1612601 (Refugee)

[2017] AATA 1209

1612601 (Refugee) [2017] AATA 1209 (26 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612601

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Bruce Henry

DATE:26 June 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 27 June 2017 at 5:29pm

CATCHWORDS

Refugee – Protection visa – Cambodia – Social group – Divorced woman with child – Risk of mistreatment and violence – No family or social support – State protection inadequate

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

CASES
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379Applicant S v MIMA (2004) 217 CLR
MIMA v Respondents S152/2003 (2004) CLR 1

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Cambodia, applied for the visa [in] May 2014 and the delegate refused to grant the visa [in] August 2016.

3. The applicant appeared before the Tribunal on 12 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Under s91R(1)(b) of the Migration Act, persecution must involve serious harm to the person. Section 91R(2) sets out a non-exhaustive list of the types and levels of harm that will meet the serious harm threshold, which includes:

   (a) a threat to the person’s life or liberty;

   (b) significant physical harassment of the person;

   (c) significant physical ill-treatment of the person;

   (d) significant economic hardship that threatens the person’s capacity to subsist;

   (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

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’).

   Mandatory considerations

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There is no current DFAT report relevant to Cambodia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Documents on the departmental file establish that the applicant was born in [Cambodia], in [year]. She arrived in Australia on a subclass 300 (Prospective Marriage) visa [in] February 2007. Her subsequent application for subclass 820 and 801 spouse visas was refused by the Department [in] May 2009, and that decision was affirmed by the Migration Review Tribunal on 12 February 2010. She sought judicial review of that decision by the Federal Court, but withdrew that application and applied for Ministerial intervention pursuant to s.351 of the Act. She held a series of bridging visas associated with these applications, the last of which expired [in] June 2011 after her Ministerial intervention request was declined, however the applicant remained in Australia unlawfully until making the application under review [in] May 2014.

12. The applicant stated in her application that she is ethnic Khmer and a Khmer citizen. She provided a copy of the passport that she had used to enter Australia to the Department.

13. The applicant’s claims are set out in a statement written in Khmer that was attached to her application along with a certified translation. She states:

    [In] February 2005, I was engaged to [Mr A] who is a Khmer-Australian. One day in 2003, before I decided to be engaged, I attended a wedding party of my far relative who came from Australia. At that [time] [Mr A]’s mother and also a friend of my far relative, also attended the wedding. The bride who is my relative introduced me to [Mr A]. Few days later, that bride came to my house with [Mr A]’s mother. Immediately, I prepared some snacks for them. I did not know that [Mr A]’s mother likes me. Just before she returned to Australia, she came to meet my mother again and told her that she wanted to engage me to his son, [Mr A]. But, my mother did not accept her proposal yet as she wanted to think beforehand and told them later. After that, they returned to Australia.

    My mother enquired [Mr A]’s background from that far relative (the bride). She said that [Mr A] is a very gentle guy. Hence, both parents started to contact each other. [Mr A]’s mother asked her son that if she engaged a girl for him in Cambodia, what do you he think? He replied that he wanted to see my photos first. My mother also asked me if she wanted to engage me to a man in Australia, what do I think? As a daughter, it depends on my mother. I did not reject anything. Next, I sent some photos [Mr A]. When he saw my photos, he told his mother that he likes. Thus, they decided to come to Cambodia on [date] February 2005 and stayed at my house. During his stay, we got along with each other very well. He told me that he used to be addicted to [substance] and was receiving treatment at that time. Though I knew that I was a [substance] user, I did not hate him, but pity and love him even more.

    On [date] February 2005, we got engaged following Khmer tradition. Many relatives attended our engagement ceremony to be our witnesses. Three days before leaving for Australia, my fiance, [Mr A] talked to me and swore that I am the only person that he loves. I was very excited and hoped that he could provide happiness to me. After he went back to Australia, we always contacted each other via mobile phone two to three times per week. After two years, I got visa and arrived Australia [in] February 2007, but my mother-in-law was the only person who pick me up at the airport. After arrived home, I saw him was playing game in his room. After I arrived Australia I was living in his house and his mother at [address]. We got married [in] March 2007 at his grand mother's house where I forgot the address. After marriage, I had never taken very good care of me, but asked me for money. If I could not give him, he would send me back to my homeland. I could not go back as it would be very ashamed. Many people in my homeland have known that I got married and came to live in Australia. If they knew that I was sent back, my family's image in village would be damaged. This is a very big issue in Cambodian society (marriage). Therefore, to earn money, I found a job in a [workplace].  I also worked as [occupation] or [other occupation]. I wanted to work for any jobs that pay taxes, but he stopped me because he got money from Centrelink. If I worked for any jobs that paying taxes, the government would not give him money. As a result, I had no choices, but just worked illegally. One day, after all day work, I was very tired. When I arrived home, I heard my husband was talking on the phone with another girl happily. He even used loudspeaker at that time. That made me even more tired and hurt. Everything was contract to what he had promised. In 2008, my husband decided to live in [another city]. He told me that over there has a big hospital that can help him get rid of [substance] addiction. I still continued living with my mother-in-law. One day, immigration officers came to check my mother-in-law's house because they did not believe that my husband and I got married genuinely. On that day, I was not at home. I want to emphasize that since the first day that I arrived in Australia, I have been living in my mother-in-law house at her caravan, as the house was too small. On the day that the immigration officers came, I went to work and locked my room. Because my mother-in-law could not open my caravan's door, my mother-in-law and my [sister-in-law] told them a lie by pointing to my sister-in-law's room.

    After finished checking, they leaved. But soon, they sent us a letter to ask my husband and I to take an interview. I called to my husband about this, but he asked me to give him $[amount] otherwise he won't come.

    The interview date arrived and the immigration officer did raise questions about that room. Because my mother-in-law and sister-in-law already planned to tell them a lie, I decided to follow them. Finally, my visa was refused and I was not allowed to stay in Australia anymore. My husband did not care about me, just my mother-in-law who pitied, loved and allowed me to stay in her house. After that, I tried to find a famous solicitor in the city [to] prepare documents for me that enable me to live in Australia as it related to emotional violence, but still I was refused. In July 2009, I worked as a [occupation] in [State 1]. During that time, I met a man named [Mr B]. He was [an employee] there. We started to have a strong relationship until we lived together. In early 2010, he came to [City 2] and rented a house with me. He then sponsored me as his fiance. During the time we were living together, he had relationship with another girl who was my close friend and even like my sister. I was broken heart again. The immigration officers called for another interview (I want to emphasize that when [Mr B] and I were engaged, I already divorced my former husband, [Mr A]). On the interview day, I took the train to the interview place alone because my fiance did not care about me anymore. I felt not good on that day and all the questions were not in my ear. I could not catch up the meaning and did not know how to answer due to hopeless. Finally, the immigration department refused my visa again and asked me to return to my homeland and suggested [Mr B] to marry me and lodge another new application. I could not go back because I was sure that he would not go to Cambodia, as he deeply loved with my friend almost crazy. Finally, we broke up and I also did not go back to my homeland because as what I said before, if I went back, my family and I would be ashamed. I also had no money as all of money had been used to pay the application fee and transaction costs. However, I still want to live in Australia. I love modernize, beauty, no social hierarchy and people obey the laws, and more safety which is far different from my country especially during this period that is very frighten. These made me do not want to go back even more. I had been living here illegally since May 2011 until international new-year day in 2013 at [City 2]. Many things were sold on that day and Khmer signers came from Cambodia to sing in the event. Dancing time was arrived. When I was dancing, I met a man who was dancing next to me. We seemed to interest in each other. He asked for my phone number. After that, we had relationship and made love to each other. At that time, he told me that his name [name]. He came to live in Australia since he was [age]. Until now, he is an Australian citizen. I did not ask him everything because we met each other not very often. One month later, I realized that I got pregnant. I told him about this, but he asked me to abort my child. He turned off his phone and changed his number. Oh god!! Why I always meet such bad things. This is pain over pain. I believe in Buddha. Killing human is an unforgivable sin. Moreover, this child does not know anything. As a mother, how can I kill my child? I could not do that and I even could not go back to my country in this condition. This would be more ashamed for my family and I myself. Forcing me to go back is forcing me to die. Therefore, I beg the immigration department to give rights to my child and me to live in this country.

14. The applicant was interviewed by a departmental officer about her claims [in] July 2016. The decision record of the delegate, which the applicant provided to the Tribunal with her application for review, sets out the following record of the interview (references deleted):

    At the Protection visa interview on [date]/07/2016, the applicant turned up with a child she claimed was her [child], [name] (father's family name), born on [date]. The applicant produced an original [State 1] birth certificate No [number] that confirms this claim. The applicant is shown as the mother of the child in the certificate. The birth certificate does not identify the child's father. The applicant claimed that her child's father is an Australian citizen but has refused to accept the parenthood and prohibited the applicant to disclose his identity under threat of making a report to the Australian· authorities about her bad character, which could lead to her removal. The applicant stated the child was born out of a short-term relationship and that her relationship with her [child]’s father had broken down when the latter learned that the applicant was pregnant. … At the time of this decision, the applicant has not requested to include her [child] into her application for a Protection visa.

15. The delegate summarised the applicant’s claims, and concluded:

    The applicant is now facing the prospect of returning to Cambodia as a divorcee and a single mother with a child born out of wedlock. Out of shame, she did not initially tell her family that she divorced. Divorcees are treated by Cambodian society worse than single women. But now her family knows of her personal situation. She fears however what the reaction of her neighbours might be. She would not be able to live in her home village. If she walks the streets alone, she will be attacked by vigilantes. Her mother is [age] and cannot help, she rather need care herself. Applicant's [siblings] live elsewhere and cannot protect her.         

    Police would not do anything to protect her unless they are paid a bribe. She mentioned that, in 1989, one of her [siblings] had a serious mental health problem and [committed criminal offences]. Even for that kind of urgency, local police arrived with a delay of 2 or 3 hours. It is common.in Cambodia for little conflicts to escalate into deadly fights, and people get killed all the time before the police would react.

    She is afraid to be severely beaten or killed by vigilantes.

16. After discussing these claims, the delegate concluded:

    The applicant maintains that she will be subject of physical violence from persons outside her family circle who disapprove of her divorce and having a child out of wedlock. …

    After studying evidence presented by the applicant in her application and at interview, I conclude that her claimed fears do not amount to genuine risk of persecution.

    I accept that divorced women or women with children born out of wedlock might face serious difficulties and negative societal attitudes in Cambodia, particularly in rural areas.

    Even though the Cambodian Constitution provides equal rights for men and women, in reality their status is quite different. Cambodia has a very hierarchical society and high value is placed on individuals ·behaving properly according to their assigned roles. Gender roles are an important part of this hierarchical structure. Cambodian culture sets out specific rules for both women arid men. Women are expected to respect and support their husbands under all circumstances, regardless of their husbands' faults or shortcomings, or their treatment of their wives. Attitudes about female sexuality are very different from attitudes about male sexuality. Cambodian beliefs place a high value on virginity, which is seen as a necessary condition for marriage. A girl who loses her virginity before marriage brings shame to her family's honour and status.  

    I note however that the applicant left Cambodia after engagement conducted according to traditional rules and married her prospective husband in Australia. I have strong doubts that any further information about her problems in Australia had been shared with persons outside her family. Therefore, there will be no reason for other members of society to suspect her of breaching established practices as her marriage and manner of departure are concerned. It will be however impossible to hide the fact that this marriage terminated in divorce.

    The above quoted report notes that societal attitudes discourage women in abusive relationships from seeking divorce. However it also indicates that divorce is not uncommon in Cambodia and is used as a remedy to resolve, for instance, domestic violence situations.

    Country information suggests that divorced Cambodian women face social stigma and isolation, economic hardship, and limited options for supporting themselves. None of the sources I have consulted however suggest that divorced women or women who have born children outside marriage are physically attacked or killed in Cambodia in the manner of "honour killings" that happen in some other countries. The greatest danger for a woman's wellbeing in Cambodia is, it seems, to live in an abusive and violent marital relationship because she might find it very difficult to disengage from it. The applicant is however past this stage; neither does she claim she would face violence from her former husband's - or for that matter her own - family.

    She also stated at interview that she was too ashamed to tell anyone about her divorce and a child born out of wedlock except her close family. I conclude that vigilantes or neighbours would not be in a position to know about exact circumstances of her divorce and chiId birth. I find it further unlikely that they, even if they have such knowledge, will go to extremes of seriously physically hurting or killing the applicant. That kind of retribution does not seem to be within Buddhist tradition.

    Besides, if the applicant finds the environment in her village too hostile and unbearable, she can relocate to a larger town where she will be able to maintain a greater degree of anonymity and also find better employment prospects. She stated at interview that her siblings live in various cities across Cambodia and [a number] out of her [siblings] work for the Cambodian government. I find that her family has sufficient resources to provide at least the initial support with relocation and search for employment.

    In addition, depending on circumstances, some unmarried women with children may be assessed by the State as 'vulnerable' for the purposes of social protection assistance. The National Social Protection Strategy for the Poor and Vulnerable (NSPS) was officially launched in December 2011 and was 'expected to play a critical role in reducing poverty and inequality' according to a 2011 Social Security report. The Government of Cambodia's NSPS report defines 'poor and vulnerable' groups in society who are the main beneficiaries of the NSPS to include single mothers with children: "Poor and vulnerable children and mothers benefit from social safety nets to reduce poverty and food insecurity and enhance the development

    I

     
    of human capital by improving nutrition, maternal and child health". …

    I am cognisant that serious harm  may take various shapes and is not limited to physical violence alone;  however, given the above country information and applicant's personal circumstances, I am not satisfied that mere economic difficulties the applicant might experience due to her single-mother status would reach the threshold of persecution or result in her inability to sustain a living.

    I am also not satisfied that she would face life-threatening circumstances such as physical harm or death in Cambodia for the mere reason of being a divorced single mother.

1. The applicant lodged her review application with the Tribunal on 12 August 2016, however she did not provide any additional information or other evidence in support of her claims for protection.

   Other material before the Tribunal

2. The Tribunal has before it a copy of the decision of the Migration Review Tribunal in MRT Case No.0904235, 12 February 2010, which relates to the applicant’s application for a spouse visa. In rejecting that application, the Tribunal said:

   44.The Tribunal notes that the claims of domestic violence emerged only after the delegate’s decision and while the review application was in progress. On the basis of extensive and cumulative contradictions and evasions in the evidence given by the visa applicant, the Tribunal has formed the view that she is not a witness whose evidence can be relied upon.

   45.The Tribunal is conscious that, regardless of its reservations about the credibility and reliability of the visa applicant’s evidence, the Tribunal’s role in considering a claim of domestic violence is limited to an assessment of whether evidence is given in the prescribed form by appropriately qualified persons and is capable, as a matter of law, of affording the basis for the opinion that relevant domestic violence occurred. …

3. The Tribunal rejected the applicant’s claim in that case as the requisite evidence of domestic violence had not been provided.

   The Tribunal hearing

4. At the hearing the applicant gave evidence generally consistent with the statement that was attached to her application. She told the Tribunal that she could not return to Cambodia as she would face shame because she would be seen to be a divorced woman with a child. She said that because of Cambodian attitudes to such women she would face sexual violence and humiliation, and she feared for her own safety and that of her [child].

5. The applicant said that she would be unable to return to her family’s home in Cambodia because her mother, whom she said is her foster mother, not her natural mother, no longer regarded her as a daughter because she had married and gone to Australia. She said that her siblings, none of whom are her natural siblings, would also refuse to provide her with any assistance. She said that her siblings had their own families, and also provide financial support for her mother.

6. The applicant told the Tribunal that her [child]’s father is an Australian citizen, however he has refused to acknowledge paternity of the child, and as a result her [child]’s citizenship has not been recognised. Both she and her representative described the efforts that they had made to locate the father so that he could be compelled to undergo a paternity test. Her representative said that he had prepared the necessary documents for an application to the Family Court, but as they had been unable to locate the father the matter had not proceeded.

7. The applicant told the Tribunal that she would have no option but to take her [child] back to Cambodia with her if she was forced to return, as [the child]’s father would not accept responsibility for [the child] even if his paternity was established.

   Country of reference

8. The applicant claims to be a Cambodian citizen, and provided a copy of the passport that she used to enter Australia to the Department with her application, along with a number of personal identifiers. Based on the copy of her passport, the Tribunal is satisfied that Cambodia is her country of nationality and also her receiving country.

   Assessment of claims

9. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims. This requires an assessment of the applicant’s credibility and a consideration of the relevant country information available to the Tribunal.

10. The applicant’s evidence to the Tribunal was generally consistent with the claims set out in the decision record that she provided to the Tribunal and that she made at her interview with a departmental officer. The Tribunal found her claims to be clear, coherent, and consistent with the available country information set out in the attachment.

11. The country information states that ‘Gender-based violence is prevalent in Cambodia’, and that ‘the reality is that Cambodian women still face an unacceptable risk of rape, trafficking, sexual exploitation and sexual harassment’ (joint 2011 NGO-CEDAW and Cambodian Committee for Women (CAMBOW) report). The report also states that ‘rape and other forms of sexual abuse – including violent rape, gang rape and child rape – are extremely prevalent’, a conclusion supported by the most recent US Department of State report of Cambodia. These reports must also be viewed in the context of the prevailing attitudes to women in the country, and the lack of societal or family support for unmarried women with children. The reports indicate that whilst it is rare in Cambodia for divorced separated or unmarried women to have children, when women find themselves in this position they receive little support.

12. In the applicant’s case, she has no natural family in Cambodia, and given the available information the Tribunal accepts her claim that her foster family would not provide her with the necessary support and protection she would require should she return to Cambodia with her [child]. The next issue, then, is whether there is a real chance that she would face persecution should she return.

13. The Tribunal notes that in discussing the ‘real chance’ test formulated by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan), the Refugee Law Guidelines state:

    8.3.2      The ‘real chance’ test

    Australian courts have developed the ‘real chance’ test as a tool to assess the objective element of well-founded fear. A fear will be objectively well-founded if there is a real chance of it occurring. The ‘real chance’ test was established by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs(‘Chan’). In Chan Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’, for example a ‘reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’. Mason CJ was of the opinion that there was no significant difference in these expressions, but preferred the expression ‘ a real chance’ because it conveyed the notion of a substantial chance, as distinct from a remote chance, of persecution occurring. For this reason, it is the test that is applied in Australia.It was expressed as follows:

    ·     a real chance discounts what is remote or insubstantial

    ·     conjecture or surmise is not enough

    ·     a real chance is one that is not remote, regardless of whether it is less or more than 50%

    ·     an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10% chance that he will be persecuted, however, a far-fetched possibility of persecution must be excluded.

    A ‘real chance’ is therefore a possibility that is not remote or far-fetched, and is not measured by a set percentage.

14. Applying these principles, and having regard to the information on Cambodia set out in the Attachment, the Tribunal is satisfied that there is a possibility that is neither remote nor far-fetched that should the applicant return to Cambodia, she would face sexual violence or exploitation, and that this constitutes significant physical ill-treatment for the purposes of s.91R(2) of the Act and is thus serious harm for the purposes of s.91R(1).

15. In considering whether the reason for the treatment feared by the applicant falls within the Refugees Convention, the Tribunal has again had regard to the Refugee Law Guidelines, which relevantly state:

    7.5.12      Gender-based particular social group claims

    In principle, membership of a particular social group may be based on gender. Australian courts have accepted that ‘single women in India’,262 ‘married women in Tanzania’263 and ‘young Somali women’264, may constitute particular social groups for the purposes of the Convention in the particular circumstances of these cases. In a number of cases, courts have also discussed whether ‘able bodied Afghan men’ could be a particular social group.

    In Minister for Immigration and Multicultural Affairs v Khawar, Gleeson CJ found that it was open to the RRT to determine that ‘women in Pakistan’ were a particular social group. Justices McHugh and Gummow held that it was open to the RRT on the material before it to determine that there was a social group in Pakistan comprising, at its narrowest, ‘married women living in a household which did not include a male blood relation to whom the woman might look for protection against violence by members of the household’.

    Courts in Canada, the United Kingdom and the United States have also found women in certain circumstances to constitute a particular social group. According to Hathaway J, The Law of Refugee Status (1991) at page 162:

    Gender-based groups are clear examples of social subsets defined by an innate and immutable characteristic. Thus although gender is not an independently enumerated ground for Convention protection, it is properly within the ambit of the social group category.

    The principle in Khawar was discussed in SZONJ v MIAC266 which concerned the extent to which the Convention extends protection to women who fear domestic violence. In SZONJ, the Fijian applicant claimed that the government’s failure to protect her from her husband’s violence arose from her membership of one of three social groups: women in Fiji, women who have left their husbands in Fiji; or women who refuse to conform to the social norms of Fijian Indo Society.267 In their discussion of Khawar the Full Federal Court noted that while the inability of the state to afford protection may contribute to a finding that the applicant’s fear is well-founded, it does not necessarily give rise to a Convention nexus:

    The correct inquiry was not into the adequacy or otherwise of the protection afforded to women who were victims of domestic violence in Fiji but, in contradistinction, into the motives of the state and whether the failure by Fiji to protect such victims was itself a manifestation of a persecutory policy directed towards them.

    Australian courts have also found that ‘young single women in China’ ‘single women without protection in Sri Lanka’, unwed mothers in Japan’ and ‘females in Thailand’ were probably not particular social groups for the purpose of the Convention in the particular circumstances of these cases. The Federal Court noted in S469of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs that the question of whether a particular group could constitute a particular social group for the purposes of the Convention is a matter of fact based on the evidence before the decision maker. This illustrates the importance of looking at the individual facts of a case and the particular circumstances of the society in question to assess whether a cognisable group exists at the relevant time. Furthermore, when assessing gender-related claims by asylum seekers, decision makers should also have regard to the department’s Gender Guidelines.

16. In light of the country information set out in the attachment, particularly the sections of the US Department of State report relating to sexual violence against women and sexual exploitation, the Tribunal also finds for the purposes of s.91R(1)(c) that such persecution would involve systematic and discriminatory conduct deliberately directed at her because of her membership of the particular social group comprising ‘unmarried women with children in Cambodia’. The Tribunal is satisfied that this is a ‘particular social group’ within the meaning of the Refugees Convention having regard to the principles set out by the High Court in Applicant S[1]. The group is identifiable by their gender and by the facts that they are known to have been previously married and have children. They are a distinct and recognisable group within Cambodia.

    [1] Applicant S v MIMA (2004) 217 CLR 387 at [36] (Gleeson CJ, Gummow and Kirby JJ

17. The Tribunal is also satisfied that for the purposes of s.91R(1)(a) of the Act, the essential and significant reasons for the persecution feared by the applicant is her membership of the particular social group of unmarried women with children in Cambodia.

    Availability of state protection

18. The Tribunal notes the information from the US State Department that woman cannot obtain sufficient protection against violence from state authorities in Cambodia. On the basis of this country information the Tribunal is satisfied that as an unmarried woman with a child the applicant cannot expect that the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) CLR 1 would be available in Cambodia.

19. The Tribunal is therefore satisfied that adequate state protection would not be available to the applicant in Cambodia.

20. The Tribunal is also satisfied on the available country information that it would not be reasonable for the applicant to relocate to another part of the country, given the lack of family and societal support available to her. 

21. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason should she return to Cambodia, now or in the reasonably foreseeable future. 

22. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    Comment on the applicant’s child

23. As noted above, the citizenship of the applicant’s [child] appears to be unresolved. If it were to be established that [the child] is the child of an Australian citizen, then as a consequence of [the child’s] birth in Australia [the child] would also be an Australian citizen. On the facts before the Tribunal, however, it is not possible to make a finding on that matter.

24. In any event, the Tribunal notes that the applicant’s child is not an applicant in these proceedings. The applicant has chosen not to add [the child] to the application for protection as she continues to seek to establish that her [child] is an Australian citizen. It is unnecessary therefore, for the Tribunal to make findings about the eligibility of the applicant’s [child] for protection in Australia, notwithstanding the country information regarding the vulnerability of children in Cambodia to trafficking and sexual exploitation. Given the outcome of [the child’s] mother’s application, it will not be necessary for the child to be exposed to those risks.

    DECISION

25. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Bruce Henry
    Member

    
    

    ATTACHMENT

    Country information

26. A 2010 report by Amnesty International[2] highlights the concern held by the UN committee that monitors the implementation of the International Convention on the Elimination of Discrimination against Women regarding ‘strong gender-role stereotyping’ in Cambodian society. This concern manifests from the ‘traditional code of conduct known as chbab srey, or “women’s law”’. According to the NGO-CEDAW Committee, ‘chbab srey legitimizes discrimination against women and impedes women’s full enjoyment of their human rights. Chbab srey presents moral principles for women, instructing women to serve and respect their husbands at all times, and never to raise domestic problems outside the house.’ However, the report does note that Cambodia has made efforts to promote gender equality in-part by removing chbab srey from the national school curriculum in 2007.

    [2] Amnesty International 2010, Breaking the Silence - Sexual violence in Cambodia, March, Section 5, p.45

27. A joint 2011 NGO-CEDAW and Cambodian Committee for Women (CAMBOW)[3] report asserts that chbab srey regulates the female population and has the effect of creating ‘high rates of illiteracy among women and restrains their movements and opportunities.’ The report further notes that as a consequence of chbab srey, ‘women, at all levels, are more vulnerable to poverty than men. Women not only have lower incomes, but also lack access to certain economic opportunities due to discriminatory attitudes which limit their occupational choices.’ The report further argues chbab srey inhibits the promotion of gender equality in society despite the State’s efforts to promote gender equality through the constitution and legislative instruments.

    [3] Cambodian NGO-CEDAW Committee and Cambodian Committee for Women 2011, Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women in Cambodia, March, p.3, available at  accessed 23 June 2017

28. The report states[4]:

    [4] Op cit, p.65

    Gender-based violence is prevalent in Cambodia despite also being under-reported. Incidences of domestic violence remained high over the past decade, while reported cases of rape have increased. Reliable data on the frequency of sexual exploitation is unavailable, although it appears to be entrenched in Cambodian society. Traditional gender relations assign women lower status than men, with women receiving lower levels of education and occupying fewer positions of power. Gender-based violence is usually hidden by the veil of silence and shame; there is a misconception that reporting could bring stigmatization. The problem must also be viewed in the context of Cambodia’s wider culture of violence and impunity, where violence is an accepted way of resolving conflicts and perpetrators are rarely punished.
    The government and non-governmental organizations have been working to protect women’s rights on issues such as domestic violence, trafficking, rape, etc. The government’s National Action Plan to Prevent Violence on Women has been adopted by the Council of Ministers as guidance for further intervention. Significant progress has been achieved in strengthening the legal framework used to address violence against women. A total of eight laws have been adopted to protect women’s rights, not including the Cambodian Constitution, which also contains provisions protecting women’s rights. Cambodia has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)55, it is a member of the International Labour Organization (ILO) and it has ratified more than 10 international instruments providing fundamental protection for female workers. Cambodia has pledged to fulfil the Millennium Development Goals (MDGs).
    Despite these efforts, the reality is that Cambodian women still face an unacceptable risk of rape, trafficking, sexual exploitation and sexual harassment.

29. In relation to the trafficking of women and girls, after setting out the definition of trafficking in Article 3 of the Cambodian Trafficking Law, the report states:

    Although the definition of trafficking appears to be detailed, it fails to take into account the multitude of acts that can be considered trafficking. The definition covers some of the more common forms of trafficking involving the promise of money, the use of threats, force or drugs and deceit.
    In order to suppress all forms of trafficking, the definition needs to be comprehensive enough to take into account every possible way in which a person may be trafficked. For example, the current definition does not explicitly cover the situation where a girl is sold by her parents in order to pay a debt, a common occurrence in Cambodia. The girl who is being trafficked is not lured or promised money and may not even be forced to go with the trafficker; she may merely be obeying her parents‟ wishes and helping her family. Clearly she is being trafficked, but the current Trafficking Law is silent on this point. In 1996, Cambodia passed the Law on the Suppression of Kidnapping, Trafficking and Exploitation of Human Beings (Trafficking Law) in response to a rapidly expanding trafficking industry which was fuelled by the demand for sex workers. Again, this law does not clearly consider a girl sold by her parents to be a victim of trafficking.

1. The report also discusses the prevalence of rape in Cambodian society[5]:

   [5] Op cit, p.67

   Rape is a serious problem in Cambodia. It is reported almost daily in the local newspapers. Most victims do not dare to denounce their abusers because they are afraid of being stigmatized. The loss of a girl’s virginity before marriage is viewed as bringing shame on her family’s honour and status. Due to the lack of reporting and the culture of impunity, rapists often remain at large, potentially committing more offenses.
   Available data indicates that rape and other forms of sexual abuse – including violent rape, gang rape and child rape – are extremely prevalent, though it is impossible to know the full extent of the problem. Rape in Cambodia must be viewed within the context of Cambodian cultural and social attitudes towards women and sexuality. Men are perceived as having more value than women and women are supposed to be subservient to them. In this context many men do not respect women’s rights to be free from sexual or other violence and many women are not confident in asserting their rights. Traditionally, women are expected to remain virgins until marriage and a girl who loses her virginity beforehand (even through rape) is often considered to be “unmarriageable”. The shame and trauma of being raped (felt by victims of rape in many countries) is exacerbated in Cambodia by prevailing societal attitudes. …
   The research paper “Violence against women and sexual exploitation” from the Ministry of Women‟s Affairs indicates that incidence of rape is underreported and it is difficult to estimate prevalence rates. However, reports of rape to NGOs and media have increased from year-to-year. LICADHO, a local human rights NGO which works in 12 provinces and Phnom Penh, reported an increase in the number of rapes it documented, from 66 in 2005 to 297 in 2010 (including 222 cases involving minors and 6 murder-rape cases).
   Gang rape appears to be more commonly practiced by specific groups of men, including young urban men and university students. But the number of cases is not as high as those by individual men. According to the paper mentioned above, gang rape of sex workers, garment workers and women working in vulnerable occupations such as beer promotion and karaoke continues to be reported to NGOs and in the media. The incidence of gang rape appears to be increasing both among sex workers and other women. In 2010, 14 instances of gang rape have been documented by LICADHO.

2. In 2014, Cambodia ranked 108th out of 142 countries in the Global Gender Gap Index[6].

   [6] Suy, P 2015, ‘PM Urges Gender Equality’, Khmer Times, 28 September 2015, available at  accessed 23 June 2017

3. In relation to the position of unmarried women with children, a 2013 Cambodian government health report[7] incorporating 2010 Cambodia Demographic and Health Survey (CDHS) statistical data on childbirth by unmarried women in Cambodia notes that ‘births to unmarried women are not commonly reported in Cambodia’. The report also states that ‘Childbirth outside marriage is rarely reported in all age groups’, and includes a table which indicates that less than 0.1% of women aged between 15 and 49 are unmarried mothers, while 6.3% are widowed, separated or divorced mothers.

   [7] Meng, K, Po, M, & Thiep, C 2013, Teenage Fertility and its Socio-Demographic Characteristics and Risk Factors: Further Analysis of the Cambodia Demographic and Health Survey, National Institute of Statistics, Ministry of Planning and Directorate General for Health, Ministry of Health, April, pp.7-8, available at >

   The United Nations Population Fund, UNFPA, states on the website for its office in Cambodia[8] under the heading ‘Human rights & gender equality’:

   [8] United Nations Population Fund, available at accessed 26 June 2017

   In a culture with unequal power relations between men and women, gender-based violence is common, especially among vulnerable groups (eg migrant garment factory workers). One in five women aged 15 to 49 has experienced physical violence since the age of 15.

4. According to the US Department of State Country Reports on Human Rights Practices for 2017 – Cambodia women have equal rights under Cambodia’s constitution[9]:

   [9] United States Department of State, 2016 Country Reports on Human Rights Practices - Cambodia, 3 March 2017, available at: accessed 23 June 2017

   The constitution provides for equal rights for women, equal pay for equal work, and equal status in marriage. For the most part, women had equal property rights, the same legal status to bring divorce proceedings, and equal access to education and some jobs; however, cultural traditions and child rearing responsibilities limited the ability of women to reach senior positions in business or even participate in the work force…

5. However, the US Department of State report notes that although the ‘constitution prohibits discrimination based on … gender …, the government did not generally effectively enforce these prohibitions.’

   Rape and Domestic Violence: The law criminalizes rape and assault. Local and international NGOs reported that violence against women, including domestic violence and rape, was common. Rape is punishable by a prison sentence of five to 30 years. Spousal rape is not specifically mentioned in the penal code, but the underlying conduct can be prosecuted as "rape," "causing injury," or "indecent assault." Charges for spousal rape under the penal code and the domestic violence law were rare. The domestic violence law criminalizes domestic violence but does not set out specific penalties. The penal code can be used to punish domestic violence offenses, with penalties ranging from one to 15 years' imprisonment. According to a report by Amnesty International, there was only one public hospital in each province and several larger hospitals in Phnom Penh that had adequate facilities to examine rape victims and issue certificates that were admissible as evidence in court.
   As of October 2015, ADHOC received 183 reports of rape, three resulting in the death of the victim. Of these the courts tried 33 cases, local authorities mediated one case, and the remainder awaited trial. As of August ADHOC received 114 reports of domestic violence that resulted in serious injury. Reported cases of rape and domestic violence increased compared with the same period in 2014 but were likely underreported due to women's fear of reprisal by perpetrators. In January the Ministry of Planning and the Ministry of Women's Affairs released the National Survey on Women's Health and Life Experiences. It revealed that one in five women in the country experienced sexual and/or domestic violence. Cases of rape, according to the Ministry of Interior, increased by 12 percent in 2015 compared with 2014, despite an overall drop in crime. In a 2013 UN report, nearly 20 percent of 1,863 men interviewed admitted to raping a woman.

6. In relation to the situation for Cambodian children, the report states:

   Child Abuse: Child abuse was common and legal action against perpetrators was rare, according to observers. A 2014 study by the United Nations Children's Fund found that 61 percent of female respondents and 58 percent of male respondents between 13 and 17 years faced domestic violence. Child rape continued to be a serious problem. ADHOC received reports of 99 cases of rape and attempted rape committed against persons younger than 18 years. Licadho investigated 116 rape cases, including four cases of gang rape.
   Early and Forced Marriage: The legal minimum age of marriage for boys and girls is 18 years; however, children as young as 16 years may legally marry with parental permission. Culturally child marriage was not considered a problem. The government and a local NGO took steps to raise awareness of the legal minimum-age requirement.
   Sexual Exploitation of Children: Sexual intercourse with a person younger than 15 years is illegal. The government continued to raid brothels to identify and remove child sex trafficking victims, although the majority of child sex trafficking was clandestine, occurring in "indirect" sex establishments such as beer gardens, massage parlors, salons, karaoke bars, and noncommercial sites. Police continued to investigate cases of child sex trafficking that occurred in brothels or cases where victims brought complaints directly but did not typically pursue more-complicated cases. The government did not issue formal guidance allowing the use of undercover investigation techniques in trafficking investigations, and the lack of explicit authority continued to impede officials' ability to hold child sex traffickers fully accountable.
   The country remained a destination for child sex tourism. An NGO report released in 2015 examined the prevalence of children among persons in commercial sex establishments in three key cities and found that children comprised 2.2 percent of this population, compared with 8.2 percent in 2013. The government used the law to prosecute both sex tourists and citizens for exploiting children in prostitution. The law provides penalties ranging from two to 15 years in prison for commercial sexual exploitation of children. The law also prohibits the production and possession of child pornography.
   According to a local human rights organization, perpetrators with ties to the government were not held accountable under the law, and local experts reported concern about the government's failure to impose appropriate punishments on foreign nationals who purchase commercial sex acts with children. Endemic corruption at all levels of the government severely limited the ability of individual officials to make progress in holding child sex traffickers accountable, and the government took no action to investigate or prosecute complicit officials.