1614628 (Refugee)

1614628 (Refugee) [2019] AATA 6832 (29 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614628
COUNTRY OF REFERENCE:                   Cambodia
MEMBER:Justin Meyer
DATE:29 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 29 October 2019 at 3:45pm

CATCHWORDS
REFUGEE – protection visa – Cambodia – imputed political opinion – association with government critics – perceived support for opposition party – accusation of financing political party – fear of kidnapping – fear of harm from authorities – threats to burn down restaurant – forced closure of restaurant – protests outside of restaurant – family feud – claim of disadvantaged in future employment – threatening calls in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 91R, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1999) 93 FCR 220

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Cambodia, applied for the visas on 17 June 2014 and the delegate refused to grant the visas on 31 August 2016.
The applicants appeared before the Tribunal on 16 April 2019 and 16 July 2019 to give evidence and present arguments. The first named applicant (“A1”) [gave] oral evidence. The Tribunal also received oral evidence from [the] third named applicant (“A3”). The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
A1 and the second applicant (“A2”) are wife and husband.
A3, the parties’ son, was a minor at the time of application.
The fourth applicant (“A4”), the parties’ daughter, was also a minor at the time of application.
A2, A3 and A4 do not make separate claims.
All applicants are Cambodian nationals as indicated in passport and identity documentation shown to the department and the Tribunal. I accept that this is their nationality and Cambodia is their potential receiving country.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether or not the applicants meet the criteria for a Protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicants’ claims to the department:
A1 is a [age] year-old [now [age] year-old] married female from Phnom Penh, Cambodia. She is a Buddhist and speaks, reads and writes Khmer. She married A2 in 1990 and they have two children, A3 and A4.
In 2005 and 2007 A1 and A4 visited Australia briefly as tourists. A3 studied in Australia as an overseas student from [date] to [date].
On 19 March 2014 the applicants applied for a Tourist (subclass 600) visa to visit the A1's brother and parents in Australia. They were granted a one month visa and arrived in Australia [in] May 2014.
On 17 June 2014 the applicants lodged this application for a Protection (subclass 866) visa. They are currently holding a Bridging (subclass 010) visa granted in association with this application.
In their written claims the applicants, stated that:
·A1 and A2 were restaurateurs in Cambodia. In 1990 they took over the restaurant, [Restaurant 1], founded by A2’s father. The restaurant was located at the front of a building owned by the second named applicant's parents [in a location], a popular tourist destination. The restaurant employed [number] staff and had a capacity of sitting up to [number] guests.
·A2 looked after the staff and supplies, whilst A1 managed the money and customer service. The applicants resided [at the back] of the building. The A2’s parents also live in the building.
·Due to its [location], the restaurant attracted many tourists and politicians and was very popular amongst the locals, Members of the Sam Rainsy Party started frequenting the restaurant in early 2009.
·Since March 2009 young male thugs started to appear in the restaurant. They would refuse to pay after they had dined and wined. On their third visit, they alleged that it was better for them to cat here than Sam Rainsy and his supporters
·In April 2009 A1 started receiving anonymous phone calls accusing her of financing the Sam Rainsy Party and the anti-government protests. During one of the phone calls A1 heard the name Sao Sokah being mentioned by someone in the background, which led her to believe that they were affiliated with Lieutenant General Sao Sokah, a commander in the military police. The thugs demanded the A1 to close down the restaurant before [May] 2009 and threatened to burn down the restaurant and kidnap A4, if A1 did not comply with their request.
·A1 closed down the restaurant [in] May 2009 hastily. [In] September 2009 A1 and A2 opened up a new restaurant, [Restaurant 2], in [Phnom Penh].
·In 2011 protests were held in Phnom Penh. In June and July, on three different occasions, approximately [number] wounded protesters went into A1's new restaurant for temporary shelter. They were then taken away by the police. On the third occasion A1 was recognised as the owner of her previous restaurant and was accused of providing shelter to the protesters. The police threatened to ransack the restaurant if protesters were found there again.
·On [a date in] 2011, at approximately 2pm, two customers were taken away from the restaurant by some thugs and were badly beaten on the footpath. A1 was warned not to let these two people in again as they were bad journalists. A year later A1 found out that one of the two journalists was Hang Serei Odom, who was found dead on 11 September 2012.
·[In] August 2011 [number] of A1's staff members went outside the restaurant to watch the protest. They were mistaken for protesters by the police and were arrested. A1 organised to pay [amount] each to bail them out. At the police station, A1 was accused of inciting her employees to protest and working with local and Western journalists, as A3, who studied in Australia, was seen talking with Western journalists in English. A1 was also threatened with rape at the police station. She was only released with her [employees] when A2 paid an additional [amount].
·[In] September 2011, at around dinner time, a group of five or six thugs held A1 at gun point, requesting her to shut down the business, after they had finished eating and drinking there. A1 and A2 decided to abandon the restaurant [in] September 2011.
·In early 2013 A1 and A2 were invited by a friend to manage [Business 1] in [a named] province. [Business 1] started operation [in] May 2013 and employed [number] people. It was however closed down by thugs [in] January 2014 due to the owner's affiliation with the opposition party. A2 lost his car and the owner of [Business 1] lost [a large sum that] he invested in [Business 1].
·A1 fears that if she and her family were to return to Cambodia now or in the reasonably foreseeable future, they would be kidnapped, raped and killed due to their perceived support for the opposition party and their perceived wealth.
·They fear harm from the Cambodian authorities. A1 does not believe that state protection is available to her and her family or that they could relocate within Cambodia to alleviate the apprehended fear.
Written submission of the applicant of 28 March 2019 (as written and without corrections):
·“The delegate drew adverse inference from some honest and authentic answers at the interview out of context, the authentic answers involved geographic close proximity between two restaurants where harm occurred and her home address, based on this adverse inference the delegate raised serious concerns about the claimed fear of harm from the authorities due to an imputed political opinion, in plain words the delegate did not believe the applicant subjectively held a fear, even though the traumatised account of past events were not discredited.
·Clearly, a paradox arises from the delegate’s concerns as to how it is humanly possible for someone who has been traumatised by politically motivated harm would have subjectively held no fear of harm, the delegate’s assertion goes against “commonsense and the ordinary experience of mankind” (MIMA v Rajalingam (1999) 93 FCR 220 at [140] per Kenny J. also quoted in AAT guidelines to refugee law under the title “3 well-founded fear”, page 22, issued in December 2018. Since the close proximity issues became a starting point for delegate’s concerns and subsequently became sticking point in delegate’s reasoning process, this submission will be focused on clarifying some doubt over concerned issues and expanding substratum of facts that the applicant did not have chance to highlight at the interview. We submit that the substratum is the missing dots in the applicant’s life and once linked together they formed the foundation in totality to support the application for a protection visa.
·The issue of close proximity between first closed restaurant and second closed restaurant and rented residence.
Given the [location] and popularity of the first restaurant, the applicant believed that as long as she started a new no-fame restaurant on a much smaller scale, she would not attract the previous customers from opposition party as well as politically motivated thugs sent by Hun Sen regime, because the new restaurant had no [private rooms] for meeting purpose. The new restaurant stands in sharp contrast with the old one which was magnificent in its prime time. A random google search found a photo with a note taken by a traveller photographer; it is the evidence of the glamour of the first restaurant (see uploaded google photo). It was the state of mind of the applicant back then that she could stay away from thugs’ adversary attention for the time being. Somehow the forced closure of the second restaurant proved it was just a wishful thinking.
As for [number] kilometre close proximity between the two restaurant, the applicant explained that, to Cambodian sense of distance, [number] kilometre is not a short distance, people in Khnom Penh would ride motor bike even for a one-kilometre journey to buy things, she further explained [number] kilometre feels like the distance from [Location 1] to [another location] in [City 1]. We submit this is a reasonable explanation, similar sense could be found in weather reading of Australian Bureau of Meteorology Weather application, which always show two figures: 22 degrees Celsius, and then also says “ feels like “ 18 degree Celsius, both are true. Without awareness of this difference of geographical sense between Australian and Cambodian, the delegate incorrectly inferred that the applicant had no fear of harm; clearly, it was the delegate’s logic that the applicant should have run far away. The applicant further explained that she believes in fortune telling with Buddhist element, the result she got was that the location of the second restaurant was good enough to make some money to support her family and the location of her second rented residence, which was a few hundred meters away from the restaurant, was one of good Fengshui” with no evil would land upon. The applicant and her family are so much into believing Buddhism that they even chose to rent a house [near a] Buddhist temple in the suburb of [Location 1] [in an Australian state].
·The issue of similar name [Restaurant 1] used for both restaurants.
[Restaurant 1] is a popular Cambodian name which means [details deleted]. A random search in [Social Media 1] found many Cambodians have this name, and also many small businesses use [Restaurant 1] as their business names. The applicant’s second restaurant’s name [Restaurant 2, which uses one of the words in Restaurant 1] is just another one in the [Restaurant 1] crowd, which is not standing out and non-eye catching. The name itself does not necessarily point at the applicant; it does not reveal directly that the applicant is the owner of the first closed restaurant. The similarity of the names leads the delegate to incorrectly infer that the applicant does not have fear of harm; this reasoning does not reflect reality in the applicant’s working life.
·The issue of having no knowledge of the first restaurant being re-opened by the applicant’s sister-in-law under similar name. The applicant explained that there has been family feud for a long time, her father-in-law had always been over protective of her sister and brothers-in-law, who are younger siblings of her husband. Her father-in-law made her and her husband work hard to support the extended family, treated them as ATM machine for the younger siblings, the applicant and husband were fed up, stopped talking to the younger siblings long before the closure of the first restaurant, that was the reason why the applicant did not bother to tell them the real reason why they had to close the first restaurant, on the other hand the applicant did not want to make her father-in-law feel more scarred as he already blamed them for not looking after customers from government well enough. When the applicant said at the interview that she knew nothing about the first restaurant being re-opened by her sister-in-law, she simply meant she did not know how her sister-in-law ran the restaurant, because her sister-in-law had no experience, and she did not care about it, because they had no contact with each other, when the delegate showed her the googled photo of the re-opened restaurant at the interview, her first reaction was that she did not expect that it would look like this, which means the previous glamor was gone, it looked so plain, so uninteresting, so alien to her. At the interview the applicant did not reveal the long simmering family feud that led her to having no knowledge of the re-opened restaurant, simply because the delegate and the interpreter were strangers to her, she would feel embarrassed to tell family feud to the first-timer strangers, we submit that in any culture no one would like to air dirty laundry in public, especially to strangers.
·Two brutal murders triggered more well-founded fear of persecution. More than a year after the applicant arrived in Australia, she learnt from Cambodian news that a good friend named [name deleted] (based on Khmer pronunciation), [was] gunned down and the murder scene was caught on [camera], it was terribly disturbing for viewing. The applicant claimed that the last time she and her husband saw her was two weeks before her family departed for Australia, the applicant recalled that the good friend was also a frequent customer to her first restaurant, and on many occasions this [person] expressed anguish over the fact that in order to develop his group business he had to corporate with corrupt senior officials that belonged to different rival group, he feared for his life, he also expressed empathy for the opposition party, believing Cambodia would be better and less corrupt if opposition party could run the country. The applicant also suspected her friend may have quietly supported opposition party with his wealth, suggesting this could have been the direct reason behind his murder. The applicant claimed that the murder traumatised her for a long time, she tried not to think about the horror, suppressing the memory , she said she could not bring about the story at the interview, for fear she would have been chocked with emotions, the unleash of supressed emotion could ruin the interview scene. Another publicly reported murder that touched her was Kem Ley, a critic of Hun Sen regime. Cambodian community in Melbourne mobilised all kinds of support, successfully called on Australian government to rescue his widow and five children gone into hiding in Thailand, they were eventually granted offshore humanitarian visa, and settled in Melbourne. More poignant for the applicant was that Kem Ley visited Melbourne after the applicant and her family arrived in [City 1], and the applicant and her husband attended a speech dinner organised by the pro-democracy members of local [Cambodian community], the applicant and her husband paid for their seats at the dinner table, they believed it was part of fund raising for Kem Ley and his democratic activities, weeks later after Kem Ley returned to Phnom Penh, he was shot to death under broad day light at a petrol station when he stopped to buy coffee . The applicant and her husband attended the speech dinner t out of their conscience as Cambodians wishing a better future for their home country, not out of a motive to strengthen their claims for protection; they were totally unaware of the relations between the two factors.
·We submit their participation was innocent in good faith, and should pass the test under s.5J(6) of the Act that provides “In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.” This qualification is identical to that in s.91R(3), which applies to pre 16 December 2014 visa applications, the applicant lodged her application on 17 June 2014. Section 91R(3)’) is also applicable to s.5J(6). The applicant reiterated with strong emphasis that their participation in the event was not for a purpose to strengthen their claims.
·Real chance of persecution and subjective fear.
In decision record, the delegate made a logic error that overgeneralised the evidence in extreme by wrongly summarising the applicant’s evidence that “it is only when she run a big restaurant she would be imputed with an anti-government political opinion and if she stays out of the restaurant or even only runs a smaller one, she would be safe in Cambodia. The applicant never intended for the delegate to interpret her mind of state back then in such wrong direction. We submit that the delegate gave no regard to totality of the applicant’s circumstances, everything in her past experience was relative and relevant, as we discussed above that the subsequent closure of the second restaurant under thugs ‘attack proved one thing, that was the smaller restaurant would be safe forever was a wishful thinking, her self-rescue tactics based on her mind of state back then backfired badly which led her to flee for protection in Australia. The point here is that, for the applicant, no matter what size of restaurant she runs, once she is perceived as a holder of a political opinion against Hun Sen regime, soon or later, the political thugs will catch up with her and destroy her business and ruin her life. The delegate also incorrectly summerised the applicant’s job in [City 1] as that “ as on the first applicant’s own evidence, she and the second named applicant have been supplying [Items 1] to support their family in Australia, not in the restaurant business”, the delegate got the facts so deadly wrong, at the time of interview, the applicant and her daughter the third applicant were working for a [shop] in [a location], the owner was of Italian background and the wife of the owner is of Cambodian background, that’s how they got the job to work as employees , not as retailer or [supplier]. Based on this wrong finding, the delegate went on to infer in the first sentence before the above quoted sentence that “ I find that it is not unreasonable to expect the first named applicant and her family not to engage in a restaurant business or to run a small restaurant such that they would not be imputed with an anti-government political opinion…”. We submit that if the business of the applicant were of pro-active or even aggressive political nature, such naming the restaurant as Sam Rainsy or painting anti- Hun Sen slogans inside restaurant, then the delegate could rely on s.5J(6) or 91R (3) of the Act to require the applicant to modify her behaviour once she returns to Cambodia, but her business, being restaurant or [supplier of Items 1] as the delegate suggested, was and would only be of normal commercial nature, there is nothing else the applicant could modify, on the other hand, the fact that she is compelled to change her normal business behaviour or business type in order to avoid persecution supports the proposition that the applicant does have well-founded fear of persecution. We submit that the applicant meets the subjective fear requirement.
·It is inconceivable that cumulative effect of her past and present experiences would not give rise to more well-founded fear of persecution. In MILGEA v CheGuang Xiang, the Court stated: To establish whether there was a real, as opposed to a fanciful, chance that Che would be subject to harassment, detention, interrogation, discrimination or be marked for disadvantage in future employment opportunities by reason of expression of political dissent, it was necessary to look at the totality of Che’s circumstances.
·From the time the delegate made a decision not to grant protection visa to present moment, the human rights situation in Cambodia deteriorated sharply, it was a steep fall under Hon Sen regime. Emboldened by China aid, Hun Sen further crafted his dictatorial skills, he got China, a digital Leninism state, as his better mentor in terms of suppression. Hon Sen ditched the West that has spent billions of dollars puling Cambodia out of killing field and restoring democracy without success. Hon Sen lets Cambodia completely pivot to China. Over past few years after the applicant arrived in, Hon Sen descended into outright dictatorship. He banned opposition party, making Sam Rainsy, the opposition leader run into exile again in France, making deputy opposition leader Mo Sochua run into hiding in Thailand and later resurfaced on ABC interview (see on ABC file and Youtube), Hon Sen put another deputy opposition leader Ken Sokha into jail, the applicant felt strongly at personal level about the jail of Ken Sokha, because she and her husband had personally served him six or seven times when he and his family and frequented the first restaurant in good old times. The applicant states that by personally serving them well in her restaurant she and her husband subtly showed of leaning towards opposition, and that was the best they could do, they always appeared to be non-political openly in public.
·In June 2018, Human Rights Watch issued a comprehensive damming report titled “Cambodia’s Dirty Dozen”- A long history of rights abuses by Hon Sen’s generals. [this report was enclosed with the submission] Ranked No.3 is Gen. Sao Sokha, Commander of National Gendarmerie; RCAF Deputy Supreme Commander. The applicant mentioned his name in the original claims as the suspected mastermind behind attacks on her first restaurant. The original claim was: “… callers would not identify themselves, they called themselves security guards, only on one occasion I overheard on phone one of them in the back, not the caller, mention the name Sao Sokha, my husband told me later that Lieutenant General Sao Sokha was the commander of the military police, they are notoriously famous for cracking down hard on strikes and protests organized by the opposition party.”. Gem.Sao Sokha is a leading figure among the dirty dozen henchmen that served as pillars to hold up the Hon Sen regime. The applicant has every reason to fear him and his thugs if she were forced to return to Cambodia.
·In 2018, Australian media reported that prior to general election in Cambodia and Hon Sen’s arrival in Sydney for ASEAN summit, Hon Sen had threatened to beat protesters from Cambodian community in Australia. Many local Cambodian Australians received phone calls with threatening messages, the applicant was not spared either, she did not know how they got her mobile number, she said it was an open secret that Hon Sen got some supporters within local Cambodian community, they acted like agents promoting Hon Sen’s regime. The applicant received phone calls warning her not to attend rally in Sydney protesting Hon Sen’s arrival. The applicant felt the danger was just around the corner approaching her closely, all of this increased the level of well-founded fear of persecution.
·We submit that the real chance of persecution is palpable for the applicant and her fear of persecution is well-founded. It was wrong for the delegate to suggest in conclusion that the applicant who has non-existent political profile would be unlikely to be targeted by Hon Sen regime should she return to Cambodia. Without active or less active supporters or quiet sympathisers among the majority, including the type of the applicant, any political movement would not be able to survive, let alone success, and it is always the support base that suffered most harm when crackdown landed upon them and rarely got reported in media. Of all the successful protection visa applicants we assisted over the past ten years, none of them had active political profile.”

Country information was submitted including:
·‘Cambodia’s Ruler Dared Australians to Burn His Effigy, So They Did’, New York Times, March 19, 2018. This discusses Australian parliamentarian Hong Lim MP ‘finding himself at the center of an unfolding battle over free speech and the reach of Cambodia’s authoritarian government into diaspora communities in Australia’.
PM Vows to Bash Aussies on Their Own Soil, VOA News, February 23, 2018. This article quotes an academic as follows: “Carl Thayer, an emeritus professor at the University of New South Wales and a regional expert, said Hun Sen’s threat could be seen as “ an incitement” as information was surfacing that Phnom Penh was orchestrating a counter protest for the summit.”
“Well, look, you know I think that obviously the federal police will have to listen and evaluate threats to Australian citizens and I think that the threat there is not that Hun Sen would do it but some of his supporters in this country,” he said.
“I’m told there is an attempt to organize some sort of pro Hun Sen activity to counter what’s going on,” he added, stressing details were very vague.
Official Threatens Beatings, ‘Accidents’ For Migrant Workers Opposing Hun Sen’, Radio Free Asia, 15 October 2018, which says in part:
“Cambodian workers taking part in protests against Prime Minister Hun Sen in other countries should be identified and beaten by gangsters or made to suffer “traffic accidents,” a ruling party official says in a recording taken from a phone call, and now circulating widely on Facebook.

Speaking in a minute-long sound bite, Labor Ministry spokesperson Heng Sour urges an unidentified colleague to set up a network to target and attack Cambodian migrant workers opposed to Hun Sen, who recently won re-election in a national vote widely condemned as unfree and unfair because he had banned the only credible opposition party before the vote.

“Let’s find some gangsters and thugs and then use them to beat up the identified targets. Just do whatever you can to break them down,” Heng Sour says, adding that if the attackers are later arrested, they will probably be sent back to Cambodia after serving short terms in jail.”
PM facing backlash over threat to Australian protesters’ ABC News 1 March 2018,
Part of the article stated:
“Hun Sen has overseen decades of corruption and impunity, and has threatened to unleash "civil war" on his people if they vote him out at elections in July.
"I think that Hun Sen lacks a bit of awareness about how his actions and comments come across to international audiences," said Sebastian Strangio, author of the book Hun Sen's Cambodia told the ABC.
"It's only natural for Australia to raise a voice of protest against Hun Sen's comments — even if they were intended purely rhetorically."
In Cambodia, few doubt the former Khmer Rouge soldier's ability to back his words with violence.
In 2015, two opposition parliamentarians were savagely beaten in front of the National Assembly by members of Hun Sen's para-military bodyguard unit
Dozens were killed — some executed while handcuffed — during a coup in 1997, when Hun Sen's faction grabbed power from its coalition partner, cementing the Prime Minister's reign.
On Wednesday, Hun Sen appeared to backtrack slightly from threats of violence in Sydney.
"If the dog bites our leg, then it is difficult for us to bite the dog's leg," Hun Sen told an audience of garment workers, according to the Phnom Penh Post.
"If the dog barks at us, then it is difficult to bark at the dog," said Hun Sen.
"It is wrong if you want to burn Hun Sen's image to make Hun Sen die. Hun Sen was [born] in the Year of the Naga [Dragon], so burn all Nagas at the pagodas, then Hun Sen will die," the Prime Minister said.
A spokesman for the Cambodian Government said Hun Sen's threats had been misunderstood.
"Chris Bowen naturally got to protect his voter and Peace full [sic] demonstration but Australy [sic] government as hosting the special guess [sic] shall do some thing to manage and protect the VIP as International laws," wrote Phay Siphan.
The spokesman told the ABC that Hun Sen's attendance at the summit in Sydney is not guaranteed.
In a text message, Phay Siphan responded to queries about the Prime Minister's plans with: "cannot predict in this situation".”
applicants’ evidence in the hearing
A1 and A3 gave consistent evidence in the hearing. Their remarks and answers to questions were generally consistent with their written claims and submissions to the department and the Tribunal. They could give rational descriptions of the events claimed and reasons for their actions.
The first hearing had issues with interpreting. The applicant brought these matters to the attention of the Tribunal. The hearing was well advanced when the problems were first raised.
The matter was adjourned until a later date and then was heard with a new interpreter. All involved expressed satisfaction with the interpreting at the resumed hearing. The Tribunal began afresh with its questioning and asked again virtually all of the questions it asked in the first hearing, with identical phrasing. The Tribunal relies solely of the answers of the applicants in the resumed hearing.
A1 said that she came to Australia for the first time in 2005 on a visitor visa and brought her children. The parents and older brother reside in Australia. She married in 1990 and the couple ran a restaurant in Cambodia. She felt it was the number-one restaurant in Phnom Penh - it had [number] floors and could serve hundreds of people at once. She described it as a high-end restaurant. She agreed that the restaurant had probably served thousands of people over the years. Up until March 2009 that had no problems running the business -it was profitable.
A1 said that she did not own the restaurant property, although she had another property. A1 described herself as not politically active. She said that opposition members would come in and out of the restaurant and she liked them and accommodated them. She had not attended demonstrations or made political donations, nor had she been a member of a political party. She has voted in every election and she and she and her husband are opposition supporters. She had voted for the Funcinpec and Sam Rainsy parties over the years.
A1 said that her restaurant was picked by opposition political figures because it had [meeting rooms].
I asked A1 if she had any concerns about having opposition party people meeting at her restaurant. She said that initially she did not know who they were. She said that she grew to like organising food for them and accommodating them. She said however that in 2009 she began to get worried. A group of youths had come to cause trouble and this occurred about once a week, or three times per month. There were threats and accusations that A1’s business was being used to generate money for opposition party support. This was false. It was also not a place of support for people in demonstrations.
Government political figures did not meet at her restaurant.
I discussed with the applicant goons or youths roughing up persons at the restaurant and refusing to pay in 2009. She said that guns were toted and customers were threatened. There was a refusal to pay for food. A1 was scared of the gun. She gave money to the thugs to keep the peace.
A1 was able to recall that it was early April (the second week) and she received a call threatening the parties. There was mention of their young son being monitored. There were six people involved.
A1 said she did not know any of their names of thugs because they were merely customers. She said some had police uniforms and some were civilian.
On the phone she was told that the leader or commander had sent in order in the name of Sao Sok Ha
The troublemakers did not make bookings - they would just drop in.
I put to A1 that she was in the restaurant trade for many years and that she must have a normal way of dealing with people who do not pay. A1 said that for ordinary people she could allow them to pay later and that this would not be a problem. However she said that when a situation is serious like this she needed to solve the problem. There was the brandishing of guns and drunkenness and demands for money.
A1 said that she was threatened face-to-face in early April. She said that the thugs knew clearly that she was opposition supporter and that this had been identified through surveillance. A1 provided a place for meetings and money.
On the telephone she was told to close the restaurant because her income was alleged to be supporting the opposition. The threat was that if she did not they would make her son a hostage.
I asked if A1 contemplated telling opposition figures that she did not want them in her restaurant anymore. She said she did not contemplate this because she liked and supported them and wanted to provide a place for them. She was happy to serve them. She said this was her way of telling them that she approved of them
She found that opposition people were very proper and would not be dangerous people like the government operatives that she encountered.
I challenged A1 that it seemed like a drastic move to close the whole restaurant down when the only thing that was being asked of her was to stop serving opposition people.
A1 replied that she had to close the restaurant down because the patronage was constantly changing and there were various different members of the opposition who would attend the restaurant. She would not know who they all were and the restaurant was large.
A1 said 70 to 80 per cent of the restaurant’s income came from people from the provinces who were visiting and only four or five per cent of the revenue came from opposition persons, to her knowledge.
A1 said she did not go to the police. She said that local authorities were under the direction of government figures (the government of Prime Minister Hun Sen).
The restaurant was somewhat profitable when she closed it, A1 said
A1 said that the gun was only pointed at her and her family and staff. She recalled that a customer once ran away but that threats were not directed towards customers.
A1 said she was concerned about the threat of her son being kidnapped.
A1 added that she had a personal reason. She said that since marriage her parents wanted the couple to work hard to have money to spend. Her parents-in-law wanted her to support the Hun Sen party and they tried to force her to be a member of that party. She refused. I asked whether she knew all the people who were using her meeting rooms. She said she did not know all of them but she knew some of them and named an individual.
The meeting rooms were used for other people as well including groups celebrating birthdays. The restaurant was not sold but simply given back to her parents-in-law - they then rented it out once again and receive some income. A1 was not sure of the current tenants. She did not know the current operators of the restaurant or restaurants nor did she know if they had same problems as she did.
A1 said she established a new restaurant in September 2009. This was a newly rented property and it was a low scale, ‘no VIP’-small business. Her parents-in-law were not involved in the new restaurant. She owned the new restaurant with her husband and rented the property. She had some money left over from the old restaurant and borrowed from friends as well to finance the new venture.
I asked the applicant what her relationship was like with her mother-in-law at that time. She said that she did not have a relationship and no contact. She said that she felt forced by her parents-in-law to do business and work to support younger siblings. She also said that she felt under force from her parents-in-law to support the Cambodian People’s Party, the ruling government party. She said she was blamed every day. She resented the fact that a fair amount of money that she was earning ended up being given to family members who did not work for it. She said the couple got very little. She tolerated this for many years, since her marriage. From 2009 to 2011 the new restaurant, either made a small amount of money, broke even, or made an eventual loss.
I asked A1 whether part of the reason for closing the initial restaurant was because she did not want to be in such poor financial relationship with her in-laws. She said this was not the reason for closing and that she still had enough to live on. She said that the main problem was the political influencing and intimidation. She said it was the last straw and her children were threatened.
The second restaurant was closed. She was accused of finding shelter for demonstrators and was told not to do so - also in August 2011. She said police walked in and caught customers with a gun and handcuffs. It was suggested that she gave information to a journalist to write a critical article of Hun Sen. She denied doing this. The journalist in question was killed and his body was found in 2012. It was only then that she realise that this individual was a journalist. A1 said that in August 2012 there was demonstration in front of the restaurant. Six staff were arrested. These were merely onlookers and did not participate. A1 said that she bailed them out. She said that police threatened her at the prison. She said that she was accused of being in opposition supporter of a political party. She was threatened with arrest and rape. She begged them to let her go and that she would do anything to be let go. A1 was emotional in giving her evidence at this point as was her husband. A1 said her husband told her to give more money to enable the employees to be freed. She had to pay [amount] each to free them.
After this incident there were more threats to close the restaurant. They would not give up and accused her of supporting the opposition political party. A1 said she could not think clearly and by this stage she had made a loss. She needed to close down the restaurant and she needed a rest. A1 then turned to a venture of exporting [products] to [a named country] and [Country 1].
I asked why this [enterprise] was closed down. She said the government knew that she had an activity along [the border] and came to cause trouble on [Business 1]. This was in December 2013. A gun was pointed at her and her husband. They also pointed out the car they owned. She replied that she was merely in an export business. This business was [number] kilometres away from Phnom Penh.
I queried how A1 would be known by the governing party, considering that she had moved [number] kilometres away. She said that she did not know her friend was relative of an opposition party figure. They thought that she had a joint venture with her friend. She did not know her friend was related to the opposition figure. She only became aware of this when trouble was caused. She said her children were still living in Phnom Penh when she had the difficulty. She stopped this business and decided to leave Cambodia for good.
Country information on Cambodia was discussed.
It was pointed out that there is low risk for people with no profile and that people protest every day so that this is a low risk. A1 said that new development depends on ‘ordinary people like us’. It all depends on what ordinary people do, she said. This makes the opposition stronger. She said ‘we worked for them’ and for the opposition party.
A1 said she was an ordinary person and support of the opposition came from ordinary people.
I asked about any problems that A1had encountered in Australia. She said in 2018 Hun Sen went to the APEC meeting in Sydney. She received a telephone threat from persons wanting to hurt her. She was asked if she went to a demonstration against Hun Sen. She said that the person on the telephone said that if they see her face they will come and hurt her at home. She said that her parents-in-law and siblings would not be safe. There was no caller ID on the telephone. There is a governing party element in Australia. They cause harm and hurt. This has been pointed out by an MP in Australia, Hong Lim, who has spoken out against Hun Sen.
I asked why operatives would ring her and how they would know her number. A1 said it was a small community of Cambodians in [Australia]. Hun Sen is not just a blowhard, she said.
I asked what government critic profile she had. She had never been in a demonstration I pointed out. A1 confirmed she does not make online comments. I pointed out that these events affecting her in Cambodia are six or seven years ago and queried why people would remember. A1 said that she thought that the government had a file on her. She said that her reputation was such that it could be ascertained through technology. She said that she had a first-class restaurant and was well-known.
She did not tell the police about the phone calls in Australia because she is more confident about living in Australia having been here for five years.
A1 said that she knew what democracy is and what human rights are. Here she can express an opinion and talk. Cambodia is tightly controlled by Hun Sen and there is no real democracy. Authority is managed by Hun Sen, who has absolute authority. Guns can be used against people at any time. Ordinary people are not safe. She would be in danger. She feels love for opposition parties and wants to change the regime. She wants democracy and freedom and she wants a country free of corruption.
Evidence was also received from A3. Although he had a less detailed knowledge of the claimed events, he corroborated his mother’s evidence that there was a threat by thugs in Cambodia and he gave details of the restaurant business of his parents. He confirmed that there was a telephone threat to harm in Australia. He also said he was upset about the murder of a friend in Cambodia.
Country Information of Foreign Affairs Departments
The Tribunal notes that there is no current Department of Foreign Affairs and Trade (DFAT) Country Information Report on Cambodia. However, the Tribunal has examined the Cambodia 2018 Human Rights Report of the US State Department[1], which is relevant to the matters at hand:
[1] SUMMARY
Cambodia is a constitutional monarchy with an elected parliamentary government. The ruling Cambodian People’s Party (CPP) won all 125 National Assembly seats in the July 29 national election, having banned the chief opposition party in November 2017. Prior to the victory, Prime Minister Hun Sen had already served for 33 years. International observers, including foreign governments and international nongovernmental organizations (NGOs), and domestic NGOs criticized the election as neither free nor fair and not representative of the will of the Cambodian people.
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.
Human rights issues included 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; arbitrary interference in the private lives of citizens, including pervasive electronic media surveillance; censorship and selectively enforced criminal libel laws; interference with the rights to peaceful assembly and freedom of association; restrictions on political participation; pervasive corruption, including in the judiciary; and use of forced or compulsory child labor.
The government did not provide evidence of having prosecuted any officials for abuses, including corruption. A pervasive culture of impunity continued.
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Arbitrary Arrest or Detention
The law prohibits arbitrary arrest and detention; however, the government did not respect these prohibitions, notably with the arbitrary detention of five Cambodian Human Rights and Development Association (ADHOC) staffers for 427 days on politically motivated charges. ADHOC is one of the country’s oldest and most prominent human rights NGOs. Authorities released the ADHOC staffers on bail in July 2017; in September 2018 hearings on their case reconvened.
The government’s pursuit of criminal defamation cases also led to a number of arrests. Provincial labor leader Sam Sokha, for example, was tried and found guilty in absentia in January of defaming Hun Sen after she was filmed throwing a shoe at his photograph. Although the UN High Commissioner for Refugees (UNHCR) gave her refugee status in Thailand, the Thai government repatriated her involuntarily at the Cambodian government’s request in February, and she was serving a two-year prison sentence.
In February the government adopted a new “lese-majeste” (royal insult) law, which had led to the arrest of at least three citizens.
Role of the Police and Security Apparatus
The General Commissariat of the National Police, under Ministry of Interior supervision, manages all civilian police units. Police forces are organized into those with authority to make arrests, those without such authority, and judicial police, whose authority only extends to enforcing court warrants. The government permitted military police to arrest civilians if the officers met the training and experience requirements to serve as civilian police, if civilians were on military property, or when authorized by local governments. The military police, however, sometimes engaged in civilian law enforcement activities under the authority and direction of provincial or local governments, often in support of civilian police unable to exercise effective crowd control.
There were credible reports that police officials committed abuses with impunity, and in most cases, the government took little or no action. Government officials and their family members were generally immune to prosecution.
From January to July, one local human rights organization tracked nine instances of impunity affecting 10 victims. The NGO claimed the number of instances might be far higher, but victims feared filing reports ahead of the politically sensitive election. The Ministry of Interior is responsible for evaluating security force killings, and the law requires police, prosecutors, and judges to investigate all complaints, including those of police abuse. Judges and prosecutors, however, rarely conducted independent investigations. If abuse cases came to trial, presiding judges usually passed down verdicts based only on written reports from police and witness testimony. In general police received little professional training on protecting or respecting human rights.
Arrest Procedures and Treatment of Detainees
The law requires police to obtain a warrant from an investigating judge prior to making an arrest, unless police apprehend a suspect while in the act of committing a crime. Authorities frequently cited this exception when arresting opposition political figures, even if the alleged offenses occurred years before. Critics accused the government of employing this practice to circumvent laws providing lawmakers with parliamentary immunity. The law allows police to take a person into custody and conduct an investigation for 48 hours, excluding weekends and government holidays, before police must file charges or release a suspect. In felony cases of exceptional circumstances prescribed by law, police may detain a suspect for an additional 24 hours with the approval of a prosecutor. Nevertheless, authorities routinely held persons for extended periods before charging them.
There was a bail system, but many prisoners, especially those without legal representation, had no opportunity to seek release on bail. Authorities routinely denied bail for cases considered politically motivated.
Under the law police may arrest and detain accused persons for a maximum of 24 hours before allowing them access to legal counsel, but authorities routinely held prisoners incommunicado for several days before granting them access to a lawyer or family members. According to government officials, such prolonged detention was frequently the result of the limited capacity of the court system. The government did not provide free access to lawyers for indigent detainees.
Arbitrary Arrest: As of July, one local human rights NGO reported at least six new cases of arbitrary arrest. The actual number of arbitrary arrests and detentions was likely higher, since many victims in rural areas did not file complaints due to the difficulty of traveling to human rights NGO offices or due to concern for their family’s security. Authorities took no legal or disciplinary action against persons responsible for the illegal detentions.
As of July authorities at the crowded Prey Speu social affairs center reported 585 persons still in detention following the Phnom Penh city government’s 2017 roundup of 1,727 homeless persons, beggars, persons with mental disabilities, and persons engaged in prostitution. Authorities initially placed 1,560 detainees, including 262 children, in Prey Speu without adequate medical treatment or food. The facility, operated by the Ministry of Social Affairs, Veterans, and Youth, was notorious for abuses that led to the death of two detainees in 2015. According to Prey Speu authorities, 585 detainees remained in the facility following reintegration into the community of 1,100 of the original detainees.
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Freedom of Expression, Including for the Press
Although the constitution provides for freedom of expression, including for the press, during the year the government spent much effort to weaken the independent press and enacted ever greater restrictions on free expression.
Freedom of Expression: The constitution grants freedom of expression except where it adversely affects public security. The constitution also declares that the king is “inviolable,” and a Ministry of Interior directive implementing the criminal defamation law reiterates these limits and prohibits publishers and editors from disseminating stories that insult or defame the king, government leaders, and public institutions.
Election laws require civil society organizations to remain “neutral” during political campaigns and prohibit them from “insulting” political parties in the media. Although campaign laws require news outlets to give equal coverage to each party participating in an election, there was no evidence of the law’s enforcement during the year, and news outlets gave significantly greater coverage to the CPP than to other parties.
The government used the penal code to prosecute citizens on disinformation and incitement charges, which carry a maximum sentence of three years’ imprisonment. Judges also can order fines, which may lead to jail time if not paid. Courts interpreted “incitement” broadly, and senior government officials threatened to prosecute opposition figures on incitement charges for acts including calling for a “change in government” by electoral means.

From this country information and from certain articles submitted to the Tribunal, it is concluded that Cambodia’s government is an authoritarian regime with severe limits and consequences for those dissenting and making critical political expression.
Authorities have on occasion acted with impunity against dissenting citizens.
There is nothing in this country information to suggest that the applicants would avoid being viewed as political dissenters or opponents of the government.
Analysis
I find that A1 was a restaurateur in the Phnom Penh. I find that this was a large business which she ran with A2. From consistent information to the department and to the Tribunal I conclude that the restaurant was frequented by members and supporters of the Sam Rainsy party and other opposition individuals. These people attended the restaurant with at least the tacit encouragement of A1.
I find that the restaurant was closed down hastily in May 2009 due to pressure and threats from government supporting individuals. I also find that A1’s subsequent restaurant venture began after A1 was accused of sheltering demonstrators and being an opposition supporter of a political party. I find from consistent information and evidence that A1 was threatened in this way and subsequently decided to become involved in an agricultural enterprise for kilometres from the Phnom Penh. However the business’s association with opposition supporters and agitators lead to further threats against A1. I also find that simply refusing to serve opposition sympathisers was not a viable option, as there were practical issues in identify exactly who each customer is an a high volume enterprise. I also find that A1’s perception issues with the government were carried with her from enterprise to enterprise. In what is effectively a one party state with an active security apparatus, there is some prospect of authorities knowing of A1 in different locations throughout Cambodia.
The Tribunal considers the fact that that A1 has not been a member of the political party nor has she been overly supportive of a political party. After examination of the documents forwarded and having had the opportunity to question A1 in the hearing, the Tribunal concludes that A1 has an active dislike of the Hun Sen regime in Cambodia.
The Tribunal turned its attention to the closure of A1’s first restaurant in the context of an ongoing rift between her parents-in-law, and specifically her mother-in-law and A1 and other members of A1’s family. The Tribunal accepts that there has been a rift. The Tribunal has noted from evidence that there has been little communication as the issues escalated, and the source of tension is control of profits and ownership from the original restaurant. The Tribunal also accepts that A1’s mother-in-law is a government supporter and has been vocal in her efforts to ensure that A1 and her family side with the government. These two factors combined have exacerbated the situation for A1 in Cambodia. However the two factors do not necessarily detract from the claims of A1 to have a well-founded fear of persecution for political reasons.
I also note the delegate’s concerns about why A1 would operate a new restaurant so close to the site of the old restaurant. While this is an initial impression one might receive, I accept that Phnom Pen is a very large, built up city, and ‘as the crow flies’ distances mean a lot less. I also find that the concerns about ‘[Restaurant 1]’ being used as a name should be discounted in that [Restaurant 1] is a commonly used name in business and does not especially draw attention to a replacement enterprise as being linked to A1’s first restaurant on the site.
The Tribunal finds that A1 has a well-founded fear of being persecuted for reasons of political opinion and would be unable to avail herself of the protection of Cambodia and is unwilling and unable to return to Cambodia.
The political opinion is not an overtly stated one, but generally would be imputed to A1 and her family members including the other applicants in this matter. The Tribunal has had the opportunity to question A1 and A3 in detail as to their history in Cambodia and their experiences in that country.
Whilst the Tribunal would exercise caution in finding imputed political opinions leading to well -founded fear of persecution for persons with relatively lower profile as A1, there are some differences in this particular case.
Firstly A1 ran a large restaurant in the Phnom Penh for approximately two decades and was well known locally in that sense. Secondly from country information it can be seen the Cambodia is an authoritarian state with effectively only one political party, which is the governing party of Hun Sen. Very tight control is maintained of the operations of the government and detractors and critics receive a great deal of focus from authorities, along with punishment, and indeed officials can act with impunity on occasions.
In that context even persons were not particularly prominent in political circles might well be imputed to be government critics or opposition supporters. Whilst Hun Sen’s threat in Australia for example to bash Australians on their own soil for criticising him might be rhetorical, it is possibly revelatory of a very sensitive leader and regime who on occasions pay a lot of attention to critics. I am mindful of the US State Department’s note that there are human rights issues in Cambodia including unlawful and arbitrary killings, forced disappearance carried out by the government, torture by the government, arbitrary arrest by the government and arbitrary interference in the lives of citizens. It is also noteworthy that there is an academic opinion that some in the Cambodian community in Australia are supportive of the regime and attempt to counter anti-regime protests in Australia, and there have been threats to subject anti-government individuals overseas to harm and misadventure.
I find that A1’s issues with the Cambodian government have been ongoing over a period in Cambodia. I find that A1’s repeated issues with her enterprises have not been a coincidence. I find that authorities and government figures or associates are aware of who she is and have made an effort to suppress her business and threaten her. There is a systematic quality to this action. I find from the consistency of A1’s evidence that she was indeed telephoned in Australia and warned about the upcoming visit for and send. I am unable to find however that the caller knew who he or she was calling and that the call was anything more than a random call to various persons with Cambodian names made at that time with the purpose of minimising anti-government activity in Australia.
A1’s claims overall were consistent as was the corroborative evidence of A3.
The Tribunal is unable to find that with the passage of time issues that A1 had with government authorities and/or their supporters would have dissipated to the extent that she would no longer have a well-founded fear of persecution. As noted Cambodia is an authoritarian state and takes a great deal of interest in anti-government critics or purported critics and this interest would be ongoing.
The Tribunal has considered whether the applicants have an ability to avail themselves a state protection. The availability of protection in an applicant’s country of reference is relevant to the existence of an objective basis upon which the well-founded fear of persecution that is necessary for protection rests. As the Tribunal accepts A1’s claims as earlier described, and the perpetrators of the claimed behaviour are government officials or government-linked individuals, the Tribunal does not accept that state protection is achievable in this case. A1’s moving around Cambodia did not give her protection from issues either and I am thus unable to conclude that relocation would assist the applicants.
I find that A2, A3 and A4 do not make separate claims and are making claims on the basis of membership of the same family unit as A1. I accept that they are all family members of A1 as the husband and children of A1.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i)) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Justin Meyer
Member

[2019] AATA 6832

29 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies