1609453 (Refugee)

1609453 (Refugee) [2019] AATA 6550 (29 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609453
COUNTRY OF REFERENCE:                   Cambodia
MEMBER:Justin Meyer
DATE:29 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 July 2019 at 3:10pm
CATCHWORDS
REFUGEE – protection visa – Cambodia – anti-corruption opinions – criticised the Hun Sen regime – breaking the cultural customs – premarital sex – financially supported by her parents – meant to be in estranged relationship with her parents – disbelieve the applicant’s claim of alleged harm and future harm – no political affiliations – mental health – without medical treatment she would be vulnerable – she will not be denied access to medical care – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5.5, 36, 48A, 65, 499
Migration Regulations 1994 (Cth), Schedule 2 r 1.12
CASES

MIAC v SZQRB [2013] FCAC 33
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
SZVGG v Minister for Immigration & Anor [2015] FCCA 405
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

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).
The applicant, who claims to be a citizen of Cambodia, applied for the visa on 28 May 2014 and the delegate refused to grant the visa on 6 June 2016.
The applicant appeared before the Tribunal on 11 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the tribunal hearing.
PRIOR HISTORY
On 13 May 2011 the applicant lodged her first application for a Protection (Class XA) visa. This was refused on 23 August 2011. The applicant sought a review of the decision at the Refugee Review Tribunal (RRT) on 19 September 2011. The RRT affirmed the original decision on 21 March 2012. As the applicant in this case has previously had her claims for protection assessed under s.36(2)(a) prior to the commencement of the complementary protection laws she is able to make application for a protection visa again under relevant case law.
The applicant lodged the current application for a Protection (Class XA) visa on 28 May 2014. She has not departed Australia since her last arrival.
RELEVANT LAW
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.
The effect of the Full Federal Court's decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 is to confine the bar on making a further application for a protection visa contained in s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. The court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a protection visa only on the basis of one of the criteria in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. The Court's reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application.
As the first applicant in this case has previously had her claims for protection assessed under s.36(2)(a) prior to the commencement of the complementary protection laws and has not left Australia since the final determination of his previous protection application, the Tribunal considers that it must confine its consideration to whether she satisfies the requirements of ss.36(2)(aa) and (c).
In this review, new claims against the Convention cannot be considered by the Tribunal. As Justice Emmett stated in SZVGG v Minister for Immigration & Anor [2015] FCCA 405:
It is clear that the RRT confined its reasoning and conclusion to a consideration of whether or not the applicant met the complementary criterion. However, in circumstances where the RRT has comprehensively rejected the applicant's claims, even if the RRT was required to consider the applicant's claims again in the context of s.36(2)(a) of the Act, there could be no possibility that the applicant would satisfy the relevant criterion.
In SZGIZ, the Full Court of the Federal Court held that s.48A(2) of the Act (as it was at the date of the decision in SZGIZ) did not prevent a person from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa by that person. In the circumstances, there was no obligation for the RRT to consider again whether the applicant met the refugee criterion in circumstances where it had already decided that he did not and that that decision remains unchallenged.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of a ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAC 33.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in 5.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted. However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Section 499 Ministerial Direction
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouses.
It is not apparent that the claims of the applicant were based on being the member of the same family unit and thus Section 36(2)(b) cannot be met.
It is not apparent that the claims of the applicant were based on being a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa of the same class as that applied for by the applicant and thus Section 36(2)(c) cannot be met. Thus I find there is no such claim.
Identity
The applicant was the holder of the Kingdom of Cambodia passport as identified by the department and I am satisfied she is a citizen of Cambodia. Her passport was stolen in Australia as evidenced by a police report provided to the Department. A current Victorian driver’s license was presented to the Tribunal confirming her identity
I am therefore satisfied that Cambodia is the applicant's country of reference for the purpose of assessing protection obligations.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 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.
Claims submitted to the department:
The applicant made these claims:
·She is a [age] year old woman from Cambodia. She was born in Phnom Penh, Cambodia, where she undertook her primary and secondary schooling. She claims that she has completed a [certificate], in Australia.
·The applicant states that her religion is Buddhist and her ethnicity is Cambodian. The applicant states that her parents, [sisters] and brother all reside in Cambodia.
·The applicant left Cambodia and first arrived in Australia [in] December 2005, as the bolder of a [temporary visa] and departed Australia [in] January 2006.
·The applicant left Cambodia and last arrived in Australia [in] June 2008, as the holder of [another temporary visa]. Her visa allowed for a stay in Australia until [March] 2011.
·She does not support the Cambodian Government.
·She "broke cultural customs by having a sexual relationship outside of marriage."
·She formed a relationship with a man, [Mr A], who was [number] years older than her and who resided in [Country 1].
·The relationship started at the end of 2003 and ended in January 2005.
·Her father is a strict man and blamed her for the breakdown of her relationship with [Mr A].
·In 2006, she was with a friend at [Location 1] in Cambodia, talking about her political opinions when a 'brigand' overheard her conversation.
·She was followed and caught by this 'brigand' and was later released, after she paid a bribe.
·In 2007, she had an incident whilst riding her motorbike. A car reversed into her motorbike and knocked her over. The driver was [Official 1’s relative], who threatened her.
·Her father works [in Occupation 1].
·She has ongoing medical issues and believes she will not be able to access medical care for her mental health illness, if she returned to Cambodia.
·In regards to the incident at [Location 1] in 2006, the applicant claimed that she went to [Location 1] with a friend to have lunch and she was talking about how the Government was corrupt. At interview, the applicant was asked what she had said and she replied "voiced anti-corruption opinions and that the government should be removed." When asked what the name of her friend was, she replied "I don't know" When asked what her friend said to her, she replied "nothing."
·She claimed that a 'brigand' overheard her and he was seated at the other side of [Location 1]. When asked who this 'brigand' was and what he was doing, she replied "He was with his team, eating and drinking," The applicant claimed that they followed her and verbally abused her. When the applicant was asked what they said, she replied "I forgot." She also claimed that she paid them [amount] bribe to ‘let her off this one time' and she never saw them again.
·In the 2007 motorbike incident the applicant claimed that in 2007 she was riding her motorbike when [Official 1’s relative] reversed into her motorbike. At interview, she was asked how she knew that it was [Official 1’s relative] she replied "because I noticed he has the same features and I recognised him from the media." She stated that he intentionally reversed into her motorbike and was not paying any attention. When asked where she was, she replied "close to my high school and he followed me." When the applicant was asked what he said, she replied "he got out of the car and shook her hands and said sorry." She continued to say that "when he got back into the car, he swore at her before he left....he also had a gun and threatened her and her family." When asked how he knew who she was, she replied "I don't know, maybe he is affiliated with her ex-boyfriend."
·At interview, the applicant was asked whether she has expressed her opinion in public about the Cambodian government. She stated "yes, I talked to friends and ex-boyfriend." When asked what she said, she replied "I told them about my political ideals and anti-government opinions." She further stated that "I talked about how the government were (sic) corrupt, cruel and, guilty of bribery." When the applicant was asked, what her friend's and her ex-boyfriend's responses were, she replied "nothing."
·The applicant claims that her father is disliked by the current ruling regime in Cambodia and had many issues with the Cambodian government. At interview, the applicant was asked about her father's political involvement in Cambodia. The applicant stated "He never told me about it but, any time something happens, he leaves immediately." In her accompanying statement of claims, the applicant stated that she feared her father because he "is a strict, bad-tempered and cruel man." She also stated that he verbally abuses her about "breaking the cultural custom" of having a sexual relationship outside of marriage.
·At interview, the applicant was asked about her father's employment and the applicant stated that he worked [in Occupation 1]. When asked what her father's role or position was with the organisation, she replied "he [holds a position] and he [completes various tasks]." The applicant was asked "What issues did your father have with the Cambodian government?" She replied that when her father [completed various tasks an individual made a request].
·At interview, the applicant claimed to fear harm from her father and society in general on return to Cambodia because she had premarital sex.
Evidence in hearing and analysis
The applicant first visited Australia to visit a person but she could not recall who it was. She has [relatives] in Australia but they all ignore her, she said.
She is presently living in [City 1] in a unit in [a type of accommodation]. She has lived there since 2015.
The applicant has never had paid employment. She finished high school in Cambodia. She did a six month [course]. She also studied [another course]. She received support from a community group.
The applicant wanted to leave Cambodia to avoid further harm there. She decided not to go back to Cambodia and then put in an application to study overseas.
The applicant said that her father is a harsh man and controlling. She planned to marry a man in [Country 1] but the marriage did not go ahead when she was there. The applicant was introduced to the man by the man’s [relative], who is her father’s friend.
The applicant said that there was a broken promise to legally marry after a traditional marriage ceremony. She arrived in [Country 1] and the man reneged. He became unpleasant. In January 2005 he told the applicant that they would not marry and that he would arrange for [Country 1] immigration authorities to send her back to Cambodia.
The applicant’s father became angry and verbally and physically abused her. He slapped the applicant, but she did not need medical attention. He was cruel to her and followed Cambodian gender customs.
Other relatives on her father’s side put pressure on her father. Her father threatened to kill her. He threatened her safety out loud, face to face.
The applicant had to stay living with her father until she departed Cambodia. Her mother helped her apply for a student visa. She was financially supported by her parents. She “borrowed a lot of money” from them, she said. Her father was not keen to lend money but her mother persuaded him.
The applicant has not yet paid back her parents for this loan. She estimated the sum at [amount].
The only reason why she wanted to come to Australia was to be away from serious harm.
From 2003- 2005 she had a boyfriend, [Mr A]. The applicant’s father was unhappy and said it brought shame and dishonour to the family. The father said she had slept with the man in [Country 1], [Mr A], outside of marriage. The whole family felt dishonoured. Her father was a military man and very strict. He would hand her over to the authorities if he could. She is not sure of the full extent of her father’s dealings with the Cambodian government.
I asked the applicant whether she had a relationship with anyone other than [Mr A], who is [number] years older than her. He is a [Country 1] resident.

I asked the applicant why she went back to Cambodia after her first visit to Australia in 2005. She said it was because it was not necessary for her to stay in Australia. I asked the applicant why it was unnecessary. She said she was not ‘made aware’ by the authorities.
I asked if the applicant had experienced cruelty from her father prior to 2005. She said “a little” but that it had gotten worse after that.
I asked the applicant to detail the political matters that she had discussed. She said she would be killed, and she said she had criticised the Hun Sen regime. She said she would be killed by [Official 1] and his [relative] because she had said something against them. The applicant said her father wanted to kill her too because of anger in relation to her former boyfriend for having had sex outside of marriage contrary to cultural custom. Her father would persecute her during the time that she lived with him. Her father worked [in Occupation 1]. Her former boyfriend is associated with a high-rank grouping within the Cambodian government, who will kill her.
She will not have medical assistance and support that she has in Australia. The Cambodian government is corrupt and poisonous. The Vietnamese government controls Cambodia because of Prime Minister Hun Sen. People have to learn Vietnamese instead of Khmer. She will cooperate with anti-corruption organisations to prevent this. She wishes to overturn the Prime Minister. She continues to search for anticorruption organisations in Australia. Her English is not very good and her lack of vocabulary presents a problem to find a job.
She wants to apply her political strategy after her English improves. She wants to obtain a [double] degree in Australia.
I put to the applicant that she had written in her submissions she had voiced some of her opinions to her boyfriend and some of his former friends. She wrote that some of his friends were well-connected and the government. I asked for a name of a friend who was well-connected. She said ‘I’m sorry I do not know’. She said her former boyfriend never told her about that. I asked if she had ever met any of them. She said she used to meet one of themin [Location 2].
I asked again in the hearing whether the applicant in fact came across one of these well-connected people in [Location 2]. She said some time ago she had seen her former boyfriend and a classmate at [Location 2]. I asked what year that was. She said it was in 2010. The friend had threatened her safety and yelled at her. The applicant had never met this friend this before. She said she saw her ex-boyfriend and this friend ‘being together’ in Australia. She had never seen this person in Cambodia. She said it was either classmate of a friend.
I asked what made her think it might have been a classmate. She said it was the way they talked. She said she used to hear what her ex-boyfriend used to say on the telephone to his friends, so they must be affiliated.
The Tribunal is puzzled how the applicant could conclude that this was a possible classmate when she had a claimed chance meeting with them and had never seen the friend before. Merely going on the strength of how her ex-boyfriend used to talk to people before on the telephone is an unlikely scenario. He may have talked in a familiar fashion with ex-classmates, but that did does not mean that he reserved such talk for classmates. Further the unnamed friend was said to be well-connected. However how that was established by the applicant at a chance meeting at [Location 2] was unclear. At best it appears to be an assumption about a person being like other people. The Tribunal has no reason conclude that with this level of vagueness and the required logical leaps needed there was any such person. The description points to a misapprehension that her ex-boyfriend was in [City 1] with an associate, or an invention to enhance her case. The Tribunal does not accept this evidence and finds the claimed events here did not occur.
I went on to ask the applicant whether she could recall the names of other friends to whom she voiced anti-government beliefs. She said ‘I can’t tell their names.’ She explained that it was a long time ago. They were males. She said they were her friends. She followed her political strategy. She had difficulty recalling the cousin of her ex-boyfriend said to be similarly connected. Even bearing in mind the mental health difficulties of the applicant it is puzzling that she can remember so clearly the cousin and the cousin’s involvement yet this person’s name almost escapes her. How she knew that the cousin was highly connected was vaguely explained as being strongly connected as a ‘[an official]’. This is incongruous and this again leads one to conclude that there was no cousin or friends so connected.
She said these people had ordered her assassination by her former boyfriend. I asked how she knew this and she said that whilst in [Country 1] her former boyfriend had taken her to risky places. This was a mountaintop where there was a cliff. She said this was in [State 1, Country 1]. He took her under full pretences she said. I asked whether he made an attempt to throw her off a cliff. She said that he forced her to have sex with him on that occasion. He said that they must have sex or there will be an accident. They did indeed have sex which she said was forced. She said she had no power to stop. This too is incongruous evidence because her claim is that her assassination was ordered. However claim was refined as being a former boyfriend demanding sex or she would be thrown off a cliff. The intention was to assassinate her, it is puzzling why the applicant former boyfriend would want sex instead. This was never explained. Again the Tribunal has credibility issues with this evidence and finds that the applicant was not taken to a mountaintop and forced to have sex nor was she in danger of being thrown off a cliff, nor was her assassination ordered.
I asked the applicant whether she ever joined a political party. She said she had not but her father was a member. She said she did not know what party her father was in. She did not know whether he was a member of a government or opposition party. She said her father was against the government. She said she was unsure. Again this is an incongruous position to take. The applicant claims to have strong political views and motives. Yet she does not appear to know the political party that her father is a member of. The link between her father being anti-government, and a former fiance being linked with the Cambodian government itself does not seem established. Furthermore if the father is opposed to the government and is a member of a political party it is a matter of logic that he would be a member of a non-government, or opposition party. Despite this the applicant seemed very unsure of her father’s political affiliations. As her claim revolves to a large degree around politics this is puzzling to the Tribunal and the matter was never satisfactorily cleared up. The applicant said that she had not been to political meetings or protests and she had no idea when the last election campaign was. She said she did not trust meetings and elections and was an individual. She said she did not read the news but listened to news radio about Cambodia and Australia. I asked if her interest in politics had decreased in Australia and she replied it was about the same. The Tribunal therefore concludes that the applicant has no political affiliation, nor does her father, nor does her former fiance, nor does the applicant have a role - real or perceived - in Cambodian politics.
The applicant said that her uncle threatened her that he would slap her. I asked the applicant about an incident with a motorbike which she had alleged in her material. She said that in 2007 a car intentionally knocked into her while she was on a motorbike. The driver of the car was the boss of the cousin who had threatened her in [Location 1]. The driver shot at the car window. He had a uniform on. He is [Official 1’s relative in] Cambodia. He threatened her life. I asked the applicant how she knew that this was [Official 1’s relative]. She said she could recognise him because her tutor used to tell her about him. This was her English language tutor. She recognised him as [Official 1’s relative] by his uniform, height, face and the way he sat along with the way that he scolded people. The Tribunal does not accept that he applicant is able to identify simply from a photograph such a person or that that he would follow the applicant. It does not satisfy likelihood that two high-profile figures would by chance, come across the applicant. I find that these events did not occur.
I put to the applicant why she borrowed [amount] when she was meant to be in an estranged relationship with her parents. Part of the money was from her relative, her uncle, she said. It is again incongruous that she would be able to borrow so much money from parties who disapproved of her so strongly. I put this to the applicant - this was someone who has threatened to harm her, so why would they lend this money? She said her mother persuaded her father to lend. It is again a concern to her evidence that her father could be so persuaded, as it does not ring true that a person so filled with hatred and vengeance should help the applicant, no matter how influential his spouse might be. I find therefore that there was a generous loan from both parents and help from an uncle and no animosity, threats or danger from any of her family.
The applicant said that she would be at risk of significant harm. She has suffered from inhuman and degrading punishment from her family and the authorities she claimed. She said there is a real risk that this would continue. She said she had to be deprived of her life. Her health would exacerbate matters. She said the without medical treatment she would be vulnerable. She said she would be subjected to harm no matter where she lived. She relies on specialist practitioners and she would unable be subsist without ongoing care and treatment. This care and treatment she needed could not be provided to her in Cambodia she said. She said in Cambodia you needed to be a virgin to marry a man.
I asked if the type of care the applicant needed would be intensive. She replied in the affirmative. She said her [aunt] suffered from mental illness and she nearly died in Cambodia. The applicant said she was persecuted and ridiculed.
I challenged the applicant why she would not get adequate mental care. I asked whether it would be withheld from her. She said she would need to bribe people to get treated. Her aunt was not helped to she could not pay for the treatment.
According to country information about Cambodia as contained in the decision record of the department as supplied to the Tribunal by the applicant:
·Research indicates that state-operated mental health services in Cambodia are limited in terms of resources and funding. Inpatient and outpatient services arc primarily concentrated in urban centres. Non-governmental mental health organisations operate across provinces of Cambodia in addition to available public mental healthcare services mostly located in urban areas.
·According to the World Health Organisation (WHO) Mental Health Atlas 2011, Cambodia has an approved mental health policy. The report further outlines primary mental health care and delivery in Cambodia:
·"An officially approved mental health policy exists and was approved or most recently revised in 2010. Mental health is specifically mentioned in the general health policy,
·Prescription regulations authorize primmy health care doctors to prescribe and/or to continue prescription of psychotherapeutic medicines but with restrictions. The department of health authorize _.primary health care nurses to prescribe and/or to continue prescription of psychotherapeutic medicines, but with restrictions. Likewise, official policy does not permit primacy health COM nurses to independently diagnose and treat mental disorders within the primary care system.
·The majority of primary health care doctors have not received official in-service training on mental health within the last five years. The majority of primary health care nurses have not received official in-service training on mental health within the last five years. Officially approved manuals on the management' and treatment of mental disorders are not available in the majority of primary health .care clinics. Official referred procedures jar refining persons from primary care to secondary/tertiary care do not exist, nor do referral procedures from ter-teeny/Secondary care to primary care (CISD9559B12252)."
·The most recent WHO 2014 Mental Health Atlas country profile for Cambodia summarises mental health governance, the allocation of resources, and the availability and uptake of Mental health services in Cambodia. The overview indicates that government expenditure per person on mental health care in 2013 was USD$76 (C1SEFCB23F6975). A July 2015 report located in the Phnom Penh Post summarises some of the findings of the WHO 2014 country profile:
·"Following a 2014 survey by the department and the WHO, Cambodia was fined to have 63 mental health outpatient facilities and only one inpatient facility with 10 patient beds in the Khmer-Soviet Friendship Hospital, said WHO mental health officer Dr Yel Dararvuth.
·Last year, the Khmer-Soviet Friendship Hospital recorded 248 inpatient cases, while other clinics and health centres dealt with 42,333 outpatient cases nationwide.
·There are also only 41 registered psychiatrists in the Kingdom - 10 for inpatient facilities and 31 outpatient facilities - while there are 81 psychiatric nurses and 19 general practitioners with mental health training spread between both types of facilities.
·Most public clinics, hospitals and some private clinics, such as the one run by the Transcultural Psychosocial Organization, charge $2 to $3 per consultation and a month of medication...(CXBD6A0DE102 13).
·A Leitner Center 2012 report on mental health in Cambodia (CIS961F9402451) provides an overview of inpatient and outpatient services:
·"Cambodia only has two short-term inpatient units, both of which are located in. Phnom Penh, which amount to fourteen psychiatric beds for the entire country —the lowest ratio of psychiatric beds per person in Southeast Asia. Patients can typically only stay in these inpatient units for up to two weeks and must be accompanied by friends or family who are responsible for tending to them. Aside from these two short-term inpatient units, mental health services are available on an outpatient basis in only a limited number of Cambodia's health facilities, most of which are concentrated in urban centers. Cambodia's two national hospitals are both in Phnom Penh and offer outpatient mental health services. Cambodia has eighty-four referral hospitals, only about half of which offer some form of mental health services. Of the 967 health centers that are smaller than referral hospitals and located in more rural areas, less than twenty have staff with some menial health training. While no information is available regarding the mental health services provided at the more remote health outposts there are no grounds to believe that any such services exist (C18961F9402451), in 2012, Integrated Regional Information Network provided a critique of Cambodia's state-operated mental health system that outlined a general lack of funding and human resources (CX283177). A 2015 article in Voice of America assessed state-operated mental health services in Cambodia against WHO findings as 'critically neglected' and having a significant rural/urban divide in terms of the availability of treatments and services (CXBD6A0DE18106). A 2014 report by Southeast Asia Globe noted that in rural areas 'the mentally ill are still treated by traditional healers.' The report notes that up to 300 patients with psychiatric disorders visit the state-operated Khmer-Soviet Friendship Hospital in the capital each day (CX1B9ECAB9187). In 2012, a Leitner Centre report acknowledged the lack of mental health services available in rural Cambodia:
·"Mental health facilities are concentrated in major urban centers, namely in Phnom Penh and Sion Reap, despite the fact that an estimated eighty-five percent of Cambodians live in rural COM1121117illeS. Most rural patients seeking mental health services must travel long distances to receive treatment, which typically entails additional transportation costs. This lack of accessibility is of particular concern given that Cambodia's rural demographic faces elevated risk factors, including "lower socioeconomic status, challenges of the agricultural industry, low educational and vocational opportunities, limited access to quality health care, and myriad other factors [that] bring greater risk of poor mental health." The lack of accessibility is further compounded by the low awareness of mental health issues, particularly in rural areas (CI596IF9402451).
·Non-governmental organisations (NG0s) specific to mental health care and psychosocial support operate in Cambodia. Transcultural Psychosocial Organization (TPO) is an established transnational NGO dedicated to supporting mental health in Cambodia, to quote from TPO:
·"Along with providing quality mental health care to Cambodians via a range of grass-roots projects throughout the country and our Treatment Center in Phnom Penh, we are also a training center in the field of mental health care and psychosocial support. We also conduct research and provide consultancy, often in collaboration with partner organizations and research institutes. We also aim to raise awareness across Cambodia about mental health, promote mental health care and psychosocial well-being, and advocate for mental health services in Cambodia. In doing so, we aim to influence and bring about positive health policy change. Finally, some of our work is linked to - and contributes to -conflict resolution, peace building and social justice.”
·To further quote from TPO: “TPO has more than 50 staff members - all experienced mental health professionals as well as some management and support staff. All staff
are Cambodian. We have offices in Phnom Penh (HQ, Treatment Center and Training Center), Bamtnibang, Sion Reap, Chi Kraeng, Kampong Thom, Kampong Chant and Tboung Khmum (C1S38A8012563).”
·A limited number of public and NGO medical facilities offer treatment for schizophrenia in Cambodia in urban centres and across provinces respectively.
·Transcultural Psychosocial Organization (TPO) offer outpatient consultation for a number of psychological, psychological and psychiatric conditions, including schizophrenia. According to TPO, 'NH clinical staff are qualified and experienced psychiatrists, psychologists, counsellors and psychiatric nurses.' Their services include 'psychiatric assessment and treatment, medication management, psychological treatment, psycho-education, counselling and therapy (for individuals, families and groups), trauma treatment, testimonial therapy, self-help groups. home visits, phone counselling (CIS38A8012565). 'TPO centres are located in Phnom Penh, Siem Reap Province, Bauambang Province, Kampong Thorn Province, Kampong Cham Province, and Tboung Khmum Province (CIS38A8012566).
·In addition to NGO mental health services and facilities, a 2015 report in the Phnom Penh Post notes that in the public health sphere Cambodia has 41 registered psychiatrists - 10 for inpatient facilities and 31 outpatient facilities, while there are 81 psychiatric nurses and 19 general practitioners with mental health training spread across both types of facilities (CXBD6A0DE I 0213).
·Limited information was located that indicates some persons with mental health illnesses and disabilities are subject to stigmatization.
·A 2012 Leitner centre report describes stigmatisation that surrounds those with mental health illnesses in Cambodia:
·The stigma is so pervasive that entire families can be affected. A psychiatric nurse at a referral hospital noted: "When a family has a daughter with mental illness they are ashamed. There is a traditional belief that mental conditions can be transmitted to the children." Another mental health professional stated that the stigma could also pass from parent to child, "for example, if a mother has schizophrenia the others won't ask the daughter to marry." Dr Ang Sody, Clinical Supervisor at TPO-Cambodia, concluded that "[it] is the culture. There is stigma in the family and in the community. There is stigma against the individuals and stigma against the families” (CI5961F9402451).
·A Los Angeles Daily News 2014 report quotes a TPO advisor who notes that 'the government nor donors have placed priority on mental health issues because they [mentally ill] are still stigmatized and hard to grasp for many (CX IB9ECAB9 82).'
·Having an awareness of social stigma, Transcultural Psychosocial Organization (TPO) offer 'strict medical confidentiality' and encourage persons to seek treatment (CI538A8012565). Despite any social stigma that may be related to those with mental health illnesses and disabilities, up to 300 patients With psychiatric disorders visit the Khmer-Soviet Friendship Hospital in the capital each day (CXI B9ECAB9187).
·The delegate recognised the seriousness of the applicant's medical condition. Taking into account the country information, she was satisfied that the relevant medical treatment for persons suffering from a mental illness could be obtained in Cambodia -mental health services are available, including in TPO centres which are located in Phnom Penh, Siem Reap Province, Battambang Province, Kampong Thom Province, Kampong Cham Province, and Tboung Khmum Province.
·Despite any social stigma that may be related to those with mental health illnesses, delegate stated that many patients seek assistance and are treated in these centres and hospitals for their mental illnesses. Persons suffering from depression or other mental illness may comprise a particular social group in Cambodia however to amount to persecution the harm feared by the applicant must be because of her membership of that particular social group. The evidence before her did not, to her mind, indicate that the Cambodian government provides limited mental health services because it is motivated to harm persons who are depressed or otherwise mentally ill.
·For the delegate, the services available may not measure up to the services that the applicant has experienced in Australia, but the applicant will have access to the same medical care as other citizens of Cambodia and will be able to access specialist mental health care.
·There was no evidence in the mind of the delegate that indicated that the applicant would be denied access to mental health services, such as to amount to serious harm for any convention reason, should she return to Cambodia, now or in the reasonably foreseeable future.

Certain parts of this country information were discussed with the applicant in the hearing. The applicant said care was inadequate and would be withheld because of corruption, citing her aunt’s case. She also cited her political activities as being a reason why it would be withheld. Because of the issues that the Tribunal has with the applicant’s evidence and credibility, the Tribunal does not have grounds for finding that this care would be withheld from her because of an opposition to the government or other status. I do not accept that her parents or family or government or political figures are targeting her, or will target her.
I therefore do not conclude that she will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or she will be subjected to torture; or will she subject to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
I note that it has been found in law that being a recipient of less than optimal medical care in a country does not amount - in and of itself - to the infliction of serious harm.
I do not identify on the facts a scenario of intentional harm which is aimed at the applicant. Arbitrary deprivation of life does not concern the consequences of scarce medical resources in developing countries such as Cambodia.
I find that there is no cruel or inhuman treatment or punishment as it requires an element of intent. It is an act or omission by which severe pain or suffering, or pain or suffering, ‘is intentionally inflicted on a person. As earlier discussed I positively disbelieve the applicant’s claim of alleged harm and future harm from individuals and government.
I do not accept that she will fail to receive family support as her explanations for why she received a large loan from family were not accepted. The applicant said she could not get a job because she did not have a year 12 education and thus could not support herself and get medical and mental health care. I do not accept her submission that people in retail in similar jobs in Cambodia need year 12 education. This proposition does not stand to reason. I pointed out that the applicant is fluent in English and appeared to be a relatively intelligent person and might be capable of holding down a job without needing to bribe somebody. I find that [mental illness] would almost certainly be a barrier to employment but it would not prevent employment. She replied that it was difficult enough to stop her. I do not accept this evidence. I do not accept that she will be living in poverty and squalor as submitted nor do I identify a gender-related reason why she would be targeted, based on what was submitted. I bear in mind submitted information from the applicant about the plight of women in Cambodia, yet there are no grounds for finding that she will be targeted as a Cambodian women. In view of the above country information and the applicant’s claimed experiences, the Tribunal is not satisfied that there is sufficient information to conclude that there is a real chance she will suffer serious harm on return purely for reason of being women, or single women living alone, or for having a mental health condition. I find that schizophrenia would almost certainly be a barrier to employment but it would not prevent employment. In any event I leave open the possibility that she might receive family support as she has in the past. Although there may well be stigma against persons with mental health issues as submitted (as appears to be the case across the world), little evidence was presented about how that stigma might lead to cumulatively significant harm.
Mental health
The applicant has had significant mental health issues. In 2012 she started getting assistance. She is assisted by [a] hospital and a charity. She has seen a counsellor and psychologist. She has attended [a] clinic. I asked the applicant whether this was helpful but she said it ‘really does not work’. She said she needed medication that suited her. She had a diagnosis of [mental illness]. I accept that this diagnosis is accurate. The applicant said she had PTSD. She suffered from anxiety and depression she takes [medication]. She attends counselling once a month. If she does not take her medication she cannot sleep. She spent time by watching movies and looking at the subtitles. She goes outside from time to time and attends the shops. She has just one friend.
I asked the applicant how her [mental illness] affects her and she said that it means that she cannot stay asleep at night. She stays awake and has a stress disorder. She suffers from ‘hard chest pain’ and stomach pain. The medication seems to affect her stomach. She pays for her food from a support payment. She shopped for her own food.
I discussed with the applicant persecutory delusions, which were described in the expert’s report provided to the Tribunal. She said she did not understand what they were. I asked whether she would be given a job, and she discussed the difficulty of this if you have had sex outside marriage. I pointed out that her claim was that her accusers were wrong and that she had not had sex outside marriage. She said ‘you cannot use a paper to package a fire’.
The applicant’s representative said the health of the applicant greatly affected her capacity to do work. Access to medication in Cambodia is very limited. There is a lack of medical care as per the country information submitted.
The Tribunal has endeavoured to apply its vulnerable person guidelines in this case. The applicant was given breaks. The applicant was asked questions in a nonconfrontational manner.
Professional such as a psychiatrist and doctor were in attendance for the applicant.
The applicant was allowed to read from a prepared statement to the Tribunal. From time to time the applicant prefer to read from the prepared statement in response to particular questions. Although these recitations of her prepared statement were not always directly relevant to the question allowed, the Tribunal permitted the applicant to continue to read the statement until she had concluded. On a number of occasions these recitations were repetitive, but the Tribunal endeavoured not to interrupt the flow of the applicant.
The applicant was given the opportunity to add any other information at the end of the hearing, which she took.
The Tribunal assesses the applicant as being capable of competently giving evidence. Although she appeared stressed at times, she was able to answer questions calmly. The Tribunal did not detect agitation on the part of the applicant. The applicant was also assisted by a skilled professional representative and migration agent. The applicant appeared well aware of the import of the proceedings and the nature of her claims.
Taking all of these and factors into account the Tribunal found the applicant’s evidence to be useful and relevant to the issues at hand.
The Tribunal notes that there was a lack of insight on the part of the applicant in regards to some of the aspects of her condition: [mental illness]. Persecutory delusions are mentioned in the reports about her, but the applicant did not appear to be aware of exactly what they were. The Tribunal suspects that persecutory delusions found their way into some of the applicant’s evidence, but is unable to ascertain exactly what the applicant believes is true as opposed to information that the applicant gives anyway, knowing that it is not true. In any event, the Tribunal does not need to determine this or the motivations for her credibility issues, but simply finds that there were credibility issues in a number of important aspects of her case. It therefore leads the Tribunal to doubt other important aspects of her case.
Because the Tribunal has found that certain events and situations simply did not occur for reasons of credibility, it goes on to find that the following events and situations did not occur either.
Findings
The Tribunal finds that
·The applicant did not break cultural customs by having a sexual relationship outside of marriage.
·She did not form a relationship with a man, [Mr A], who was [number] years older than her and who resided in the [Country 1].
·Her father did not blame her for the breakdown of a relationship with [Mr A].
·She was not with a friend at [Location 1] in Cambodia, talking about her political opinions when a 'brigand' overheard her conversation.
·She was not followed and caught by this 'brigand' or later released, after she paid a bribe.
·In 2007, she did not have an incident whilst riding her motorbike. There was no car that reversed into her motorbike nor was she knocked over. There was no driver that was [Official 1’s relative], who threatened her.
·She will not be denied access medical care for her mental health illness, if she returned to Cambodia.
·She did not go to [Location 1] in 2006, with a friend to have lunch talking about how the government was corrupt.
·No 'brigand' overheard her at [Location 1]. People did not follow her and verbally abuse her. She paid them no bribe to ‘let her off this one time’.
·No driver got back into the car, or swore at her before he left, nor did a driver have a gun or threaten her and her family.
·Her father does not verbally abuse her about "breaking the cultural custom" of having a sexual relationship outside of marriage.
·Her father does not work [in Occupation 1].
·Her father did not [complete various tasks].
·The applicant’s father did not become angry nor did he verbally and physically abuse her.
·Other relatives on her father’s side did not put pressure on her father. Her father did not threaten to kill her or threaten her safety.
·The applicant’s former boyfriend is not associated with a high rank grouping within the Cambodian government.
·She will not cooperate with anti-corruption organisations to prevent Vietnamese government control over Cambodia. She does not continue to search for anticorruption organisations in Australia.
·She met no former friends or relatives of her former boyfriend in [Location 2] or anywhere else in Australia. No friend or associate or relative threatened her safety or yelled at her.
·She did not voice anti-government beliefs to male friends.
·People had not ordered her assassination by her former boyfriend.
·Her former boyfriend did not take her to risky places, including a mountaintop where there was a cliff, in [State 1, Country 1]. He did not force her to have sex with him on that occasion or say they must have sex or there will be an accident.
·The applicant has not joined a political party. Her father was a not a member of one either.
·The applicant has not been to political meetings or protests and does not know when the last election campaign was.
·The applicant has no political affiliation, nor does her father, nor does her former fiance, nor does the applicant have a role - real or perceived - in Cambodian politics.
·There was a loan from both parents and help from an uncle and there was no animosity, threats or danger from any of her family.
S.36 requires that the complementary protection criterion can only be considered after the non-citizen has been assessed as not meeting the refugee criterion. Those criterion have indeed been assessed.
As I have made the above findings I conclude there is not a basis to find that the applicant will suffer significant harm by arbitrarily being deprived of her life; or that the death penalty will be carried out; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
As I have found that there will not be a real risk that she will suffer significant harm, any question of internal relocation, state protection and generalised risk of harm, or access protection in a third country does not arise.
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 s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Justin Meyer
Member

[2019] AATA 6550

29 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction