1603879 (Refugee)

[2019] AATA 3863

1603879 (Refugee) [2019] AATA 3863 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603879

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Joseph Lindsay

DATE:20 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 February 2019 at 3:48pm

CATCHWORDS

REFUGEE – protection visa – Cambodia – came to Australia to care for sick mother – holds fears for Australian husband's health – fear of emotional and psychological suffering if returned – no claims of prior harm or persecution in Cambodia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

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 and Border Protection 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 on 19 May 2014 and the delegate refused to grant the visa on 29 February 2016.

3. The applicant appeared before the Tribunal on 30 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [Mr A]. 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, [Mr B]. [Mr B] attended the Tribunal hearing.

   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:

8. 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.

9. 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Protection claims

12. The applicant’s handwritten claims as contained in her 866 Form stated as follows:

    Q42: I am seeking protection in Australia so that I do not have to return to:

    A. Cambodia.

    Q43: Why did you leave that country?

    A. I was looking after my sicked mother when I came to Australia in May 2012. My mother was very sick and I was not able to return to Cambodia as I wanted to see her last day. She passed away [in] October 2013.

    I have now married to my husband [Mr A] [in] September 2013 and we have lived together as husband and wife. My husband suffers from severe back pain. He needs me to look after him.

    Q44: Have you experienced harm in that country?

    A. No.

    Q45. What do you fear will happen to you if you return to that country?

    A.  No want will look after my sick husband. He needs my support for his daily activities. I will suffer from emotional and psychological harm if I were to return to Cambodia leaving my sicked husband by himself.

    Q46: Who do you think may harm/mistreat you if you go back?

    A. N/A

    Q47. What do you think will happen to you if you go back?

    A. My husband could not perform and look after himself due to his severe back pain.

    Q.48. Do you think the authorities of that country can and will protect you if you go back?

    A. N/A.

    Written submissions the day before the hearing

13. The day before the hearing, 29 January 2018, [Mr B] provided the Tribunal a significant amount of information.

14. The information was:

    a.        a ‘statutory declaration’ from [Mr A] dated 29 January 2018.

    b.        medical information about [Mr A].

    c.        An ANZ bank account statement in the name of [Mr A] and the applicant.

    d.        copies of various images of the [Mr A] and the applicant.

    e.        over 100 pages of various country information in respect to Cambodia.

15. On the day of the hearing, [Mr B] provided a copy of the marriage certificate for [Mr A] and the applicant.

16. The document from [Mr A] stated as follows:

    I, [Mr A], [Address 1], pensioner, do solemnly and sincerely declare as follows:

    1. I provide this statement in support of my [wife's] review application for a protection visa.

    2. By way of background, I have met my [wife] in September 2012 at [a] Hospital. My father and her mother were sick. I provided care for my father so did her. She smiled at me though she does not speak much English. I went to see father every night after work. I saw her and said hello to her every night.

    3. I knew some Cambodian, so I knew that they are friendly people. I found out that [the applicant] was single, me being single too. I asked her out about two weeks after we first met. We went to family functions where we could all talk because her relative can help us with translation. Being a tight community in [suburb], and people that I knew knew their family. So it made us easier to converse.

    4. [The applicant’s] late sick mother, had a lot of concerns for [the applicant]. Being single and her children had grown, all married. So her late mother wanted to see [the applicant] happy, secure and have a stable relationship. She was very to know that we have met and her wishes was to see us married.

    5. We decided to hold our marriage at her house so that she could be involved, to see her daughter married. We were married [in] September 2013. I moved in to [the applicant’s] late mother's house at [Address 2] on the day of my marriage and the next [number] weeks mom passed away [in] October 2013. My wife and I continued to stay in that house for the another [number] weeks before we had to move to our current renting house [Address 1] being there since.

    6. I cannot speak for [the applicant], but I understand that she came to Australia to provide care for her late mother. [The applicant] was single out of all her siblings so she can provide full care. I now understand that it is a Cambodian culture for children especially those live far from their parents to provide support to their sick and frail parents as a way of paying respect for their last wishes. As Cambodian culture is different from Australian, it was a lot of more deep personal care, I was surprise at the ceremony and washing the body, the moaning, the monks and the family around. I was there to support [the applicant] but I felt that I was a son of this family.

    7. Concerning [the applicant’s] immigration status at the time of my meeting with her, I cannot say on her behalf but it was around a month of [the applicant’s] mother passed away that I discovered about her immigration status. I did not understand much about her immigration status and [the applicant] did not understand much as well. The visa was not mentioned to me maybe because of the stress of her mother's sickness and the caring for her so her visa was pushed out of her mind.

    8. After I discovered that [the applicant] had overstaying her visa, and the prospect of her being returning to Cambodia, I was devastated, felt ill, panic, anxiety and started getting depress. I had depression over the years and prior to meeting my wife, but I was really struggling to coup with all the scenario that might happened.

    9. I did not know about the Pot Pot regime all known as the Killing Field until I have met one of Cambodian in 2011. I started to know about the history of recent past of Cambodia. This man lost two brothers in Cambodia through starvation in that regime. He had travelled back to Cambodia, but never return to live there again, beautiful country but the corruption and poverty were devastating. My son [named], went to Cambodia, love the country and the people but he was frightening there if he did or said something wrong and he donated three hundred dollars to the orphanage because of the poverty and the way they was living.

    10. In my mind I cannot work out a scenario if she were to return to Cambodia in particular her living conditions, where and how she was going to live. So I started to look up the internet about Cambodia. My heart dropped with the crime, poverty and the injustice in Cambodia. I know I could not live there and I have serious concerns about [the applicant] well being if she were to return to Cambodia.

    11. I have read and come to term that that Cambodia has high levels of violence against women with rape on the raise because it is a corrupt country. Looking at the human development index last year, Cambodia was ranked 138 out of 187 countries or territories.

    12. As I understand through country information, Cambodia is a country still healing from the devastation of the Khmer Rouge regime and the conflict under the Vietnamese occupation that followed. Nearly 40 years after these events, the country continues to suffer from the effects of the destruction of individuals, families and communities, and from the scars left on the national psyche, as it strives to make way for the rapid social and economic development that is now taking place. Within this delicate state of transition, women are strongly advocating for increased respect for their rights, giving equal social relations the chance to emerge. Nevertheless, the Australian government has expressed concerns about Cambodia recent political crisis and I am fearful that this country would go back into civil unrest.

    13. My [wife] had survived the Killing Field. She was [age] years old in 1975 and lives in fear in Cambodia. She had no house no lands and no money for her to return to live there. So she would be at the mercy of a very bad life.

    14. I know now it was wrong way to do things by over staying her visa but she is not a boat person or a criminal she needs protection from the Australian government. I have grave concerns for her safety if she were to return to Cambodia.

    15. For your information, I have attached my wedding photos, media release by the Australian Embassy concerning political situation in Cambodia recent time, Report from various organisation and various newspaper articles concerning refuge deal between Cambodia - Australia.

    The hearing

17. At the hearing, the Tribunal asked that applicant what was her claim for protection. In response she said:

    I apply to be refugee in this country so I can live with my family, [Mr A].

18. When the Tribunal asked the applicant whether there was anything else she wanted to say about her claim for protection, she responded:

    I already submitted all documents.

19. The Tribunal then considered the applicant’s responses in her protection application.

20. The Tribunal put to the applicant her written response to the question about why she left Cambodia, to which she responded that she came to visit her ill mother.

21. The Tribunal put to the applicant her written response to the question about whether she had experienced harm in Cambodia, and noted she had indicated she had not experienced harm in Cambodia, to which she responded:

    Yes, at the time I left the country there was nothing there.

22. The Tribunal put to the applicant her written response to the question about what she feared would happen to her if she returned to Cambodia, to which she made a number of responses:

    a.she wanted to look after her sick husband and that her husband needs her emotional support for his daily activities. She claimed she would suffer from emotional and psychological harm if she returned to Cambodia leaving her sick husband by himself.

    b.there is no democracy in Cambodia. 

    c.there is a problem with crime in Cambodia.  

    d.all of her children are married and are moving away so she would have to live by myself and also she would have nowhere to live.

23. The Tribunal put to the applicant her written response to the question about who she thought would harm or mistreat her is she went back to Cambodia, and noted she said ‘N/A’ to which she responded:

    I lived in Cambodia during Pol Pot regime and Kmher Rouge. We were separated from my parents and family. Torture happened at time in Cambodia. So now no democracy and I don’t want to go back to that situation there.

24. The Tribunal put to the applicant her written response to the question about what she thought would happen to her if she went back to Cambodia, to which she responded:

    He may need treatment or surgery something  soon.

25. The Tribunal put to the applicant her written response to the question about whether she thought the Cambodian authorities can and will protect her if she went back to Cambodia, and noted she said ‘N/A’ to which she responded:

    I came to live in Australia for over five years already. I love democracy. In Cambodia, there is no democracy. There are suppression of opponent in there.

26. The Tribunal asked the applicant what she would you do if she went back to Cambodia, to which she responded:

    For me, I’m the one who obeyed the law. The reason I don’t want to go back to Cambodia is that there is no freedom in Cambodia. And my husband need surgery soon for back. He has never been to any other country at all. In Cambodia there is no medical facility or proper treatment for him.

27. In her evidence, the applicant made clear that the primary reason for her coming to Australia from Cambodia was to look after her sick mother before her mother’s death.

28. The Tribunal then spoke to the applicant’s spouse, [Mr A], who spoke about how he met his wife, the applicant. He said he met the applicant when her mother was dying and they married some 12 months later in 2013. He said they have been living together since they married in 2013.

29. [Mr A] said he had no desire to go overseas or be in a country of that status (like Cambodia). He expressed his concern about a person not being able to speak their mind in Cambodia. He said he did not want the applicant to return to Cambodia by herself because he thought she might be living on the streets. He did not want to go to Cambodia and mentioned his own health problems.

30. The Tribunal then spoke with [Mr B] and discussed the information he had provided.

31. In summary, [Mr B] submitted that the applicant did not want to go back to Cambodia because:    

    a.        she wanted to stay with her husband in Australia.

    b.if she went back to Cambodia without her husband, she would suffer emotionally and psychologically.

    c.she was fearful of what the Cambodian authorities might do to her if she spoke out against them and made public comment.

32. No documentary evidence was submitted indicating that the applicant had ever spoke out in any way against the Cambodian authorities at any time in any place.

    ASSESSMENT OF EVIDENCE AND CLAIMS

    Identity

33. The applicant is [named], born on [date] and she is a citizen of Cambodia.

    Receiving country

34. The Tribunal has found that the applicant is a citizen of Cambodia and accordingly the Tribunal finds that Cambodia is her receiving country.

    Protection in another country

35. The applicant has indicated that she does not have a current right to enter and reside in a country other than Cambodia. There is no information to suggest that the applicant has a right to enter and reside in another country other than Cambodia. The Tribunal finds that the applicant does not have a current right to enter and reside in a country other than Cambodia and, accordingly, the Tribunal finds that s.36(3) of the Act does not apply to the applicant.

    Assessment of Evidence and Findings

36. Based on the information before the Tribunal, the Tribunal makes the follows findings.

37. The Tribunal accepts that the applicant was never harmed in Cambodia.

38. The Tribunal accepts that the applicant came to Australia to care for her sick mother and for no other reason. The applicant did not leave Cambodia because she was being persecuted by anybody in Cambodia.

39. The Tribunal accepts that the applicant fears if she returned to Cambodia, she would suffer emotionally and psychologically if she returned to Cambodia leaving her sick husband by himself. However, the Tribunal does not accept that the level of harm that the applicant indicated she may be subjected to in this respect is either serious harm or significant harm if she returned to Cambodia in the foreseeable future in this respect.

40. The Tribunal accepts that the applicant fears returning to Cambodia for the reason that there is no democracy in Cambodia. However, there is no evidence before the Tribunal that suggests that this reason alone may cause the applicant to be subjected to serious harm or significant harm if she returned to Cambodia in the foreseeable future in this respect.

41. The Tribunal accepts that the applicant fears returning to Cambodia for the reason that there is there is a problem with crime in Cambodia.  However, there is no evidence before the Tribunal that suggests that this reason may cause the applicant to be subjected to serious harm or significant harm if she returned to Cambodia. There is no identifiable indication that the applicant would be persecuted on the basis of any convention reason. There is no identifiable indication that the applicant has experienced or would experience adverse impacts on her personally from criminal activity in Cambodia. Indeed, it appears to the Tribunal that the risk of crime is one that would be faced by the Cambodian population generally, and not faced by the applicant personally. Accordingly, the Tribunal does not accept that the applicant would face serious harm or significant harm if she returned to Cambodia in the foreseeable future in this respect.

1. The Tribunal accepts that the applicant fears returning to Cambodia for the reason that all of her children are married and are moving away so she would have to live by myself and also she would have nowhere to live. However, there is no evidence before the Tribunal that suggests that this reason may cause the applicant to be subjected to serious harm or significant harm if she returned to Cambodia. There is no identifiable indication that the applicant would face significant economic hardship that threatens her capacity to subsist if she returned to Cambodia. Accordingly, the Tribunal does not accept that the applicant would face serious harm or significant harm if she returned to Cambodia in the foreseeable future in this respect.

2. The Tribunal does not accept the claim advanced by [Mr B] on the applicant’s behalf that she was fearful of what the Cambodian authorities might do to her if she spoke out against them and made public comment she may be harmed. This claim was not raised in the applicant’s written claims to the department or by her personally in the hearing. This claim appears to be an embellishment of otherwise credible claims previously indicated by the applicant. Further, there is no evidence, documentary or otherwise, indicating that the applicant has ever spoken out in any way against the Cambodian authorities at any time in any place. There is no identifiable indication that the applicant ever intends to publically speak out against the Cambodian authorities in any way, whether it be in Australia or if she returned to Cambodia. Accordingly, the Tribunal does not accept that the applicant would face serious harm or significant harm if she returned to Cambodia in the foreseeable future in this respect.

   Refugee criterion assessment – s.36(2)(a)

3. The Tribunal considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act.

4. For the reasons given above, the Tribunal finds that:

   a.the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

   b.the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to Cambodia, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

   c.the Tribunal is not satisfied there is a real chance of persecution that relates to all areas of Cambodia;

   d.the Tribunal is not satisfied that the applicant has a well-founded fear of persecution; 

   e.the Tribunal is not satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act;

   f.the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act. 

   Complementary Protection Criterion Assessment – s.36(2)(aa)

5. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Cambodia, there is a real risk that the applicant will suffer significant harm.

6. The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.

7. The Tribunal is aware of the importance of adopting a reasonable approach, but the decision maker is not required to make the applicant's case for him or her. Nor is Tribunal required to accept uncritically any and all the allegations made by an applicant.  

8. In respect to the Tribunal’s assessment in regard to complementary protection, the Tribunal adopts the findings as stated above.

9. For the reasons set out above, the Tribunal finds that it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Cambodia there is a real risk of significant harm, including that the applicant will suffer harm by way of being arbitrarily deprived of their life; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required by s.36(2)(aa).

   Conclusions

10. 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).

11. 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).

12. 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 criteria in s.36(2).

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Joseph Lindsay
    Member