1510148 (Refugee)

[2017] AATA 1174

1510148 (Refugee) [2017] AATA 1174 (14 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510148

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Frances Simmons

DATE:14 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 July 2017 at 4:58pm

CATCHWORDS

Refugee – Protection visa – Cambodia – Religion – Christianity – Kidnapped by Buddhist monks – Forced to change back to Buddhism - Credibility – Vague and lacking in detail – Not genuine practicing Christian - Delay in protection application – Freedom of religion in Cambodia

LEGISLATION
Migration Act 1958, ss.5, 36(2)(a), (aa), (b), or (c), 65, 91R, 91R(3), 91S, 499
Migration Regulations 1994, Schedule 2

CASES 

Anandaraj Subramaniam v MIMA (unreported, Federal Court of Australia, Carr J, 10 March 1998)
Selvadurai v MIEA & Anor (1994) 34 ALD 346

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). The applicant is a citizen of Cambodia. She applied for the visa [in] September 2014 and the delegate refused to grant the visa [in] June 2015.

2. The applicant appeared before the Tribunal on 11 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent.

   RELEVANT LAW

3. 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.

   Refugee criterion

4. 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).

5. 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.

6. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

   Complementary protection criterion

7. 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’).

   Section 499 Ministerial Direction

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The 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.

   Background

10. The applicant is a [age] woman of Cambodian nationality born on [date]. [In] March 2007 she arrived in Australia after being granted a [temporary] visa [in] February 2007. This visa allowed her to remain in Australia until the determination of her [permanent] visa. [In] November 2011 a delegate of the Minister for Immigration refused to grant her the [permanent] visa. She applied to the Migration Review Tribunal (differently constituted) for review of this decision. On 21 November 2013 the Tribunal affirmed the delegate’s decision.  

11. The applicant lodged her application for a protection visa [in] September 2014. She has renewed her Cambodian passport at the Cambodian embassy on multiple occasions, most recently [in] February 2016 when she renewed her passport until [date] 2017. According to her visa application she is of the Cham ethnicity. She is still in contact with family members in Cambodia.  Before she travelled to Australia she worked as a [Occupation 1]. In 2007, she completed a [course] in spoken and written English; between 2012 and 2013 she completed courses in [another field]. In 2008 she obtained a divorce.

    Summary of written claims and supporting documentation

12. In her application for a protection visa the applicant claims that she fled Cambodia because her life was in danger from a group of Buddhist monks. She claims that she was targeted by a gang of Buddhist monks because she had converted to Christianity. This gang kept her under ‘continuous surveillance’, and there was a serious threat to her life.  She claims that the ‘Department of Public Persecution’ [the Tribunal accepts this could be a reference to Prosecution rather than Persecution] issued an arrest warrant for her and she left the country. She claims that she was working before that but she lost her job and was facing financial hardship. She claims that she got a proposal to marry an Australian citizen who was visiting Cambodia. She claims that she hid her religion, married and left the country.

13. In response to the question have you experienced harm in your country, the applicant claims that in February 2006 she was at her home when a gang of monks broke the main door and kidnapped her. Her family members tried to resist but their efforts failed. They took her to unknown place where they tried to force her back to Buddhism. These monks had a connection with a military general and were very powerful; although they appeared peaceful in society they were actually involved in an illegal timber trade. They kept her in prison for one month and tortured her physically and mentally. When they decided to kill her, she told them she would revert back to Buddhism. She was released on condition she would regularly attend Buddhist prayers.

14. The applicant fears that if she returns to Cambodia she would be killed by the monk gangs as they have a network throughout the country.  Her family members are also angry because she changed her religion and put their lives in danger. They will not want to accept her. She will have no place to go back to and does not feel secure in Cambodia.  She fears that the extremist gang of monks will kill and harm her other family members if she goes back. She claims that she hid her religion for a year before she had the chance to leave Cambodia. The Cambodian authorities could not protect her because the monks are powerful with links to the authorities and if you change your religion it is seen as a sinful act.

15. In the protection visa application under ‘details of any criminal charges pending’ it states ‘charge to motivate the people against Buddhist monks. That was a false charge’.[1]

    [1] Departmental file, folio 20.

16. The applicant provided support letters to the Department.  These letters include: a letter from the Reverend [name] of the [Church 1] (Suburb 1]) stating that the applicant joined their church activities from September 2014 to December 2014; two statutory declarations from people who claim to know the applicant, attended church with her, have knowledge of her Christian faith and have heard about the problems she experienced in Cambodia when she changed her religion.

    Interview with the delegate and the delegate’s decision

17. The applicant was interviewed by the delegate with the assistance of a Khmer interpreter [in] June 2015. The Tribunal has listened to this interview. The Tribunal notes that the applicant told the delegate that since 2014 she had been attending a Christian church in [Suburb 1] but she did not know what denomination it was apart from Christian. She told the delegate that she was baptised in Cambodia in 2005 but she had not been baptised in Australia because the teacher in the church did not think she was ready yet.

18. The delegate refused to grant the applicant a protection visa. The delegate did not accept that the applicant had converted in Christianity in Cambodia or that she had been baptised in 2005. The delegate found her claims to have been kidnapped by Buddhist monks were not credible. The delegate did not accept that she was a genuine Christian and disregarded her attendance at a Christian church in Australia pursuant to s 91R(3) of the Act.

    Tribunal hearing

19. When the applicant was invited to a hearing she requested a Mandarin interpreter. Because she gave evidence to the delegate with the assistance of a Khmer interpreter, a Tribunal officer confirmed with the applicant’s representative that the applicant requested a Mandarin  interpreter. At the hearing it was apparent that the applicant could speak in English fluently. The applicant confirmed she understood the Mandarin interpreter and that, while she did speak English, she told the Tribunal she would prefer to give evidence with the assistance of this interpreter. The applicant gave evidence she speaks the English, Mandarin, and Khmer languages. The Tribunal is satisfied that the applicant understood the Tribunal’s questions and had a meaningful opportunity to respond.

20. The refugee and complementary protection criteria were explained to the applicant. The applicant confirmed that the information she had provided to the Department was true. She had no corrections to make and no additional documents to submit. Asked if there were any reasons that she was afraid of returning to Cambodia that she didn’t tell the Tribunal about she said that it was all included. When the Tribunal referred to the handwritten claims in her application, she stated this was filled out by a friend.

21. The applicant told the Tribunal that in January 2015 she married an Australian citizen and that they live together in [suburb]. Her husband, who is a [occupation], supports her and sometimes she also works as a [Occupation 1]. Her first marriage ended in divorce. When she lived in Cambodia she had support from relatives and family; she also did some [occupation] work as well as some work as a [Occupation 1]. Her parents, who are Buddhists, and [siblings] still live in Phnom Penh. Her family moved to Phnom Penh when she was around five or six years of age. Before she travelled to Australia she lived with her parents in Phnom Penh. She still speaks to her parents; they last spoke a week before the hearing.

22. Asked why she left Cambodia, the applicant told the Tribunal that she was afraid: her life was threatened and she had been kidnapped by Buddhist monks. The applicant was questioned about her past experiences in Cambodia and her fears that she would be harmed if she returned to Cambodia. The Tribunal also asked the applicant about how she practised her Christian faith in Australia and why she would face harm if she practised her faith in Cambodia. The Tribunal invited the applicant to comment upon on its concerns about the credibility of her claims and country information about the treatment of Christians in Cambodia. Where relevant her evidence about these issues is discussed below in the Assessment of Claims and Evidence.

23. At the hearing the applicant stated that the government in Cambodia was corrupt and she referred to feeling powerless. The Tribunal acknowledged that corruption is widespread in Cambodia.[2] The Tribunal advised the applicant that it needed to consider whether there was a real chance that she would personally face serious harm or significant harm. The Tribunal referred to her claims that she had been kidnapped by Buddhist monks and her claims that she would be targeted because of her religious beliefs. Asked if there were other reasons she was afraid of returning to Cambodia, the applicant told the Tribunal that if you have power in Cambodia you can do anything and the powerless are bullied.

    [2] Human Rights Watch, World Report 2017 - Cambodia, 12 January 2017.

24. Towards the close of the hearing the applicant was asked whether she had told the Tribunal all the reasons that she was afraid of returning to Cambodia. The applicant indicated she had said everything she could remember and if there was anything else she couldn’t recall. She was also asked whether there was anything important that she had not told the Tribunal.  She did not make any other claims.

    ASSESSMENT OF CLAIMS AND EVIDENCE

    Nationality

25. 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.

26. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[3]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]

    [3] MIMA v Rajalingam (1999) 93 FCR 220

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

27. Before the Tribunal the applicant reiterated her written claims that she was kidnapped by Buddhist monks in February 2006 and imprisoned for a month. Asked if she knew why she was kidnapped, she said the government was corrupt and the people in power were against her religion. However, the Tribunal found the applicant’s evidence about her conversion to Christianity and her religious activity in Cambodia to be extremely vague and lacking in persuasive detail. Asked to explain why she decided to convert to Christianity in Cambodia, she gave evidence that several people came to her house and proselytised to her. She told the Tribunal she went to church in Cambodia but she did not remember where the church was. She then identified the name of this church as the Christianity church.  Questioned about how often she went to church her evidence was vague and evasive. She said she ‘often went there’. Asked whether she went once a week or once a month, she said on average several times, as long as she had time she would go. Asked how often she went to church in the year before she travelled to Australia, she said at that time she seldom had time to go and she didn’t dare to go. Asked in what year she first went to church in Cambodia, she said in 2006 or 2005. Questioned about what her baptism symbolised, she said she started to believe in God and follow the path God lives.

28. The Tribunal finds that it is highly improbable that the applicant would be kidnapped by Buddhist monks because of her religious beliefs. According to the applicant’s evidence she only converted to Christianity in around 2005 or 2006 and her religious practice involved reading the bible and going to a church. Questioned about why she would be targeted by monks in February 2006 when she had only recently started attending church, she told the Tribunal they had several groups and they had gained information about her going to church.  However, as the Tribunal discussed with the applicant, although Christians are a religious minority in Cambodia (around 95 per cent of the population are Buddhists), the country information indicates that Christians can practice their religion freely.[5]  Furthermore, the Tribunal could not locate any reports of Buddhist monks targeting Christians or Buddhists who converted to Christianity in the manner that the applicant has described.[6] In this context, the Tribunal finds the applicant’s claims that she was targeted by gangs of Buddhist monks shortly after she converted to Christianity to be highly improbable.  

    [5] See, for e.g. United States Department of State, 2013 Report on International Religious Freedom - Cambodia, 28 July 2014, available at: ; United States Department of State, 2015 Report on International Religious Freedom - Cambodia, 10 August 2016, available at: ’Cambodians Turning to Christianity’, Phnom Penh Post, 23 March 2011 available online < >. ; ‘Cambodians who turn from Buddha to Jesus’, The Phnom Penh Post, 7 July 2000, Sources consulted: CISNET, European Country of Origin Information Network (ecoi.net), Refworld, Google.

The Tribunal also found the applicant’s evidence about what she was afraid would happen if she returned to Cambodia to be vague and unconvincing.  Asked about her fears on return, she told the Tribunal Cambodia was a corrupt country and they had people everywhere. She clarified that by ‘they’ she meant the monks and suggested these monks were also police officers and government officials. Asked why they would target her if she returned to Cambodia, she responded that she didn’t know the exact reason but they had people everywhere, they had kidnapped her and she thought her name was on a list which they could refer to wherever they wanted. Having regard to the available country information, which indicates that Christians (converts or not) are free to practise their faith in Phnom Penh and elsewhere in Cambodia[7], the Tribunal finds the applicant’s claims that Buddhist monks who have links with, or have official positions, have placed her name on a ‘list’ to be far-fetched and unpersuasive.

[7] See above fn 5.

1. The Tribunal was concerned that the applicant gave inconsistent accounts of where she was kidnapped. Asked by the Tribunal where she was when she was kidnapped, she responded a petrol station. When it was put to her that in her written claims she stated she was kidnapped from her home, she told the Tribunal that the petrol station was just outside her house. Asked whether there were other people present when she was kidnapped, the applicant told the Tribunal her family were also at her house. Asked to clarify whether she was at her house or at a petrol station when she was kidnapped, she said she ran away to her house and then she could not escape. The Tribunal notes that there is no reference to a petrol station in the applicant’s written claims and considers her evidence to the Tribunal about where she was when she was kidnapped shifted in response to the Tribunal’s questions. This casts further doubt on her credibility as a witness.  

2. The Tribunal was also concerned by the discrepancy between the claims put forward in the applicant’s protection visa application and her evidence to the Tribunal. When the Tribunal asked the applicant whether she had ever been charged or convicted of an offence in Cambodia, she responded no. When the Tribunal asked her whether she had ever been subject to an arrest warrant for any reason, she said no.  It was put to her that her written claims referred to an arrest warrant being issued for her but her evidence to the Tribunal indicated that this had never happened. The applicant’s response was vague: she told the Tribunal that these people – the military – are part of the monks. The Tribunal does not accept that the applicant was ever of any adverse interest to the Cambodia authorities for any reason. The Tribunal is concerned by the significant discrepancies between the applicant’s written claims and her evidence to the Tribunal. 

3. The Tribunal also considers the fact that the applicant departed Cambodia in March 2007, over a year after she claims she was kidnapped in February 2006, casts doubt on her claims that she fled Cambodia to avoid being persecuted because of her religious beliefs. The applicant claimed that her kidnappers released her because she did what they asked: she converted back to Buddhism.  She claims that after she was released she met an Australian man who she married. When asked what problems she had after she was released by her kidnappers she said she hid at her house all the time. Questioned further, she gave evidence that she hid in the house where she had lived with her parents since she was a small child up until she left Cambodia.

4. The Tribunal finds the applicant’s claims that she was hiding from Buddhist monks in the year before she left Cambodia lack credibility. When it was put to the applicant that her evidence indicated that she had lived continuously in a house in Phnom Penh from when she was a little child to when she left Cambodia in March 2007 and it did not sound like she was hiding from anyone, she told the Tribunal she was hiding upstairs. Asked why, if she had been kidnapped from her home, she kept living there after she was released, she said ‘the most dangerous place is the safest place’. When it was put to her that this statement did not make sense, she said her kidnappers didn’t expect her to still live there and her parents pretended they had sent her away; after they searched her house they couldn’t find her so she still lived there. The Tribunal rejects this explanation as lacking in credibility.

5. The Tribunal found the applicant’s evidence about her Christian activity in Australia to be vague and unconvincing. When asked about how she practised her Christian faith in Australia, she told the Tribunal she usually read the bible by herself and that she went to a church in Australia. Asked about what church she went to, she said she used to go to [Church 1] in [Suburb 1] but they mostly speak Cantonese. She told the Tribunal she went to this church every Sunday for the last two years. Usually they call the Reverend Reverend [name]. She thought she started attending this church after she lodged her application for protection (she said a friend took her there) but she couldn’t remember what month she applied for the visa in. Asked whether she went to churches before she applied for a protection visa, she said she went with one of her friend: she referred to a Catholic church. She said she went to several churches but she couldn’t recall. Recently she went to a church in [suburb] with her husband.

6. While the applicant may well have had attended a Christian church in [Suburb 1] for a period of time, the Tribunal doubts that the applicant has ever attended church in Australia regularly for an extended period of time. Nor, on the evidence before it, is the Tribunal satisfied that the applicant attended church in Australia on a regular basis before August 2014. The Tribunal acknowledges that the applicant provided the Department with a supporting letter from Reverend [name] dated June 2015 (stating that the applicant attended the [Church 1] in [Suburb 1] from September 2014 to December 2014) as well as statutory declarations from two people who support the applicant’s claims to be of the Christian faith. However, as the Tribunal discussed with the applicant, while she claims to have attended a church in [Suburb 1] every Sunday for the last two years she has not provided any further letter from the [Church 1] corroborating this claim. 

7. On balance, the Tribunal is prepared to accept that the applicant’s engagement with Christianity in Australia may be for mixed purposes and not the sole purpose of strengthening her protection visa application. Therefore the Tribunal not disregarded her conduct in engaging with Christianity in Australia pursuant to s 91R(3) of the Act. However, while the applicant may well have accompanied friends and, more recently her husband, to Christian churches for social reasons and/or because she wanted to learn more about Christianity, the Tribunal doubts that she is a genuine and practising Christian. On the evidence before it, and having regard to its concerns about her credibility, the Tribunal is not satisfied that she is a genuine practising Christian.

8. Notwithstanding its doubts about the applicant’s claims to be a practising Christian, for purpose of this decision, the Tribunal has considered the possibility that it is wrong and the applicant is now a Christian who may wish to practice Christianity in Cambodia. At the hearing the Tribunal asked the applicant why she would have problems attending church and practising her Christian faith in Cambodia. The applicant stated the monks told her they were against Christianity and they thought if they joined Christian groups they would rebel. The Tribunal acknowledges that Christians are a minority in Cambodia and the most people are Buddhists (reports indicate that some 95 per cent of the total population of 15.7 million people are Buddhists).[8] 

   [8] US Department of State, 2015 Report on International Religious Freedom - Cambodia, 10 August 2016.

9. However, as the Tribunal put to the applicant, it couldn’t find reports of Christians in Cambodia being targeted because of their religious beliefs and practices.  The Tribunal put to the applicant that in 2013 the United States Department reported that there were no significant government actions affecting religious freedom in Cambodia. Further there were no reports of societal abuses or discrimination based on religious affiliation, belief, or practice.[9] As the Tribunal put to the applicant more recent reports, including from the United States State Department, do not support the conclusion that Christians were targeted because of their religious practices and beliefs.[10]

   [9]  US Department of State, 2013 Report on International Religious Freedom - Cambodia, 28 July 2014.

   [10] US Department of State, 2015 Report on International Religious Freedom - Cambodia, 10 August 2016.

10. The Tribunal notes the applicant provided the Department with an article reporting that Cambodian authorities deported a family of five Montagnards, a persecuted predominantly Christian Vietnamese minority group, back to Vietnam.[11]  While Cambodia has been criticised for its response to Montagnards seeking asylum in Cambodia, the Tribunal consider that this is a separate issue from the question of whether Christians are free to practice their faith in Cambodia and, in particular, in Phnom Penh.

    [11] Departmental file, folio 48

11. Invited to comment upon country information which indicates Christians are free to practice in Cambodia the applicant stated what happened to her occurred ten years ago and twenty years ago the political situation in Cambodia wasn’t open. The Tribunal acknowledges that the situation in Cambodia has changed dramatically since violent rule of Khmer Rouge under the leadership of Pol Pot in the 1970s. However, the Tribunal has been unable to locate reports of Christians being targeted by Buddhist monks in the manner the applicant has described 2006 or 2007. Furthermore, as the Tribunal put to the applicant, the Tribunal must look forward and consider whether there is a real chance that she would face serious harm or significant harm if she returned to Cambodia.

12. While the applicant has said that she does not want to risk her life by returning to Cambodia, as the Tribunal put to her, country information indicates that Christian churches operate openly in Phnom Penh. At the hearing the Tribunal referred to a website titled Move to Cambodia which reports that ‘even though almost all of Cambodia practices Theravada Buddhism, on the whole the locals are remarkably tolerant toward other religions and those who practice them’ and provides a list of addresses and contact details for Christian churches in Phnom Penh [12] This information is consistent with other sources that indicate that indicate Christian churches operate openly in Phnom Penh and Christians are able to attend church and practice their faith without difficulty.[13]

    [12]

    [13] See, for e.g.,’Cambodians Turning to Christianity’, Phnom Penh Post, 23 March 2011.

13. The Tribunal put to the applicant that it was concerned about her lengthy delay in applying for a protection visa: she arrived in Australia in 2007 but she did not apply for a protection visa until September 2014. The applicant referred to the fact that she was awaiting the outcome of her [permanent] visa application and she said that she did not know about the law. She told the Tribunal that she did not know about the application process at that time; she was a newcomer to the country at the time and she had to rely on others. She said she had to start from scratch and her solicitors were terrible (they over charged her and did nothing). The Tribunal accepts that the applicant may have received poor representation immigration matters. However, the Tribunal considers the applicant is a resilient person who has, in her own words, started from scratch in Australia. The Tribunal considers that the applicant, who speaks competent English, would have been capable of making inquiries about seeking protection at an earlier point in time if she genuinely feared being harmed in Cambodia.

14. The Tribunal does not accept that the applicant has adequately explained her delay of seven years in seeking protection. In Anandaraj Subramaniam v MIMA (unreported, Federal Court of Australia, Carr J, 10 March 1998) Justice Carr agreed with Heerey J in Selvadurai v MIEA & Anor (1994) 34 ALD 346 that, 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. While the delay in seeking protection is not determinative, the Tribunal considers that the lengthy delay in seeking protection raises further doubts about the genuineness of her claimed fear of persecution.

    Conclusions

15. For all the reasons set out above, the Tribunal is not satisfied that the applicant is a credible witness. The Tribunal finds that the applicant has fabricated her claims about her past experiences of harm in Cambodia. The Tribunal is not satisfied that she converted to Christianity in Cambodia or that she attended church or was baptised in 2005 or that she ever attracted the adverse attention of Buddhist monks because of her religious beliefs and activities or for any other reason. It follows that the Tribunal does not accept that she was ever kidnapped, tortured, pressured, abused and mistreated, threatened,  or subject to other forms of harm by Buddhist monks pressuring her to return to the Buddhist faith. The Tribunal finds that these claims have been fabricated in the hope of securing a protection visa.  

16. Because the Tribunal does not accept that the applicant ever attracted the adverse attention of powerful Buddhist monks, the Tribunal does not accept that she ever hid from gangs of Buddhist monks or that such gangs ever threatened her family members or visited her home looking for her. The Tribunal does not accept that the applicant was forced to hide her religion or that she lost job because she was targeted by monks or that the lives of her family members were ever threatened. The Tribunal rejects her claims that her family members are angry with her because she changed her religion and put their lives in danger. The Tribunal finds, based on the applicant’s evidence, that she is still in contact with her parents and it does not accept that her family members will reject her if she returns to Cambodia.

17. The Tribunal does not accept that the applicant has ever been charged or convicted of an offence in Cambodia or that she was ever the subject of arrest warrant issued by the Cambodian authorities or that a false charge was ever levelled against her. While the applicant’s protection visa application states she bribed the authorities to obtain her passport she did not raise this issue at the hearing. At the hearing the applicant confirmed she had renewed her passport on multiple occasions in Australia and she did not claim to have any difficulty doing so.  Having found the applicant was of no adverse interest to the authorities or to Buddhist monks the Tribunal does not accept that the applicant had any difficulty obtaining a passport. The Tribunal rejects, in their entirety, the applicant’s claims to be adverse interest to authorities in Cambodia as well as her claims to be of adverse interest to powerful monks with links to the Cambodian authorities.

18. The Tribunal accepts that the applicant married an Australian citizen in July 2006 with the intention of leaving Cambodia. However, the Tribunal does not accept that she left Cambodia because she feared being harmed because of her religious beliefs and practices or for any other reason. The Tribunal finds that the applicant has fabricated her claims of past harm in Cambodia because she would prefer to remain in Australia rather than return to Cambodia. On the evidence before it, the Tribunal does not accept that she was ever threatened or harmed in Cambodia because of her religion or for any other reason.

19. On the evidence before it, the Tribunal is not satisfied that the applicant is a genuine Christian who would be motivated to attend a Christian church if she returned to Cambodia. Furthermore,  even if it was accepted that she is a practising Christian and would seek to attend church and practise her Christian faith in Cambodia, the Tribunal finds that there is no real chance that she would face harm of any type (including serious harm or significant harm) if she did so. As noted above, the country information indicates that Christian churches operate openly in Phnom Penh and elsewhere and Christians are free to practise their religion.  The Tribunal is satisfied that Christians, including those who converted to Christianity from Buddhism, do not face a real chance of harm of any type (including serious harm or significant harm) from the authorities, monks, or any other individuals or groups in Cambodia for attending church and practising their faith. 

20. The Tribunal has considered the applicant's concerns about corruption and the gulf between the powerful and powerless in Cambodian society. However, she has not identified any credible basis for concluding that there is a real chance she would personally face serious harm or significant harm on this basis or for any other reason. While corruption is an issue that affects the population generally in Cambodia, the applicant has not identified any credible basis for concluding that there is a real chance she would personally be subject to serious harm or significant harm by corrupt and powerful officials or other groups or individuals. On the evidence before it, the Tribunal considers that it is mere speculation that she will suffer serious harm or significant harm as a result of corruption in Cambodia and the Tribunal does not accept that there is a real chance (as opposed to a remote chance) that this will occur.

21. The Tribunal finds that the applicant’s claims about her past experiences of harm in Cambodia are not credible. The Tribunal finds that, at the time she left Cambodia and travelled to Australia, the applicant was not of any interest to gangs of Buddhist monks or to the authorities or to any other person or group. The Tribunal is not satisfied the applicant is of adverse interest to the authorities or to any other person or group in Cambodia and it finds that there is no real chance that she will face serious harm from Buddhist monks or the authorities or any other person or group if she returns to Cambodia now or in the reasonably foreseeable future. The Tribunal finds, based on the country information, that even if it were accepted that the applicant has converted from Buddhism to Christianity and that she would seek practice her Christian faith in Cambodia, that she would be free to do so and that there is no real chance that she will face serious harm or significant harm because she has converted from Buddhism to Christianity or because of Christian beliefs and practices. The Tribunal finds that there is no real chance that the applicant will face serious harm in Cambodia because of her religion or for any other reason. The applicant is not a refugee.  

22. 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 gangs of Buddhist monks, or from the authorities, or from any other person or group in Cambodia for any reason. Even if it were to be accepted that the applicant is a practising Christian who has converted to Christianity from Buddhism, the Tribunal finds, based on the available country information, that if she did attend a Christian church and express Christian beliefs in Phnom Penh in Cambodia she would be free to do so and there is no real risk that she would be subject to significant harm for this reason. On the evidence before it, the Tribunal is not satisfied that there is any basis for concluding that there is a real risk that she will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

    CONCLUSION

23. 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).

1. 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).

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

   DECISION

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

   Frances Simmons
   Member