her protection visa application. While in the hearing the applicant claimed that this alleged marriage proposal came from one person named [Mr A], in her protection visa application she claimed that her parents had received a number of marriage proposals made by well-known people in her home town.

19. Further, in respect of what happened after her parents had refused this alleged proposal or proposals, in the hearing the applicant’s evidence was essentially that nothing happened until she left Cambodia, nearly a year after she had received this alleged proposal from [Mr A] in 2008. She claimed after she left the country, [Mr A] went to her house and kicked the fence and yelled. However, in the applicant’s protection visa application, she claimed that after her parents refused a number of unwanted proposals made by these well-known people in her home town, her parents received threats to rape her. The applicant also claimed that she had experienced discrimination as a result of her parents refusal of these proposals. The Tribunal notes that the applicant made no mention at all during the hearing either about any discrimination or, more importantly. threats to rape her in revenge. Given the seriousness and significance of such alleged threats, the Tribunal does not accept that if the applicant’s parents had received letters threatening to rape the applicant, that she would have failed to mention this when asked specifically about her experiences in Cambodia. Similarly, the Tribunal does not accept that if the applicant had been subjected to discrimination, she would have told the Tribunal during the hearing that nothing had happened prior to her departure from the country.

20. The Tribunal also notes that it asked the applicant if [Mr A] did anything else other than kick the fence and yell when he went to her home, when it was discussing with her what happened after her mother had refused his proposal, and the applicant stated no. The Tribunal finds this inconsistent with the applicant’s earlier evidence in the hearing that even now  “they” go around to her home and throw stones. The Tribunal also finds it far-fetched that some nine years after this person’s alleged marriage proposal was refused by the applicant’s mother, that he or people associated with him would be coming to her mother’s home and throwing stones at the house.

21. The Tribunal has also taken into consideration the fact that the applicant arrived in Australia in December 2009 yet did not seek protection until February 2014, a considerable number of years later. When asked why she did not seek protection earlier, the applicant stated she had no idea. She stated she was so young, had no knowledge about Australia, had no-one here and did not speak English. While the Tribunal appreciates the applicant may have had no knowledge about Australia when she first arrived here and did not speak English, the Tribunal does not accept that this adequately explains the applicant’s delay for several years 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 substantial delay in seeking protection raises further doubts about the credibility of her claims and the genuineness of her fear.

22. Based on the above, the Tribunal does not accept the applicant’s claims regarding the alleged marriage proposal/s her mother or parents refused are credible. It does not accept that her parents refused several proposals made by well-known people in her home area and that they subsequently received threats to rape the applicant. Nor does it accept that the applicant experienced any discrimination in Cambodia as a result of people turning against her family because they had rejected a number of proposals. The Tribunal also does not accept that the applicant’s mother received a proposal from a person named [Mr A], which she rejected and that after the applicant departed Cambodia nearly a year after receiving this proposal, [Mr A] went and kicked the fence at her home and yelled or that he or people associated with him have until now thrown stones at the applicant’s home. As the Tribunal does not accept that there were any marriage proposal or proposals made to the applicant’s parents, it does not accept that if she returns to Cambodia now, she faces serious harm, including being raped, by the people whose proposals were allegedly refused or that she faces a real risk of significant harm from these people.

23. At the conclusion of the hearing, when asked if there were any other reasons why she fears returning to Cambodia, the applicant claimed that one more reason now is that it was close to elections and there will be a lot of unrest and demonstrations. When asked when this election is due to take place, the applicant stated July 2018. The Tribunal asked the applicant if she was involved in politics in Cambodia. She stated no. The Tribunal asked the applicant if she had had any problems in the past during elections. She claimed she joined the demonstration. When asked when this was, she stated in 2008 but she could not remember when in 2008 because it was a long time ago. The applicant claimed this demonstration was in Phnom Penh, however when she was questioned about why she was in Phnom Penh, the applicant responded that she just followed a group and stepped out from a truck. The Tribunal has serious doubts about the applicant’s claims regarding her participation in this demonstration and her fears in relation to upcoming elections in July 2018. As the Tribunal put to the applicant in the hearing, this was the first time she had raised this fear and the Tribunal has difficulty accepting that if the applicant had any fears of harm for this reason, she would wait until the conclusion of her review hearing to mention it. The Tribunal also found the applicant’s evidence regarding her participation in a demonstration in 2008 to be vague. She could not remember when in 2008 this demonstration occurred and was evasive when asked what she was doing in Phnom Penh, where this demonstration took place, given that her evidence was that she resided in Steung Trang district. Further, the Tribunal notes that there was nothing in the applicant’s evidence to suggest that she experienced any problems or harm as a result of her alleged participation in this demonstration in 2008. The Tribunal has considered the applicant’s adviser’s clarification in the hearing, that the applicant’s concern is in relation to the demonstrations that might happen during elections in 2018 and the social unrest both pre and post-election. While the Tribunal accepts that there may be demonstrations held during planned elections in Cambodia in July 2018, the Tribunal does not accept on the vague and limited evidence before it that the applicant will be caught up in any social unrest that may occur either pre or post-election. The Tribunal does not accept on the evidence before it that the applicant will participate in any political demonstrations on her return to Cambodia, particularly given her evidence that she had no involvement in politics and the ambiguous nature of her evidence regarding the alleged demonstration she participated in sometime in 2008. The Tribunal finds the applicant’s concerns about being caught up in social unrest to be speculative and for the reasons discussed above, it does not accept that she faces a real chance of serious harm or real risk of significant harm for this reason on her return to Cambodia.

24. The Tribunal notes as the conclusion of the hearing the applicant claimed that if she returns to Cambodia with her [number] children who were born in Australia she will be treated differently. When asked what she believes will happen if she goes back to Cambodia with her [number] children, the applicant stated that she did not know what she can do to support her children. She also claimed that her children will not be acknowledged because they were born in Australia. The Tribunal expressed its concern in the hearing that this had not been raised at any stage prior to the hearing. The Tribunal also notes, as it did in the hearing, that it had nothing before it to suggest that the applicant’s children will have no rights or access to services on their return to Cambodia because they were born outside of the country. The Tribunal has considered the applicant’s claims regarding difficulties she may face financially supporting her children. However, as the Tribunal put to the applicant in the hearing, she has her parents, who she stated she is in contact with, as well as her [sibling] and other relatives there. While the applicant claimed her parents are poor and cannot support themselves, the Tribunal does not accept, given its concerns about the applicant’s credibility, that her parents are unable to provide her with assistance on her return to Cambodia. In light of the fact the applicant has maintained contact with her parents during her many years in Australia, and the applicant’s evidence suggesting that her parents have supported her in the past, including assisting her to travel to Australia, the Tribunal accepts that the applicant will have the support of her parents on return to Cambodia.

1. The Tribunal has also considered the applicant’s position as a single mother on her return to Cambodia. It notes, as it did in the hearing, that there was no information before it suggesting that single mothers are discriminated against for this reason or are subjected to harm by virtue of their circumstances. While the Tribunal accepts that the applicant may face difficulties returning to Cambodia with [number] small children and re-establishing herself,  for the reasons provided above, it accepts that she would have the support of her family, who have supported her in the past and whom she has continued to have contact with over the years,  and that any challenges she would face would not constitute serious or significant harm as defined in the Act. As such, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm as a single mother returning to Cambodia with [number] small children.

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 the person or people  who had proposed marriage to her (or anyone associated with them) and had been refused by her parents, during any social unrest that may occur around future elections in the country or as a single mother. 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 these people who had allegedly had their marriage proposals refused by the applicant’s parents or mother, 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. At the conclusion of the hearing, the applicant’s adviser 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 raised issues regarding the applicant’s children who were both born in Australia and whose father is an [nationality] citizen resident here. According to the applicant’s adviser, the applicant’s relationship with her children’s father had broken down as a result of family violence. Following the hearing the Tribunal received a number of documents including an application for [country] citizenship for the applicant’s children; the children’s birth certificates; the applicant’s marriage certificate; a notice of hearing in respect of a family violence complaint at [name] Magistrates’ Court [in] May 2016; an intervention order issued by the [name] Magistrates’ Court [in] May 2016 and a statement made by the applicant to police [in] July 2016. 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)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

   DECISION

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

   Sydelle Muling
   Member