1612199 (Refugee)

[2019] AATA 3911

1612199 (Refugee) [2019] AATA 3911 (12 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612199

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 April 2019 at 1:15 pm (VIC time)

DATE OF WRITTEN RECORD:                7 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 07 May 2019 at 9:44am

CATCHWORDS
REFUGEE – protection visa – Cambodia – dispute over sale of land – political opinion and activity – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 36

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 July 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for a review of a decision made by a delegate for the Minister for Immigration on 27 July 2016 to refuse the grant of protection visa under the Migration Act.

4. The tribunal has examined the application for the visa which was applied for on 8 April 2014.  The criteria for a protection visa are set out in section 36 of the Act and schedule 2 to the regulations. The applicant is either a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.  Where relevant, the tribunal has taken into account policy guidelines prepared by the Department of Immigration and country information in accordance with the ministerial direction.

5. I note that case law states that where there is conflicting evidence, questions of credit may have to be resolved.  The tribunal is entitled to attribute greater weight to one piece of evidence against another and act upon its opinion that one version of the facts is more probable than another.  In determining whether there is  real chance or real risk, a degree of probability that similar events have or have not occurred in the past is relevant in determining whether there is a chance that that will happen in the future.  There is no rule that the tribunal may not reject an applicant’s testimony on credibility.  There is no rule that a decision-maker must hold a positive state of disbelief before making an adverse credibility assessment.

6. Findings and reasons: The applicant claims to be a citizen of Cambodia and has provided a copy of his passport to the department and tribunal.  That is a current passport.  I find that the applicant is a citizen of Cambodia which is his receiving country for the purposes of refugee and complementary protection assessment.  There is no evidence before the tribunal to suggest that the applicant has the right to enter and reside in any safe third country. 

7. The applicant claims to have left Cambodia for his personal safety.  In his application form he states he left for his personal safety and to run away from being persecuted due to his personal conflict with his business competitor and his political opinion.  He said he feared being persecuted and being subjected to degrading treatment.

8. In answer to who he thought might harm or mistreat him he replied,

   Powerful person with connection to the government.

9. In reply to the question,

   Why do you think this will happen to you if you go back?

   he wrote,

   That person is still in Cambodia and he and his group can do anything to anyone.  No one can stop them.

   In reply to the question,

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

   He wrote, “No”, and said,

   The authority will only protect powerful and rich people.  The authority will not protect poor and powerless people like me.

   In response to the question,

   Have you ever received assistance from the UN High Commission for Refugees?

   He wrote,

   I used to live at refugee camp [Country 1] and Cambodia.

10. The applicant’s written claims in his application to the Department were brief and undetailed.  He did not make further written submissions to the tribunal.  He did give evidence of more detail in the hearing, and for that reason his oral evidence is to be preferred.  He gave oral evidence that he was [age] years old.  He came to Australia in 2009 to flee the country.  He said this was for a visit/holiday, even though he did not know anybody in Australia.  He said he believed that Australia was a beautiful country.  His family in Cambodia are a sibling, his former wife, and children.  He is still in contact with all except his ex-wife, by telephone, and he has not seen them since he left. 

11. He said he had supported himself before beginning work in Australia, on his savings.  He was a businessman selling in the market place in Cambodia, and brought with him AUD100,000 approximately.  Subsequently he obtained work.  He remarried in Australia but he has now separated.  This was to an Australian citizen of [Country 2] heritage.  The parties had considered making a partner visa application, but did not proceed.  This represented his first attempt to normalise his migration status. 

12. I asked the applicant why he fled the country.  He said a person who was working as a military policeman was threatening him.  He said this occurred between 1998 and 2009.  The military policeman’s name is [Mr A].  The reason for the threats was that the military policeman originally wanted to buy land of the applicant.  At no point did the applicant want to sell the land because the military policeman would only give him a low price. 

13. I asked the applicant what the details were of the threats.  He said if he did not sell he would be persecuted.  The military policeman said, in 1998, that if the applicant did not sell he would not be able to live in peace.  The applicant said that the military policeman had not harmed him physically yet.  It was established from the evidence that the applicant was not physically harmed, but the military policeman threatened with the use of weapons. 

14. On the first occasion of this the military policeman showed the applicant that he was wearing a pistol.  He showed it where it was in his waist, and said if he did not sell he would not live peacefully.  This was in 2003.  He would repeat this threat.  He said he continued this until 2008.  I asked the applicant how many times a year such threats would be made.  The applicant said it was once a year.  The applicant said at least one threat was in front of the house, close to the applicant’s land.  I asked the applicant whether there were any witnesses.  The applicant said yes, but there was no one to come out. 

15. He said the witnesses were his “wife and kids”.  I asked the applicant whether any statements or documents were gathered to support this evidence.  The applicant said he had not done so, because he was divorced.  It is for the applicant to make his case, but the tribunal is concerned that there is no corroboration of such threats, and the tribunal is puzzled as to why the threat would be done once a year, over a period of 10 years, and substantially the same terms, without any apparent repercussions. 

16. The tribunal asked the applicant whether there were any other threats.  The applicant adjusted his evidence to say that he had been threatened because he “comes from the refugee camps.”  After the Vietnamese invasion of Cambodia in the late 1970s the applicant lived in the refugee camp on the [Country 1] border in 1980.  The applicant linked this with his support of an opposition party or parties.  Despite the tribunal’s attempts to understand why the military policeman would know this little evidence was put forward, other than general remarks that Cambodia is a communist State and there is a high level of surveillance and investigation of individuals. 

17. I note from the applicant’s evidence that the military policeman lived in a different village, which was nearby.  I challenged the applicant why the military policeman would pick his piece of land.  He said simply that the military policeman wanted to extend his own land.  It was difficult to ascertain from the applicant’s evidence what the military policeman wished to do with it.  The applicant was challenged as to what was it in 2009 that was the final straw that made him leave.  He said that,

    He threatened me again and again that I would not be able to live in peace.

18. There was no physical harm.  The applicant then said that whilst he was living in Australia the military policeman arranged for the arrest of the applicant’s son.  This occurred, however, in July 2014, some five years after the applicant’s arrival in Australia.  The tribunal does not accept the applicant’s evidence that the threats continued annually, once a year, face to face, over a period of approximately 10 years. 

19. The tribunal does not accept that the applicant’s son was arrested for stealing the mobile phone of the military policeman to carry out a threat or to make retaliation to the applicant.  This is because the applicant’s land was sold well before 2014.  The applicant divorced in 2010.  The land, at that point, or shortly afterwards, passed to the former wife, who sold the land.  It was then puzzling to the tribunal why the applicant would continue to be pursued by the military policeman.  The tribunal finds that the applicant’s son was not arrested in retaliation or to carry out a threat.

20. The tribunal put to the applicant if he no longer owned the land, what the problem could be.  The applicant did not know whether his ex-wife sold the land to the military policeman or to anybody else.  He said this was because he had no contact with his wife.  I find this puzzling evidence because the applicant continues to be in contact with other family members.  As this has occurred in a village context, it is puzzling that the applicant has not asked or received information as to what happened to his former land.  There is no plausible reason why this would be concealed from him. 

21. The applicant then focused his attention upon his political opinion.  The applicant said that he feared being persecuted if he went back because he had a deep fear of military policemen.  He also said that he was not pleased with the way Hun Sen is running the country.  I pressed the applicant on why this would affect him, but he provided only general answers about how people were living in fear and wanting to leave the country. 

22. I asked the applicant whether he had ever been in a political party, to which he nominated an opposition party.  He said he had never held office in that party, but had been a “simple member.”  He said he had not paid any membership fees.  I challenged the applicant to tell the tribunal whether he had organised anything for that political party.  But he gave very general evidence saying he was,

    Involved in the election, and voting for them.

23. He said he wanted to get their leader elected as prime minister.  He said he was a member.  I find that the applicant may have sympathised with opposition political parties or a party, but has in no way been a member in any active or real sense of a political party, nor would he be imputed to be a member.  This is also because his evidence about his involvement in politics in Australia was concerning to the tribunal.

24. He said, for example, that he was involved in a protest against the Cambodian government whilst living in Australia.  He said this was when a visitor from the Cambodian government came to Australia.  He struggled to remember when this occurred.  He finally settled upon a few days before 7 January 2019.  He then struggled to identify the visitor he was discussing.  He then shifted his evidence to when Hun Sen came to visit at a conference in Sydney.  He said he thought this was in 2018, but was not clear. 

25. I asked the applicant whether he had protested against that.  He said that yes, he had always participated.  He then recollected that the 7 January 2019 event was about the invasion of Vietnam against Cambodia.  I find that due to this shifting and vague evidence the applicant is a person who has anti-government opinions, but maintains an undetailed and vague interest in Cambodian politics.  I do not accept that he has gone to protests.  I do not accept he is involved in organisation.  I do not accept that he is of interest to the Cambodian authorities.  The tribunal has considered country information in this regard.  The US State Department’s Cambodia 2018 human rights report is relevant.  The tribunal notes, on page 1, that Hun Sen has served for 33 years.  Civilian authorities maintained effective control over the security forces, which often threatened force against those who opposed Prime Minister Hun Sen and were generally perceived as an armed wing of the ruling CPP.

26. There are unlawful or arbitrary killings carried out by the government, or on its behalf, forced disappearance carried out by the government, torture by the government, arbitrary arrests by the government, political prisoners and arbitrary interference in the private lives of citizens.  It notes on page 2 that torture and cruel and inhuman punishment is prohibited, but this is ignored by military and police officials.  Arbitrary arrests and detention, which is also prohibited, actually occur.  On page 6 it says there were credible reports that police officials committed abuses with impunity, and in most cases the government took little or no action. 

27. The report paints a bleak picture of human rights and freedom of expression in Cambodia.  Nonetheless, I have no evidence before me, and there are no credible claims before me, that the applicant has been subject to, or will in the future be subject to, such abuses.  This is because his descriptions are simply implausible, and he cannot link events such as the 1997 coup and other matters he raised to his own personal situation.  The applicant shifted his claim to that the military policeman knew that he was in the resistance.  I do not accept that the military policeman knew that the applicant had been so affected when he was in a refugee camp in [Country 1].

28. I asked the applicant how the military policeman knew that he was in the resistance.  He said that the military policeman had come and saw him at an event during a political campaign in 1993.  I asked the applicant whether he knew the military policeman at that time - 1993.  The applicant said no, he did not know him then.  Keeping in mind the claim that the persecution began in 1998, I asked how the military policeman could then remember the applicant in 1998.  I asked whether the military policeman remembered his face from five years before.  He said that during that period the party could reunite.  He said “in a Communist regime we are living in vigilance”.  He spoke again of Hun Sen.

29. I asked the applicant whether he had any other reason for persecution or was at risk of significant harm.  He said he feared the authorities.  The tribunal finds that the applicant’s account of how the military policeman knew him before 1998 to be improbable.  The applicant could not establish why he was being targeted in 1998.  I find that the parties had never met one another until then.  I find that the military policeman knew nothing of him up until then.  I find that the applicant was not targeted for membership of any social group, political view or reason and the applicant was not targeted, nor was his son.  I find that the applicant and the military policeman had a dispute over land.  I find that that land is no longer owned by the applicant and that they are at no risk of having a dispute in the future if he were to return to Cambodia.

30. The applicant has not established any other reason for persecution or that he will be significantly harmed.  Despite my explaining the concerns that I have, he was unable to explain why he remained in Cambodia for many years why he was physically unharmed, and why his political views or his social group background would affect him in the future or had affected him in the past.

31. The tribunal does not accept that if he were returned he would face any chance of being harmed for property dispute reasons, political opinion, having lived in a refugee camp, views about the opposition and the government, or for any other reason by the military policeman, his allies, his neighbours, the government, the authorities, people who are against him or anybody else.

32. The tribunal finds there is no real chance that the applicant will be harmed for any other reason on return to Cambodia now or in the reasonably foreseeable future and for these reasons I also accept there is no real chance of serious harm.  I therefore do not accept he would be significantly harmed on the basis of the things that I have accepted.  I am not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence, now or in the reasonably foreseeable future.

33. Having concluded that the applicant does not meet the refugee criteria, and not being satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a), I turn to the alternative complementary protection criteria. The tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa). 

34. There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as someone who meets either of these criteria.  Therefore the applicant does not satisfy the criteria in section 36(2).  The tribunal affirms the decision not to grant the applicant a protection visa.

35. The time is now 1.15 pm and the tribunal makes the following decision.

    DECISION

36. The Tribunal affirms the decision under review.

    Justin Meyer
    Member