1721602 (Refugee)

[2023] AATA 4857

1721602 (Refugee) [2023] AATA 4857 (18 December 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Shabnum Cassim

CASE NUMBER:  1721602

COUNTRY OF REFERENCE:                   Cambodia

MEMBER:Peter Vlahos

DATE OF DECISION:  18 December 2023

DATE CORRIGENDUM

SIGNED:17 January 2024

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.At paragraph 124 of the Decision Record, the word ‘Fiji’ should be deleted, and the word ‘Cambodia’ should be inserted.

Peter Vlahos
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Shabnum Cassim

CASE NUMBER:  1721602

COUNTRY OF REFERENCE:                   Cambodia

MEMBER:Peter Vlahos

DATE:18 December 2023

PLACE OF DECISION:  Melbourne

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

This Statement was made on 18^th December 2023 at 9.40AM.

CATCHWORDS
REFUGEE – protection visa – Cambodia – particular social group – single/separated women in Cambodia – single woman at risk of sex trafficking – debt of parents to money lenders – applicant used to repay debt – separation from spouse – single mother – children with health issues – status of women in Cambodia – vulnerable persons – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5. 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Iyer v MIMA [2000] FCA 52
Minister for Immigration and Ethnic Affairs v Wu Shan Lian & Others (1996) 185 CLR 259

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Cambodia, applied for the visa on 9 December 2016. The delegate refused to grant the visa on the basis that the application did not meet the requirements of section 36(2) of the Act.

3. The applicant appeared before the Tribunal on 23 November 2023 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. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she 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 because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of Nationality, Origin and Citizenship

12. The applicant has provided the following evidence of her identity, nationality and citizenship:

    §Cambodian ID card with English translation

    §Cambodian extract of birth with English translation

13. The applicant arrived in Australia [in] June 2012 on a Cambodian passport no. [deleted] in the identity of ‘[Alias 1]’, a Cambodian national born on [date]. On 8 July 2016, she lodged a Protection visa application in the name of [Alias 1]. This application was found by the Department to be invalid. On 19 December 2016, she lodged a second application for a Protection visa. In her application, she claimed that her true identity is [applicant name] and that she arrived in Australia on a ‘fake’ passport.

14. On 10 January 2017, the applicant lodged a request for amendment or annotation to personal records, requesting a name change on her records with the Department from [Alias 2] to [Sister 1] [variation of applicant name]. Subsequently, the applicant attended an identity interview with a Departmental officer on 3 February 2017.

15. On 13 April 2017, the Departmental officer/delegate was satisfied that the applicant’s true identity is [applicant name]. A copy of the decision is on the Department’s file[1] which the Tribunal has cited and therefore, there is no reason for the Tribunal in this instance, to doubt this identity finding.

    [1] Department of Home Affairs File no. [deleted]

16. The Tribunal concedes that the applicant has provided sufficient evidence of her identity which is consistent with their narrative and biometrics on the Department’s record.

17. Therefore, for the reasons provided above, and for the purposes of this assessment, the Tribunal finds the applicant’s identity is as is claimed and that for the purposes of assessing and determining her claims for the purposes of section 36(2)(a) and 36(2)(aa) is Cambodia.

    Protection available in another country assessed

18. The Tribunal finds, on the evidence before it, that the applicant does not have a right to enter or to reside in a country other than Cambodia. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant.

    Department File accessed by the Tribunal

19. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with her application to review.

    Background – the Applicant’s migration and visa history.

Date	Event details
[Date]/06/2012	Arrived in Australia on a TR676 visa in the identity of [Alias 1]
[Date]/07/2012	Unlawful non-citizen
08/07/2016	Applied for XA866 visa
07/10/2016	XA866 application invalid – s46(2A) requirement not complied with
19/12/2016	Applied for XA866 visa

EVIDENCE BEFORE THE TRIBUNAL

Background – the Applicant’s personal details

1. The Applicant was born in Phenom Penh, Cambodia, [date of birth]. A Cambodian citizen and a practicing Buddhist, she is proficient in Khmer and possesses limited proficiency in the English language. In 2014, she entered a relationship with a [Mr A] and as a result of that ‘relationship’ three children were born. In 2017, when the applicant was [number] months into the pregnancy of her youngest child, her partner ([Mr A]) started a relationship with another woman, which led to end of the relationship. The applicant’s partner later married another woman and now has children with that woman. The applicant’s partner, the applicant told the Tribunal, ‘only saw our children a few times’ after the separation and then, ‘stopped all contact’ by the time the applicant’s twin had turned [age] years old. The former partner is recorded on the children’s birth certificates, but only commenced paying child support for the applicant’s children in March 2022. Currently, the applicant is a single mother caring for her three children, two of whom suffer with ‘severe’ autism and living with her sister, and her sister’s young family.[2]

   The Applicant’s claims for Protection

   [2] see, AAT File _ Submissions & Evidence _ Applicant’s Statutory Declaration dated 16 November 2023_at p.2, 3.

2. The applicant’s claims for protection, included those provided at her interview with the Department’s delegate, and supporting evidence are as follows in summary:[3]

   [3] and are contained in Department of Home Affairs File no. [deleted]

   (a)In her Protection visa application lodged on 8 July 2016, the applicant claimed that:

   • She left Cambodia for her safety and wellbeing. She was the subject of a marriage to a high

   ranking [official] in Cambodia. If she refused, he would have killed her. She was
             threatened and harassed by her suitor.

   • While in Australia, she had twin daughters. The babies were born premature. She is

   separated from the father of her children who does not want anything to do with them.

   • She fears her life would be worth nothing, especially now that she has two babies. She would

   rather die in Australia than to return to Cambodia to face the people who want to harm her.
             Women do not have rights or protection in Cambodia. The authorities are too corrupt.

   (b)In her Protection visa application lodged on 19 December 2016, the applicant claimed that:

   • She left Cambodia because she feared for her life and safety. She was threatened by the

   perpetrator that if she resisted, they would harm her. If she returns, she may be killed or
             seriously harmed. The authorities will not protect her because most of them are corrupted.
             They do not take protection of women seriously.

   (c)At her Identity interview on 3 February 2017, the applicant stated that:

   • She is not fully aware of the circumstances pertaining to the arrangement made for her travel

   to Australia. Her family paid USD15,000. She was advised that she must use the name in the     documents she was given. Her family’s living condition in Cambodia was hard. Her parents    were cheated on their business and they did not have enough money. Her mother said it was           better she came to Australia to live. They decided to borrow some money. She initially came to Australia looking for a school. She had repaid a portion of the loan.

   • Her father worked as [an occupation]. Someone did not like him, and he was concerned about her.

   (d)At her Protection visa Interview on 23 June 2017, the applicant stated that:

   • Her twin daughters were born [at] 24 weeks gestation. They were in hospital for

   five months. Her relationship with their father broke down before their birth. Her daughters
             have the same visa status as their father.

   • She came to Australia on a false identity. Her mother’s business was heavily in debt. The

   person who organised her visa told her it would be easier to use a false identity to come to
             Australia. She does not have a complete understanding of the issue. Her mother paid more
             than USDIO.OOO for her passport and visa.

   • She worked in a farm after arriving in Australia and has sent some money home. She is no

   longer working because she has two daughters to care for. When she became pregnant,
             someone recommended that she could apply for a Protection visa. She did not apply earlier
             because she had no knowledge of this visa.

   • Her daughters were born premature and are in poor health. They are on vitamins to help with

   their growth and development. One of her daughters has a [health condition]. The doctors are monitoring her condition.

   • Her mother owed more than USD100,000. She does not know the exact amount owed.

   Because they were not able to repay the debt, the lender confiscated their house. They
             moved to a one bedroom rented accommodation after their house was taken away.

   • Her parents were not capable of repaying the debt, so the responsibility fell on her and her

   [sister], [Sister 1]. In around 2008 or 2009, she and [Sister 1] were asked to work for the lender. They signed a contract but were not told about the nature of the work. They were taken to a two-storey house and told that they had to work in the sex industry. They refused and were treated badly. A few days later, they escaped through the toilet window upstairs.

   They had no money and did not know where they were, so they had to walk very fast to
             escape. They walked for two or three hours. Then, they found a trishaw driver who agreed to
             take them home. He dropped them off at a bridge near their house and they continued to walk

   home. After that, she and [Sister 1] had to live in another province while her family continued to live in the one bedroom rented accommodation.

   • She is not affiliated with any political party, but her father was. It is a long story that she cannot fully recollect. Because it is not her own matter, she cannot recall what she told the

   Department previously when she attended her Identity Interview. She cannot remember the
             detail because she has a bad memory.

   • She does not know what to do. Her parents were not able to support her. If she returns to Cambodia, she will have no job and will not be able to look after herself or her children.

3. On 2 July 2017, an email was received by the applicant’s legal representative requesting a copy of the interview recording and a period of 28 days from the date of receipt of the recording to provide further information and/or submission.

4. A follow up email was sent by the legal representative on 6 July 2017 indicating that it is the applicant’s intention to include her daughters application.

5. A copy of the interview recording was sent to the applicant’s legal representative on 10 July 2017 via registered post. According to the Department’s File records no further information has been received from the applicant or her legal representative on settling the applicant’s children’s status. Therefore, the delegate proceeded to make  Accordingly, the delegate proceeded to make a decision on the information currently before him  concerning only the applicant. The Tribunal will address this matter in the decision that follows.

   Documents and evidence provided by the applicant in support of her application for Protection

6. In support of her application, the applicant submitted the following document’s and evidence to the Tribunal:

   a)Statutory Declaration of [applicant] dated 16 November 2023

   b)Confirmation of subclass 801 visa for [Child 1], [Child 2], [name deleted] dated 3 June 2019

   c)Child Support Assessment issued on 31 January 2022

   d)[Child 1]’s medical supporting documents, including:

   NDIS Plan Approval

   Speech Pathology Assessment Report

   [Named] Children’s Hospital – Medical Review

   Psychological Assessment Reports

   e)[Child 2] medical supporting documents, including:

   NDIS Plan Approval

   Speech Pathology Assessment Report

   [Named] Children’s Hospital – Medical Review

   Psychological Assessment Reports

   EVIDENCE PROVIDED BY THE APPLICANT AT THE HEARING

7. The applicant said in her evidence before the Tribunal “my family” “faced financial hardship” and that her parents “struggled to feed the family.”

8. The applicant said that in  2005, her mother “borrowed money from a loan shark.” The applicant said that her mother “borrowed more than was necessary” and with the passage of time, her parents (father included) “could not repay the money.”

9. The applicant said that after a period of time not making payments for loan and debt, the applicant’s parents “could not repay the money” which had been borrowed.

10. The applicant said that after the family home had been re-possessed by the loan shark, and after her father fell seriously ill which caused the borrowings to be used to pay his hospital and doctors’ bills, the applicant’s mother and father out of desperation, agreed to the proposition (put to them by the loan shark) that the applicant and her sister should out of familial obligation be offered to do labour to repay the family debts.

11. The applicant recalled that “sometime in 2009-2010” when she was ‘[age]-years-old’, the loan shark and his associates (“other men” as described by the applicant) came to applicant’s parents’ house and “threatened” the applicant’s mother. The loan shark to her mother, that “since she could not repay the money (borrowed)” “they would take the children to work to pay-off the debt.”

12. The applicant said that her “mother had no choice but to let them (the loan shark)” “to take us.” After that decision was made by the applicant’s parents, the applicant recalled that:[4]

    “My sister, [Sister 1], who was around [age]-years-old at the time, and I were put in a car with darkened windows and men drove us away from our home…”

    [4] Also, see AAT File_ Applicant’s Statutory Declaration_ dated 16.11.2023 at paragraph [24] at p.3

13. The applicant recalled that her sister and her “were taken to a house” that was described by her as “having many bedrooms and were locked inside one of the empty rooms.” The applicant remembered “feeling really scared because still no one was talking to us” or provided an “explanation as to what would happen to us.”

14. The applicant said that on the “first day” her the two “slept” in a bedroom that “was locked”. The next day, according to the applicant, “the same men” and “one woman” came into the bedroom to give us “clothes and make-up” but “no food.” The applicant remembered this, because she was “feeling so hungry at the time” and that “she was disappointed the we were not given any food to eat.” That same day, her sister and the applicant, were told by their captors, “to shower, get dressed into clothes” (which had been provided to them by their captors) and to “look beautiful” and then, they would “make guests happy.”

1. The applicant said that the two were “told” that “we would be having sex with guests” and this was expected of them so “to pay off the debt [our] family owed to them.” The applicant told the Tribunal that she was “scared” and when told by her captors “to take a shower” she refused to do so and was threatened by “one of the men” but later did as she was told. The applicant admitted to the Tribunal, when questioned further about this incident, that she “could not remember any more details because” she “was crying and scared.”

2. After the “men” (applicant’s captors) “left the room” the applicant and her sister, “looked around the room” to “see if there was a way that we could escape” from the house. The applicant recalled that ‘the house’ was “two storeys” and “not very high”; so, the applicant and her sister “thought we could jump through the window on to the ground below.” Having determined their escape plan, the applicant told the Tribunal, that the two sisters “waited till night-time and when the house was quiet, we broke open the window and squeezed through the wooden frame” and “jumped down” on to the street below.[5]

   [5] Also, see AAT File _ Applicant’s Statutory Declaration _ 16 November 2023_ at paragraphs, 25,26 and 27 at pp.3-4

3. According to the applicant after the two sisters escaped:[6]

   “We ran as much as we could through the pain until we came across a tuk-tuk shop. On of the tuk-tuk drivers noticed both of us as we were barefoot and crying. He came to see if he could help. We explained that we had escaped from people who were forcing us into sex work. He offered to drive us home. We knew that returning home was not an option because the loan sharks would likely be waiting for us there. We directed him to the nearest [station]. At the station, we contacted our mother, explaining what had happened, and how we escaped the brothel and the loan shark people. My mother was very upset and said she would try to find a way to send us some money.”

   [6] Ibid, see paragraph [28] at p.4

4. The applicant recalled that after the two sisters reached the train station, they “found a driver and pleaded with him to allow us to travel with him.” The applicant said that the two “did not know where to go” but the two “needed to get as far away from the brothel” and “the people who ran the place.” The driver, according to the applicant ‘s recollections “took pity on the two” and he took them “to another province.” Once safe, the two sisters, the applicant told the Tribunal “found work at a local [business]” and “the owners let us sleep in a small back room.” The applicant admitted that two sisters were “afraid” to “travel too far” from where the [business] was because they “were scared the loan shark would find [them]” and take them back to the brothel house.[7]

   Deciding to Leave Cambodia

   [7] Also see paragraph [29]-[30] at p.4

5. The applicant said that the two sisters “tried hard to support” themselves while in Cambodia, but “each day we lived in fear of being discovered by the loan shark.” The applicant recalled that “her mother” told the sisters “that the loan shark stopped at our house to look for us after we had run away from the brothel.” The applicant said that the loan shark told “her mother” “that while the debt was unpaid, they would continue to harass her for money” or “take her daughters to settle the debt.” At the time, according to the applicant, “her parents” “had no money to give them” so “they took the family home, and my parents were forced to move.” However, the applicant said that – the family home – “did not cover the debt owed to the loan shark” so the applicant’s parents “continued to be harassed for more money” and were continuously questioned about the applicant’s and her sister’s whereabouts.

6. In this period, according to the applicant, her mother talked to a few people and “found someone who could arrange our (sisters’) travel to Australia.” The applicant said that “we borrowed money from the [business], saved all the money we earned from working” and the applicant’s mother “found a little money to help to.” Then, according to the applicant’s recollection the following occurred:[8]

   …I submitted my application six months later. At the time we were told not to use our real           names , as it could make us easily traceable by the loan sharks before we had a chance to      escape. I was desperate to get out of Cambodia and I was inexperienced in such matters so    accepted without question that this is what I had to do to find safety…

   [8] Ibid, see Statutory declaration _ dated 16.11.2023 at paragraph [33] at p.4

7. The applicant declared further that:[9]

   …the person organised our passports and visa documents…I only needed to provide a photo     for the passport. After a few weeks, I received my holiday visa and made my way to Australia,     arriving in June 2012 when I was [age]-years of age…

   The applicant’s fears to return to Cambodia

   [9] Ibid, at p.5 see, paragraph [34]

8. The applicant said that “the last time the loan shark spoke to my mother was about two years…” and this was because “my mother has been hiding from them” as “she cannot afford to pay them, and my parents have nothing left to give them.”

9. The applicant said that if she was forced to return to Cambodia “who can provide food or shelter.” The applicant said that “I would also be fearful to go to my parents because this could bring attention to them and put us all at risk.” The applicant explained that “even if I can remain hidden from the loan sharks, I will not be able to find stable work because I am also the only carer of my three children, and the twins cannot manage without supervision.”[10]

   [10] Ibid, see at p. 5 paragraphs [35]-[39]

10. The applicant said that “Prostitution is the only way that I could support my children and pay off my family’s debt to survive….this leaves me with no choice but to take my children to live with me in a brothel…where they [the children] would be at risk of sexual assault and harm from the owners of the brothel and the mem who visit it…”[11]

    [11] Ibid see, paragraph [38]

11. The applicant said that “in Cambodia”, “there is no government support for children with disabilities” and the applicant expressed the concern that she did “not have the money to provide the twins with the level of care” that can be provided and accessed here, in Australia.

12. Finally, the applicant told the Tribunal, that Cambodia offers ‘no effective protection’ for women in the situation she and her sister found themselves in. The police, according to the applicant are “unable” or reluctant to help or assist person in their situation.

    COUNTRY INFORMATION_ CAMBODIA_ Sex Trafficking _ Status of Women _ Employment opportunities and the availability of State Protection

    Sex Trafficking in Cambodia

13. The increasing number of human trafficking for the sex industry in Cambodia is associated with poverty, lack of education and social conditions. It is reported that:[12]

    the patterns of economic development (including expansion of the tourist industry,          privatization, and corruption) and gender relations in Cambodia society have interacted to   create the conditions for a flourishing sex industry.

    [12] Betti Rosita Sari, The Human Trafficking of Cambodian Women and Children for Sex Industry: Internal and External Case Study, Journal for Area Studies, Vol 1. No.2 (2010), 221-236, at 221.

14. Recent studies indicate that Cambodia has become a destination for sex trafficking, with high levels of internal trafficking being experienced.[13] Women and children mostly experience sexual exploitation, with boys living in tourism destinations also being vulnerable.[14] Victims of trafficking endure unspeakable hardship, with physical violence, sexual abuse, harassment, threats, and coercion being common experiences for many trafficked person.[15]These victims are scarred for life, and will commonly suffer serious trauma, depression or self-harm.[16]

    [13] United Nations Office on Drugs and Crime (UNODC), Trafficking in persons from Cambodia, Lao PDR and Myanmar to Thailand, August 2017, xi

    [14] Ibid at xi

    [15] Ibid at ix

    [16] Ibid at ix

15. Debt bondage is one of the most frequently used methods of binding women. Whilst women have been trafficked by brothel owners, it is reported that they still feel an obligation to pay back brothel owners and believe that eventually they will be able to make their own money. This expectation may prove false as initial debts can be inflated through charges for accommodation, food and interest on the original loan.[17] As a result, it becomes evident that escaping this type of sexual exploitation and debt bondage can be exceedingly challenging once an individual becomes entrapped in these situations.

    [17] Betti Rosita Sari, The Human Trafficking of Cambodian Women and Children for Sex Industry: Internal and External Case study, Journal of Area Studies, Vol 1 no. 2 (2010), 221-236, 225

16. In Cambodia, a survey with child domestic workers found that it is a common practice, almost exclusively practiced by parents who are exploiting their children’s labour. Children are used to repay a parent’s debt, and these practices are rarely openly questioned due to the strong duty of the child towards the parent.[18] Sex trafficking is evidently prevalent in Cambodia, with vulnerable populations, including women and children, continuing to be at risk.

    The status of Women in Cambodia – the social stigma

    [18] Betti Rosita Sari, The Human Trafficking of Cambodian Women and Children for Sex Industry: Internal and External Case study, Journal of Area Studies, Vol 1 no. 2 (2010), 221-236, 225

17. Women in Cambodia continue to face adversities based on gender-role stereotyping. For example, a study undertaken on abortion in Cambodia details that pre-marital sex is widely socially disapproved of in Cambodia. Further, pre-marital pregnancy is considered shameful and leads to loss of reputation for the woman and her family and will cause problems in securing a good marriage.[19] Pre-marital sex is “against tradition”, with some stating it “angers the ancestors”.[20] It is widely accepted that a “good” woman will remain a virgin until marriage, with high value being placed on virginity. There is a Khmer saying which translates to “men are gold, women are cloth” with the connotation that women can be worn, torn and stained, and men cannot.[21]

    [19] See Joanna Hemmings and Ben Rolfe, Abortion in Cambodia: Care seeking for abortion and family planning services, Reduction in Maternal Mortality Project, July 2008, 19. 

    [20] Ibid

    [21] Amnesty International, Breaking the Silence: Sexual Violence in Cambodia, March 2010, 46. 

18. Women’s status in Cambodian society is also heavily influenced by the traditional code of conduct known as “chbab srey” or “women’s law”. This code of conduct is said to ‘legitimize discrimination against women and impedes women’s full enjoyment of their human rights’.[22] Up until 2007, chbab srey was taught in schools and embedded in school curriculum.[23] Whilst chbab srey is no longer part of Cambodian school curriculum, it is considered an important piece of Khmer culture.[24] A report by the Cambodian NGO CEDAW Committee and the Cambodian Committee of Women has commented on chbab srey stating: [25]

    Despite the constitutional infrastructure now in place, the difference between the de jure and      de facto situations is a fundamental obstacle. This obstacle arises due to the socio-political context of Cambodia. The recognition of rights and freedoms contained in the constitution and        in other legal and relevant entities is not benefitting women as intended. This is due to the      observance of moral codes and social practices (Chbab Srey) that regulate the female     population. This situation creates high rates of illiteracy among women and restrains their movements and opportunities.

    [22] Ibid

    [23] Emily Anderson and Kelly Grace, From Schoolgirls to “Virtuous: Khmer women: Interrogating Chbab Srey and Gender in Cambodian Education Policy”, Studies in Social Justice, Vol 12, Issue 2 (2018) 215 – 234, 217. 

    [24] Cambodian NGO Committee on CEDAW and Cambodian Committee for Women, Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women in Cambodia, 2010, 3. 

    [25] Emily Anderson and Kelly Grace, From Schoolgirls to Virtuous: Khmer women: Interrogating Chbab Srey and Gender in Cambodian Education Policy”, Studies in Social Justice, Vol 12, Issue 2 (2018) 215 – 234, 217. 

19. Additionally, whilst gender-roles in Cambodian society have varied over time, women’s subservience to men is described as remaining by and large intact.[26] Women are unrepresented within executive branches of government, parliament, and civil service, in courts and the police force.[27] A report conducted in 2008 states that many young women have insecure, low paid employment in garment factories, bars or karaoke clubs or are involved in small scale trading.[28]

    [26] Emily Anderson and Kelly Grace, From Schoolgirls to Virtuous: Khmer women: Interrogating Chbab Srey and Gender in  Cambodian Education Policy”, Studies in Social Justice, Vol 12, Issue 2 (2018) 215 – 234, 217. 

    [27] Amnesty International, Breaking the Silence: Sexual Violence in Cambodia, March 2010, 45. 

    [28] see,  Joanna Hemmings and Ben Rolfe, Abortion in Cambodia: Care seeking for abortion and family planning services, Reduction in Maternal Mortality Project, July 2008, 18. 

20. Additional, whilst gender-roles in Cambodian society have varied over time, women’s subservience to men is described as remaining by and large intact.[29] Women are unrepresented within executive branches of government, parliament, and civil service, in courts and the police force.[30] A report conducted in 2008 states that many young women have insecure, low paid employment in garment factories, bars or karaoke clubs or are involved in small scale trading.[31]

    Employment opportunities – Single mothers

    [29] Emily Anderson and Kelly Grace, From Schoolgirls to Virtuous: Khmer women: Interrogating Chbab Srey and Gender in Cambodian Education Policy”, Studies in Social Justice, Vol 12, Issue 2 (2018) 215 – 234, 217. 

    [30] Amnesty International, Breaking the Silence: Sexual Violence in Cambodia, March 2010, 45. 

    [31] See Joanna Hemmings and Ben Rolfe, Abortion in Cambodia: Care seeking for abortion and family planning services, Reduction in Maternal Mortality Project, July 2008, 18. 

21. It is widely acknowledged that single mothers globally bear a disproportionate impact of income poverty. The constraints on their ability to work long hours, stemming from caregiving responsibilities, limit their earning potential. Additionally, job instability is more prevalent among single mothers, given factors such as a lack of job security, limited access to benefits, and diminished bargaining power in the job market. These challenges make it difficult for single mothers to maintain a stable income. The Applicant, as a single mother, will experience the same challenges coupled with social stigma and discrimination in her community. Collectively, these factors contribute to a persistent cycle of poverty and the incapacity to subsist.

22. A report from Human Rights Watch highlighted significant issues faced by women workers in Cambodia, particularly concerning pregnancy-related discrimination and sexual harassment in the workplace[32]. The study revealed that pregnant women on short-term contracts often faced non-renewal, and managers frequently neglected to provide reasonable accommodations, such as more frequent bathroom breaks or lighter duties without a corresponding adjustment in pay[33]. Parallels can be drawn between the workplace treatment of pregnant women, as outlined in the Human Rights Watch report, and the needs of the Applicant as a single mother of small children. In both instances, a woman's ability to participate in the workforce is contingent upon the employer's willingness to accommodate individual circumstances. The country information indicates that no such support currently exists.

    Further relevant information

    Australian Government_ Department of Home Affairs_ Cambodia_20200821113236_Informal Money Lenders/Loan Sharks_ Unpaid loans_ ill-treatment_ Police corruption_ Arrests[34]

    [32] Human Rights Watch, "Work Faster or Get Out," 18 March 2015, [Accessed 16 November 2023] 

    [33] Ibid

    [34] see, [e-mail] dated 3 September 2020

    Is informal money lending/loan sharking common in Cambodia?

23. Informal money lending is reported to have declined in Cambodia in recent years, while there has been an increase in the use of microfinance. A July 2013 article in The Phnom Penh Post indicates that at that time, industry experts said that an expanding banking sector and the spread of microfinance institutions (MFI) in rural areas in Cambodia had ‘failed to elbow informal, unlicensed money lending out of the market’.[35]

    [35] ‘Informal lending still thriving’, Renzenbrink, A, The Phnom Penh Post, 2 July 2013, 20200902094036

24. According to the article, the culture of accessing informal lending, which ‘was widespread before banks and microfinance institutions began sprouting up all over the country’, was ‘slowly changing’. Despite the increased presence of banks and microfinance institutions, however, a June 2013 study of rural and urban consumers conducted by Indochina Research showed that ‘five out of 10 Cambodian households that have at some stage borrowed money’ still accessed informal sources of credit. The article also notes that informal loans could ‘often surpass the monthly interest rates at microfinance institutions’.

25. A representative from the Independent Democracy of Informal Economy Association said that farmers’ inability to make repayments to microfinance institutions was a major reason that people borrowed from informal moneylenders, and many had ‘lost their cow, ox, or other property because of multiple loans from formal and informal lenders’.[36]

    [36] Ibid, and also see: ‘Cambodia's Informal Money Lending Is Competing With Banks And Microfinance Institutions’, Song, S, International Business Times, 2 July 2013, 20200902095730

26. A more recent article refers to an ongoing decline in the use of informal money lenders. In August 2020, The Economist reported that there had been a boom in microfinance in Cambodia, with ‘[a]lmost 2.2m of Cambodia’s 10m-odd adults’ having ‘a microcredit loan outstanding, according to the Cambodian Microfinance Association (CMA), an industry group’. The average debt was $3,320, which is ‘roughly twice the country’s annual GDP per person. Credit is growing by 40% a year’. The article indicates that the microfinance boom had ‘brought many benefits’, with an obvious one being ‘a decline in the use of loan sharks’.[37] 

    [37] ‘Service economy: Cambodians are bingeing on microfinance loans’, The Economist, 15 August 2020, 20200902120243

27. The article states that ‘[b]etween 2004 and 2017 the share of households borrowing from formal sources jumped from 8% to 30% while the proportion using informal moneylenders dropped from 32% to less than 6%, according to research published last year by the World Bank’. This shift had ‘saved people money. The interest rates charged by formal lenders are lower and have been falling for more than a decade, even though some microcredit outfits are purely commercial operations’.[38]

    [38] ibid

28. A February 2019 World Bank report, which includes the figures on household borrowing from formal and informal sources referred to in the above-mentioned article in The Economist, also notes that ‘[a]s access to formal credit has expanded, the population in the poorest quintile has become as likely to borrow from a formal source of credit as those who are better off’. It was ‘nonetheless worth noting that the proportion of households in the first quintile (poorest) who borrowed from an informal source increased by 5 percentage points in 2017, which may suggest that some low-end clients turned back to informal sources after the interest rate cap was introduced in April 2017’.[39]

    [39] ‘Service economy: Cambodians are bingeing on microfinance loans’, The Economist, 15 August 2020, 20200902120243

1. Cambodia capped interest on microfinance loans to a maximum of 18 per cent per year in 2017.[40]

   [40] ‘Microfinance and Household Welfare: Cambodia Policy Note’, World Bank Group, February 2019, p.8, 20200902173241

2. The February 2019 World Bank report indicates that ‘[u]nmarried household heads, those without complete primary education, and households belonging to an ethnic minority’ were ‘significantly more likely to borrow from informal sources’.[41]

   [41] ‘MFI loan interest capped’, Meta, K, Kimsay, H and Handley, E, The Phnom Penh Post, 14 March 2017, 20200902153705

3. The report also indicates that ‘[a]ccess to formal sources of credit has improved affordability through reduced interest rates and longer repayment periods’.[42] Another benefit of formal lending was ‘a decreased chance of abusive interest collection practices. Assessed on these dimensions, the credit conditions faced by borrowers arguably improved with the switch to formal sources of lending’.[43]

   [42] ‘Microfinance and Household Welfare: Cambodia Policy Note’, World Bank Group, February 2019, p.8, 20200902173241p.9

   [43] ‘Microfinance and Household Welfare: Cambodia Policy Note’, World Bank Group, February 2019, p.8, 20200902173241 p.9

4. The report also mentions that risks were 'increasing for MFIs and for the Cambodian economy in general, partly reflecting looser lending practices’, with increases in the size of loans and the share of loans used for consumption needs.[44] Banking is reported to remain ‘one of Cambodia’s most dynamic sectors with a steadily increasing number of actors’. By the end of 2016, these included ‘64 microfinance institutions, seven microfinance deposit-taking institutions’, and ‘170 registered microfinance operators’.[45]

   [44] ‘Microfinance and Household Welfare: Cambodia Policy Note’, World Bank Group, February 2019, p.8, 20200902173241 p.10

   [45] ‘Microfinance and Household Welfare: Cambodia Policy Note’, World Bank Group, February 2019, p.8, 20200902173241 p.6

5. A March 2018 paper on microfinance in Cambodia, which notes that poor people in Cambodia who were unable to access traditional bank finance would often turn to informal sources such as village moneylenders or loan sharks who charged exorbitant interest,[46] also notes that while microfinance was ‘supposed to reduce the indebtedness of the Cambodian people from loan sharks,… in reality many people are indebted because of microfinance’. The strongest factors leading to over-indebtedness included ‘multiple borrowing, limited financial literacy, and education level’.[47]

   [46] ‘BTI 2020 Country Report: Cambodia’, Bertelsmann Stiftung, 29 April 2020, p.21, 20200429143313

   [47] ‘Microfinance and Household Welfare: Cambodia Policy Note’, World Bank Group, February 2019, p.8, 20200902173241 p.1

6. The paper also comments that if over-indebtedness issues rise ‘to the level that borrowers lose assets such as agricultural land or houses, or become poorer, microfinance will not only fail to achieve its overarching objective, but will be functioning just like a loan shark or informal moneylender’.[48] There are recent reports regarding human rights abuses arising from debts owed to microfinance institutions. In July 2020, Human Rights Watch reported that ‘Cambodians hold the world’s highest average amount of microfinance institution loans, totalling US$3,804 per capita’. Human Rights Watch also reported that the National Bank of Cambodia (NBC) is the licencing and regulating authority of micro-loan providers, but ‘it has never issued strong consumer protection regulations to protect borrowers from unethical lending practices’.[49] The NBC is reported to have ‘minimal influence on lending rates charged by banks and microfinance institutions’. The March 2018 paper on microfinance in Cambodia indicates, however, that in 2017, the NBC capped interest on loans by registered microfinance institutions to a maximum of 18 per cent per year.[50] An August 2019 report by the Cambodian League for the Promotion and Defense of Human Rights (LICADHO) and local non-governmental organisation (NGO) Sahmakum Teang Tnaut (STT), notes that the annual interest rate cap of 18 per cent imposed in March 2017 had ‘proven ineffective at providing relief for consumers, as MFIs have begun requiring up-front fees from customers structured as percentages of the loans, ensuring that effective interest rates remain higher than the cap’.[51] The report also states that ‘[m]icrofinance debt in Cambodia, the majority of which is collateralised by land titles, poses a significant threat to land tenure security for indebted families and has led to serious and systematic human rights abuses in the country’.[52]

   [48] ‘Microfinance and Household Welfare: Cambodia Policy Note’, World Bank Group, February 2019, p.8, 20200902173241 p.11

   [49] ‘Microfinance and Household Welfare: Cambodia Policy Note’, World Bank Group, February 2019, p.8, 20200902173241 p.11

   [50] ‘Cambodia: Micro-Loan Borrowers Face Covid-19 Crisis’, Human Rights Watch, 14 July 2020, 20200901185822

   [51] ‘BTI 2020 Country Report: Cambodia’, Bertelsmann Stiftung, 29 April 2020, p.22, 20200429143313

   [52] ‘Microfinance in Cambodia: Development, Challenges, and Prospects’, Thath, R, Munich Personal RePEc Archive (MPRA), March 2018, pp.11-12, 20200902103026; see also: ‘MFI loan interest capped’, Meta, K, Kimsay, H and Handley, E, The Phnom Penh Post, 14 March 2017, 20200902153705

7. The US Department of State (USDOS) report on human rights practices in Cambodia for 2019 also indicates that ‘third-party debt remained an important issue driving forced labour’. The report refers to the previously mentioned August 2019 LICADHO report, noting that it said two million Cambodians had loans to microfinance lenders, and levels of debt had ‘“skyrocketed” in recent years, leading to child labour and bonded labour’. 20 Also, a 2017 survey showed that ‘48 percent of 1,010 construction workers in Phnom Penh had debts; 75 percent of the debtors owed money to microfinance lending operations or banks, and 25 percent owed money to family members’.[53]

   [53] ‘Collateral Damage: Land loss and abuses in Cambodia’s microfinance sector’, LICADHO (Cambodian League for the Promotion and Defense of Human Rights) and Sahmakum Teang Tnaut (STT), August 2019, Executive Summary, p.2, 20200901182854

8. In April 2020, 135 non-governmental organisations and rights groups in Cambodia issued a joint statement ‘calling for the suspension of all microfinance debts, including interest accrual, and the return of millions of land titles to the public for at least three months’ amid the COVID-19 outbreak in Cambodia. The statement said that these actions were ‘necessary to ensure that people are able to survive this crisis without risking their health or homes and are able to avoid further risky loans that could lead to bonded labour, human trafficking, and other human rights abuses’.[54]

   [54] 9 ‘Collateral Damage: Land loss and abuses in Cambodia’s microfinance sector’, LICADHO (Cambodian League for the Promotion and Defense of Human Rights) and Sahmakum Teang Tnaut (STT), August 2019, Executive Summary, p.1, 20200901182854; see also: ‘Micro-loans raise major questions in Cambodia’, Nachemson, A, The Interpreter, 24 September 2019, 20200902184303

9. According to the groups, more than 2.5 million Cambodians held microloans, with an average loan of more than US $3,800. Workers in Cambodia were reported to be facing severe hardship as the spread of the coronavirus decimated their country’s economy and caused widespread factory closures. On 27 March 2020, the National Bank of Cambodia ‘issued several measures advising banking and microfinance institutions to consider temporary deferment of debt payments for clients from the tourism, garment, construction, and transportation sectors’.[55]

   [55] Country Reports on Human Rights Practices for 2019 - Cambodia', US Department of State, 11 March 2020, Section 7(b), p.29, 20200312145508

   Are there reports of illegal/unofficial lenders harming people that cannot repay a debt?

10. Information was located about illegal/unofficial lenders harming people who cannot repay a debt. Also, while the use of informal money lenders is reported to have declined in Cambodia in recent years, there are recent reports regarding human rights abuses arising from debts owed to microfinance institutions.

11. In October 2019, the Preah Sihanouk provincial military police in Cambodia ‘arrested six Chinese nationals for allegedly confining ten of their countrymen who owed money to a casino’. The police commander said, ‘the six were loan sharks who worked for the casino in Sihanoukville’. The ten victims were released and returned to their families.[56]

    [56] Country Reports on Human Rights Practices for 2019 - Cambodia', US Department of State, 11 March 2020, Section 7(b), p.29, 20200312145508

12. In August 2018, the Phnom Penh Municipal Court ‘charged two Taiwanese men over the unlawful confinement, assault, and extortion of a Taiwanese businessman who owed $220,000 in gambling debt’. Police had arrested the two loan sharks and were seeking to arrest two other men involved in the case.[57]

    [57] ‘Cambodia, Myanmar Workers Face Adversity as Outbreak Devastates Industry’, Radio Free Asia, 27 April 2020, 20200428105841

13. A June 2016 Voice of America article refers to many families in Koh Kong province in Cambodia, who agreed to relocate from their homes in exchange for payments and a new home elsewhere, ending up ‘in debt to loan sharks and selling the land they received in compensation in order to pay off the debts’.[58]

    [58] ‘Cambodia, Myanmar Workers Face Adversity as Outbreak Devastates Industry’, Radio Free Asia, 27 April 2020, 20200428105841

14. An earlier January 2014 article in The Phnom Penh Post refers to a girl who was sold by her mother ‘as collateral to a loan shark’, who, ‘in turn, forced her to work in a local market until she was 12’.[59]

    [59] ‘Cambodia, Myanmar Workers Face Adversity as Outbreak Devastates Industry’, Radio Free Asia, 27 April 2020, 20200428105841

15. In December 2013, police in Phnom Penh arrested three Chinese nationals ‘for kidnapping, assaulting and planning to murder another Chinese man over a $26,000 unpaid debt’. The police said the three Chinese men were ‘loan sharks’ who were owed money by the victim.[60]

    [60] ‘Chinese Loan sharks arrested for confining countrymen’, Kongkea, B R, Khmer Times, 7 October 2019, 20200903131609

16. In relation to abuses arising from debts owed to microfinance institutions, the previously mentioned July 2020 Human Rights Watch report indicates that ‘[c]ivil society groups reported that micro-loan providers engaged in widespread intimidation and threats against borrowers, demanding they pay off their loans. This pressure resulted in coerced land sales or compelled borrowers to take out additional loans to repay debt’. Human Rights Watch also reported that ‘[w]hile the extent of coerced land sales during Covid-19 cannot be fully determined, Human Rights Watch has received[61] reports of such incidents’.[62] The Human Rights Watch report also indicates that ‘[p]ressure on overly indebted borrowers has resulted in many taking out multiple loans to pay off their rising debt’. Reports ‘repeatedly highlighted micro-loan providers’ pressure on borrowers to pay off their debt, in fear of losing their collateralized land and assets’, caused ‘many borrowers to take out larger or multiple micro-loans from different providers, including private lenders, pushing borrowers further into a spiral of insurmountable debt’.[63] In May 2020, Radio Free Asia reported that during the coronavirus pandemic, ‘many Cambodians’ were ‘being forced to sell their livestock and farms to pay off debts to banks and microfinance institutions’.

    [61] ‘Loan sharks charged over kidnapping’, Kongkea, B R, Khmer Times, 13 August 2018, 20200903154652

    [62] Displaced Cambodians Return to Land, Demand More Compensation’, Reaksmey, H, Voice of America, 3 June 2016, 20200903145747

    [63] 'Refuge on margins of society' , The Phnom Penh Post, 1 January 2014, CX324680

17. The August 2019 report by LICADHO and STT refers to researchers, who had interviewed households whose members had suffered human rights abuses as a result of debt to microfinance institutions, observing reckless lending by many microfinance institution credit officers, ‘both by offering loans to clients who clearly could not afford to repay them and in pressuring clients to repay loans through coercive land sales or other unethical measures’.[64] Researchers interviewed 28 households whose members had MFI debt, of which ‘22 had experienced a coercive land sale; 13 had engaged in child labour; 18 had a family member migrate due to debt; and 26 had eaten less or lower quality food in order to make loan payments’. As well, ‘20 households had taken out at least one additional loan to repay an existing MFI loan, and 22 households had borrowed from a private lender while also borrowing from an MFI, indicating that MFI loans and informal private loans are used in tandem, forming a cycle that drives clients further into debt’.[65]

    [64] ‘Chinese Loan Sharks Arrested For Kidnapping Debtor’, Soenthrith, S, The Cambodia Daily, 2 December 2013, 20200903151841

    [65] ‘Cambodia: Micro-Loan Borrowers Face Covid-19 Crisis’, Human Rights Watch, 14 July 2020, 20200901185822

18. A further report by LICADHO in May 2020 notes that updated data indicates the situation regarding links between Cambodia’s microfinance sector and human rights abuses that stem from widespread over-indebtedness had worsened since the release of the August 2019 report. This debt continued ‘to pose a significant threat to land tenure security for indebted families and has led to other serious and systematic human rights abuses across the country, including debt-driven migration’.[66]

    [66] ‘Cambodia: Micro-Loan Borrowers Face Covid-19 Crisis’, Human Rights Watch, 14 July 2020, 20200901185822

    Are there reports that the police are involved in or support illegal/unofficial lending?

19. Recent information was not located about the involvement of police in, or police supporting, illegal/unofficial lending. There are reports that micro-loan providers have threatened debtors that they would involve local authorities such as commune and police chiefs to pressure borrowers to repay their loans.

20. There is widespread official corruption reported in Cambodia, including in the police force. In July 2020, Human Rights Watch said that it had ‘received reports of micro-loan providers threatening debtors, saying they would involve local authorities such as commune and police chiefs to pressure borrowers to repay their loans’. Human Rights Watch also said that ‘[t]he Cambodian government, and in particular the National Bank of Cambodia, should fully investigate these reports and take action into any alleged misconduct by officials supporting efforts by micro-loan providers to pressure borrowers to repay loans’.[67]

    [67] ‘Cambodians Forced to Sell Assets to Repay Loans as Coronavirus Hammers Economy’, Radio Free Asia, 26 May 2020, 20200903104117

21. The August 2019 report by LICADHO and STT refers to the comments of ‘[t]wo current and former MFI executives with more than two decades of experience in the sector’, who ‘told researchers that MFIs regularly pressure their clients to sell land in order to repay their loans. With the condition of anonymity, the two executives described the widespread use of local authorities to increase that pressure when necessary’.[68]

    [68] ‘Collateral Damage: Land loss and abuses in Cambodia’s microfinance sector’, LICADHO (Cambodian League for the Promotion and Defense of Human Rights) and Sahmakum Teang Tnaut (STT), August 2019, Executive Summary, p.1, 20200901182854

22. The earlier March 2018 paper on microfinance in Cambodia indicates that in cases of default, ‘microfinance institutions, as general practice, cooperate with authorities to seize the assets of the defaulting borrowers’. Although not pervasive, this created fear among borrowers and led to Cambodia’s Prime Minister issuing ‘an order to all public officials not to involve themselves with the microfinance institutions in the move to repossess the property of the defaulting borrower’.[69]

    [69] ‘Collateral Damage: Land loss and abuses in Cambodia’s microfinance sector’, LICADHO (Cambodian League for the Promotion and Defense of Human Rights) and Sahmakum Teang Tnaut (STT), August 2019, Executive Summary, p.1, 20200901182854

23. In relation to corruption generally in Cambodia, there is widespread official corruption reported in Cambodia, including in the police force. Cambodia’s state administration reportedly ‘remains characterized by inefficiency, corruption, and bureaucracy in most policy areas’.[70]

    [70] 'Driven Out: One Village’s Experience with MFIs and Cross-Border Migration', LICADHO (Cambodian League for the Promotion and Defense of Human Rights), May 2020, p.3, 20200506115237; see also: 'Local NGO: Microfinance Indebtedness Pushes Rural Cambodians to Migrate', Voice of America, 5 May 2020, 20200506114714

24. There is ‘weak law enforcement’, the courts are ‘prone to corruption and bribery’, and ‘the degree of judicial protection is very low’.[71]

    [71] ‘Cambodia: Micro-Loan Borrowers Face Covid-19 Crisis’, Human Rights Watch, 14 July 2020, 20200901185822

25. The judiciary is marred by corruption and a lack of independence. 'Cambodian courts are subordinate to the executive,[72] and there is political interference in court proceedings.[73] The USDOS report on human rights practices in Cambodia for 2019 indicates that: Corruption was endemic throughout society and government. There w ere reports police, prosecutors, investigating judges, and presiding judges took bribes from owners of both legal and illegal businesses. Citizens frequently and publicly complained about corruption.

    [72] Collateral Damage: Land loss and abuses in Cambodia’s microfinance sector’, LICADHO (Cambodian League for the Promotion and Defense of Human Rights) and Sahmakum Teang Tnaut (STT), August 2019, Executive Summary, p.2, 20200901182854

    [73] ‘Microfinance in Cambodia: Development, Challenges, and Prospects’, Thath, R, Munich Personal RePEc Archive (MPRA), March 2018, p.10, 20200902103026

26. Meagre salaries contributed to “survival corruption” among low -level public servants, while a culture of impunity enabled corruption to flourish among senior officials.[74] The report also indicates there was a ‘pervasive culture of impunity’, with ‘credible reports that government officials, including police, committed abuses with impunity, and in most cases the government took little or no action’.[75]

    Are there reports of the police targeting/arresting illegal/unofficial money lenders who engage in violence to recoup unpaid loans?

    [74] 'Country Reports on Human Rights Practices for 2019 - Cambodia', US Department of State, 11 March 2020, Section 4, p.19, 20200312145508

    [75] ‘Loan sharks charged over kidnapping’, Kongkea, B R, Khmer Times, 13 August 2018, 20200903154652

27. Limited recent information was located about police targeting or arresting illegal/unofficial money lenders who engage in violence to recoup unpaid loans. In October 2019, the Preah Sihanouk provincial military police in Cambodia ‘arrested six Chinese nationals for allegedly confining ten of their countrymen who owed money to a casino’.

28. The police commander said, ‘the six were loan sharks who worked for the casino in Sihanoukville’. The ten victims were released and returned to their families.[76]

    [76] ‘BTI 2020 Country Report: Cambodia’, Bertelsmann Stiftung, 29 April 2020, p.7, 20200429143313

29. In August 2018, the Phnom Penh Municipal Court ‘charged two Taiwanese men over the unlawful confinement, assault, and extortion of a Taiwanese businessman who owed $220,000 in gambling debt’. Police had arrested the two loan sharks and were seeking to arrest two other men involved in the case.[77]

    [77] ‘Chinese Loan sharks arrested for confining countrymen’, Kongkea, B R, Khmer Times, 7 October 2019, 20200903131609

1. In December 2013, police in Phnom Penh arrested three Chinese nationals ‘for kidnapping, assaulting and planning to murder another Chinese man over a $26,000 unpaid debt’. The police said the three Chinese men were ‘loan sharks’ who were owed money by the victim.[78]

   [78] ‘Loan sharks charged over kidnapping’, Kongkea, B R, Khmer Times, 13 August 2018, 20200903154652

   FINDINGS AND REASONS FOR DECISION

   Assessing the credibility claims of an Applicant – General Principles

2. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[79] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

   [79] For example see, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Others (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Abebe v The Commonwealth of Australia (1999) 197 CLR 510; Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Another (1994) 34 ALD 347; Chand v Minister for Multicultural Affairs [1997] FCA 1198; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1998) 93 FCR 220.

3. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan[80] Foster J stated that:[81]

   “…care must be taken that an over-stringent approach does not result in an unjust exclusion       from consideration of the totality of some evidence where a portion of it could reasonably      have     been accepted.”

   [80] (1996) 40 ALD 220

   [81] see, at [482]

4. Numerous decisions have endorsed the principle that benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Lian & Others,[82] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[83]

   “First, it is not erroneous for a decision-maker, presented with a large amount of material, to       reach conclusions as to which of the fact (if any) had been established and which had not. An                  over-nice approach to the standard of proof to be applied here is undesirable. It betrays a     misunderstanding of the way administrative decisions are usually made. It is more apt to a          court conducting a trial than to the proper performance of the functions of an administrator,           even if the delegate of the Minister and even if conducting a secondary determination. It is not      an error of law for a decision-maker to test the material provided by the criterion of what is      considered to be objectively shown, as long as, in the end, he or she performs the function of       speculation about the “real chance” of persecution required by Chan.”

   [82] (1996) 185 CLR 259

   [83] At [25]

5. The Tribunal is not required to accept uncritically any, or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obligated to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:

   “Where there is conflicting evidence from different sources, questions of credit of witnesses        may be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence       as against another, and to act on its opinion that one version of the facts is more probable     than another.” [84]

   [84] [1997] FCA 1198 accessed 15 February 2017.

6. Nevertheless, as Burchett J counselled,[85]it is necessary to:

   “…understand that any rational examination of the credit of a story is not to be undertaken by     picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience          knows that almost any account is likely to involve such discrepancies. The special difficulties        of people who have fled their country to a strange country where they seek asylum, often      having little understanding of language, cultural and legal problems they face, should be           recognised, and recognised by much more than lip service.

   [85] see, in Sundararaj Sivalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

7. The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[86] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991_Butterworths) at pp.84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[87] Nor, is there any rule that a decision-maker must hold a “positive state of disbelief…” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[88] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[89] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[90]

   “…the fact that an applicant for refugee status may yield to temptation to embroider an account of          his or her history is hardly surprising. It is necessary always to bear in mind that the Applicant for     refugee status is, on one view of events, engaged in an often-desperate battle for freedom, if not   life itself.”

   [86] see, in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167, at accessed 15 February 2017.

   [87] see, Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

   [88] Ibid, Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241

   [89] MIMA v Rajalingam (1999) 93 FCR 220.

   [90] (1999) 197 CLR 510 at [191].

8. The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption  that such a fear is held.

100.   If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim a satisfied. The Tribunal notes that in lyer [91] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go further in its analysis of the basis of the claim. This decision was affirmed on appeal.[92]

[91] Iyer v MIMA [2000] FCA 52 (see, the judgement of O’Connor J, 4 February 2000), at [32]-[34].

[92] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

101.   The Tribunal notes that if it makes findings that the applicant’s claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm. Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims. On the other hand, if the decision-maker finds that there is no objective basis for a fear of persecution, there is no obligation  to consider whether there is subjective fear.[93]

[93] see, SAAD v MIMA [2003] FCAFC 65 (Cooper, Carr and Finklestein JJ, 11 April 2003) at [38] and see also, Selliah v MIMA [1999] FCA 615 at [40].

Consideration and determination by the Tribunal of a Certificate issued by the Department pursuant to section 438 of the Migration Act

102.   The Tribunal noted that a certificate was issued by the Department’s delegate pursuant to section 438(1)(b) of the Act.

103. The certificate applied in to particular folios [213] to [216] of information on the Department’s file and pertained to advice received by the Department from its legal officers on matters not related to the applicant’s circumstances or claims before the Tribunal. The documents identified were considered by the Department’s delegate as legal advice and privileged and not the subject of disclosure in accordance with section 438(1)(a) of the Act.

104.   The certificate is signed by Ms Geraldine Taylor Manager Onshore Protection, Victoria as the Delegate of the Minister for Immigration and Border Protection and dated 12 September 2017.

105.   The applicant’s representative was informed by the Tribunal in writing (on 15 November 2023) about the certificate’s existence on file and noted that if the applicant wished to make comment on the certificate, the Tribunal would consider that commentary at the hearing.

106.   At the hearing, the applicant’s counsel provided written comments in reference to the certificate’s validity and reasons for issue.

107.   The applicant’s counsel provided the following comments:

On the issue of section 438(1)(b)

The certificate issued under s.438(1)(b) seeks to protect documents provided by the Department to the        Tribunal on the basis that this information was given to the Department in confidence, and that the          matter contained within the document should not be disclosed because it contains legal advice and is             subject to legal professional privilege.

The Applicant is unable to comment on the validity of the certificate due to the lack of information              regarding the undisclosed document's nature, making it challenging to justify why its information         should be disclosed. Consequently, the Applicant deems the invitation to comment on the certificate's validity as disingenuous, as it places her in an untenable position where generating a meaningful      response is completely impossible due to the absence of essential information.

We submit that the Tribunal should indicate whether the document is relevant to the review of the delegates' refusal of the protection visa. If the document is relevant to the review of the protection visa,    it is our view that the Applicant should have access to the documents so that she can provide a    response. In the matter of BDF15 v Minister for Immigration, Citizenship, Migrant Services, and      Multicultural Affairs [2021] FCA 489, His Honour noted that when documents have not been disclosed      to the appellant or the legal representatives, the appellant is at a disadvantage when it comes to testing   the correctness of that proposition.[94]

[94] BDF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 489 at [44]

On the issue of the Certificate issued under s.438(1)(a)

The certificate issued under s.438(1)(a) seeks to protect a document provided by the Department to the      Tribunal on the basis that disclosure of this information would be contrary to the public interest as it       could reveal confidential investigative methodology and techniques and prejudice the Department’s   ability to detect fraudulent documents in the future.

The matter of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081           (MZAFZ) considers issues regarding the validity of a certificate issued under section 438 of the Act. MZAFZ held that the public interest considerations raised under section 438 refer to public interest         immunity and that under common law and statute, “internal working documents” are not subject to        this immunity, and therefore the relevant certificate was invalid.[95]

[95] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 at [37]

The relevant statute regarding public interest immunity is section 130 of the Evidence Act 1995 (Cth) (Evidence Act), which provides that public interest immunity would apply to information or documents if “adducing it as evidence would:

(a) prejudice the security, defence or international relations of Australia; or
  (b) damage relations between the Commonwealth and a State or between 2 or more   States; or
  (c) prejudice the prevention, investigation or prosecution of an offence; or
  (d) prejudice the prevention or investigation of, or the conduct of proceedings for   recovery of civil penalties brought with respect to, other contraventions of the law; or
  (e) disclose, or enable a person to ascertain, the existence or identity of a confidential   source of information relating to the enforcement or administration of a law of the   Commonwealth or a State; or

(f) prejudice the proper functioning of the government of the Commonwealth or a State”.[96]

[96] Evidence Act 1995 (Cth) section 130

Given the above considerations, we argue that since the certificate lacks adequate specificity in     providing necessary justifications for claiming public interest immunity, and is more appropriately    categorised as internal working documents, the certificate is invalid.

It is further submitted that the risk of revealing “departmental working methodologies” does not    outweigh the Applicant’s procedural fairness rights, particularly when she faces the prospect of           removal from Australia and the real risk of serious harm in Cambodia. Any documents that form part    of her assessment are relevant to her protection visa application. In the interests of procedural              fairness, we submit that the certificates should be found invalid so that the Applicant can respond to           concerns raised by the Department.

If the Tribunal is of the view that the certificates are still valid, we submit that reductions or          removal of specific sensitive information from the documents can be undertaken to allow the           release of the remaining content.

108.   The Tribunal noted the applicant’s counsel’s submissions above, but the Tribunal was of the opinion having considered counsel’s submissions, that the applicant’s counsel had misunderstood the purpose of the issued certificate and the reasons behind the Department’s request that the Folios specified to not be the subject of disclosure because they involved a matter or matters of legal professional advice provided to the Department or to the delegate and therefore were the subject to legal privilege.

109. Therefore, for its part, the Tribunal finds that the certificate in question was properly issued in accordance with s.438(1)(a) and applied to Folios [213]-[216] of the File number [deleted] and were properly claimed as legally privileged and that their disclosure would be contrary to the public interest.

110.   The Tribunal also finds that the information the certificate attaches to Folios [213] to [216] and does not concern or is relevant to the applicant or to her claims and therefore, and forms no part of the Tribunal’s conclusions on the matters dealt with in this decision.

111.   Accordingly, the Tribunal finds that the certificate valid, but that the information it restricts from being disclosed pertains to matters of legal professional privilege and is not information relevant to the applicant’s person or the issues dealt with by the Tribunal in this decision and the Tribunal concludes that the documents be withheld from public disclosure.

Consideration of the Applicant’s claims – Is the Applicant entitled to protection as provided for in section 36(2)(a) of the Act?

112.   The applicant, is [an age]-year-old woman, born in Cambodia. A Cambodian citizen and practicing Buddhist, she is proficient in Khmer and possesses limited proficiency in English. She is a single mother caring for her three children, two of whom grapple with severe autism. In Australia, she lives with her [sister], and her sister’s young family.

113.   The applicant claimed that her family in Cambodia was impoverished and facing financial hardship. In order to support the family, the applicant’s mother borrowed a significant sum of money from a local loan shark but, in time, encountered difficulties in meeting the repayments. As a result, the loan shark came to the applicant’s family home, and coerced the applicant and her [sister] into sex trafficking as a means of repaying the familial debt. At that time, the applicant was a minor and had to follow her [sister] into this forced servitude.

114.   The Tribunal noted in paragraph [22] that the applicant’s credibility was the subject of question by the Department’s delegate when they were assessing the applicant’s protection’s claims. Indeed, at the various stages of the Protection visas’ assessment process, the applicant varied and changed her claims. The Tribunal understands that when a decision-maker is faced with variations in the claims made an element of doubt or question about credibility surfaces. The Tribunal has considered the applicant’s and her sister’s evidence in on two separate occasions and the Tribunal is of the view having listened carefully to both the applicant in this and her sister in her hearing of her claims, that the two women faced the same issue: a familial debt obligation had had been passed on by necessity and desperation upon them by their parents and this obligation to a loan shark caused them both to be exposed to the common fears both claimed.

115.   It is important to comprehend that the applicant and her sister in her separate application also considered and determined by this Tribunal, emerge as vulnerable women, a fact noted by the Tribunal as Ms Cassim described it in her submission by the ‘petite frame’ and ‘delicate demeanour’ both sisters exhibited. That vulnerability is sourced in a personal history marked by trauma and fear while in Cambodia and by the struggle in raising children with disabilities in a country where the applicant does not speak English.

116.   In light of this, the Tribunal accepts the suggestion made by the applicant’s counsel, that the Tribunal must be guided and have in mind at all times, the Guidelines on the Assessment of Credibility and Vulnerable Persons that outline the difficulties faced by applicants affected by trauma in presenting their claims and the manner in which decision-makers should take into account in their assessment of credibility.[97] As detailed in the Assessment of Credibility, traumatic experiences may impact upon a number of aspects of an Applicant’s case including, timeliness of an application, compliance with migration laws, ort the consistency of statements made since arrival in Australia. Indeed, traumatic experiences can also adversely impact the applicant’s capacity in providing testimony of such events.[98]

[97] Administrative Appeals Tribunal, Migration and Refugee Division: Guidelines on the Assessment of Credibility (July 2015) paragraphs [29-33]; Guidelines on Vulnerable Persons (November 2018) paragraphs [92-95].

[98] Administrative Appeals Tribunal, Migration and Refugee Division: Guidelines on the Assessment of Credibility (July 2015) paragraph [29].

117.   The Tribunal is mindful having listened and questioned the applicant on the evidence before the Tribunal, that the variation in evidence as noted by the delegate in his decision to refuse, was the product of fear and trauma as the applicant and her sister both experienced while in Cambodia, which has been further difficult by the uncertainty both (women) have experienced during the visa assessment process. The Tribunal in the consideration of its reasons that follow, has in its mind when considering all the evidence the Guidelines as they apply to the applicant’s particular circumstances.  

118.   The Tribunal having considered the applicant’s oral and written evidence and the submissions of her legal counsel, Ms Cassim, accepts that the applicant and her [sister] who is also involved in the circumstances which led the two to Australia, that the applicant’s family background was one bedevilled by issues of economic and financial stresses which would have called on the applicant (and [sister]) to assist in some way the financial situation of the family unit. Indeed, the culture prevalent in Cambodian society (as considered by the Tribunal from the available country information) would indicate that in times of economic stress or severe financial strife on the family unit in Cambodia, parents do utilise their children as economic levers, sacrificed or offered in order to provide some financial/economic relief to the family unit as a whole or absolve familial debts which have accumulated.

119.   The applicant claimed that her parents decided for the betterment of the family unit to involve themselves in a ‘business’ which involved them (the parents) procuring a loan for US$100,000.00 from a local loan money dealer (or loan shark) on the basis that security be provided in the form of the family home. The purpose of this loan was for the parents to re-lend part of that money to others at a higher interest rate, thus gaining for the parents a profit which would contribute to the added income for the family and contribute over time to the repayment of the original loan.

120.   It was noted by the Tribunal from the evidence that very little documentation was produced by the applicant concerning the existence of such a loan being in existence but the Tribunal having considered the available country information which has been incorporated within this decision at paragraphs [56] and [91] it supports the applicant’s claim that such agreements for loans does occur (as the applicant described in her evidence) in Cambodia and the Tribunal accepts that the applicant’s parents were involved with a local money lender and procured a sizeable loan of money in US ($) dollars by placing the family home as security for the loan.

121.   In her evidence, the applicant stated that during the time her parents were conducting their business of lending to other what they themselves had borrowed from the money lender, her father fell ill, and remaining capital was transferred to pay the doctors and hospital costs incurred because of her father’s sudden illness. As a consequence of this, the parents were not able to meet their obligation to the money lender and in time, the family home was repossessed but that was not the end of the problem. The money lender then demanded the payment of interest that had been accruing for a considerable period of time. The applicant’s parents not being able to meet these demands decided that or came to the ‘agreement’ as the applicant described it in her evidence, to allow the applicant and her sister, to ‘assume their debts. The applicant was told (by her parents) that it was expected of them to ‘work for the loan shark to pay off the family debt.’ The Tribunal accepts that the circumstances as described by the applicant – where children, are expected to step-in to shoulder the financial responsibilities of parents and the family in general, in difficult times, is a common occurrence in Cambodia and that the applicant and her sister found themselves in such a difficult situation.

122.   In her evidence, the applicant claimed that she and her sister were taken by the money lender to a ‘suburb’ of the city and confined in a room. After a few days, the two were provided with clothes and told that that their work would be to ‘keep people company.’ The applicant determined that this a situation which would involve her sister and her in them being sold for ‘sex.’ The two sisters subsequently escaped from those premises but had fears of being found and forced to return to their fate being sold for sex in order to repay their parents’ debts and this caused them and their mother to organise as it was done, for the two to later leave Cambodia for Australia.

123.   In the submissions before the Tribunal, it was claimed that the applicant meets the definition of refugee in section 5H of the Act because she is outside the country of her nationality and had a well-founded fear of persecution in Cambodia based on her membership of a particular social group (PSG).

124.   As the Act states, ‘a refugee’ is a person who has, [see, s. 5J (1)(a)], a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of  a particular social group or political opinion.’ The applicant claimed to fear from the general public in Fiji because she ‘a single/separated woman who is being pursued by local money lender seeking her to redeem the debts of her parents’. More to the point, it would also be required of the Tribunal to consider whether her claims fall within ‘…membership of a particular social group…’ such as a ‘single woman at risk of sex trafficking.’

125.   The Act defines what a particular social group is. The elements that must be established are that (1) there is a characteristic shared by each member of the group, (2) the person claiming to be a member of the group shares (or is perceived as sharing) the characteristic and (3) the characteristic is not a fear of persecution. In addition to this, the characteristic must be innate or immutable, or so fundamental to a member’s identity or conscience, that the member should not be forced to renounce it.

126.   The applicant claimed that based on her membership of the PSG mentioned above, meant that she was susceptible to violence, sexual exploitation, sexual assault, limited access to education and employment opportunities, and this common experience of disadvantage distinguishes the applicant as a distinct social group for the purposes of section 5L of the Act. The applicant also claimed that her protection claims should be considered by the Tribunal on an individual and cumulative basis. It was submitted that the applicant fled Cambodia as a victim of sex trafficking. It was also submitted that if her application for Protection failed, she will return to Cambodia as a single unmarried mother with or without her three young children (two of them having special needs), no family support, and no means to support herself or her young family. Adding to these issues is the applicant’s fear that she would eventually be located by the money lender. It was made clear to the Tribunal, by the applicant’s counsel, that being a woman with limited education and with no financial support, she had no means of independent subsistence and that ‘prostitution’ would be the ‘only way in which she will be able to make a living’ if she was forced to return to Cambodia.

127.   The country information submitted and also independently referenced by the Tribunal seems to indicate the increasing number of human trafficking for the sex industry in Cambodia which is directly linked to poverty, lack of education and general social conditions. The Tribunal noted that:[99]

[99] Betti Rosita Sari, The Human Trafficking of Cambodian Women and Children for the Sex Industry: Internal and External Case Study, Journal for Area Studies, Volume 1 No. 2 (2010), 221-236, 221.

“the patterns of economic development (including expansion of the tourist industry,        privatisation and corruption) and gender relations in Cambodian society have interacted to           create the conditions for a flourishing sex industry…”

128.   Recent studies indicate that Cambodia has become a destination for sex trafficking, with high levels of internal trafficking being experienced.[100] Women and children mostly experience sexual exploitation, with boys living in tourism destinations also being vulnerable.[101] Victims of trafficking endure unspeakable hardship, with physical violence, sexual abuse, harassment, threats, and coercion being common experiences for many trafficked person.[102]These victims are scarred for life, and will commonly suffer serious trauma, depression or self-harm.[103]

[100] United Nations Office on Drugs and Crime (UNODC), Trafficking in persons from Cambodia, Lao PDR and Myanmar to Thailand, August 2017, xi

[101] Ibid at xi

[102] Ibid at ix

[103] Ibid at ix

129.   Debt bondage is one of the most frequently used methods of binding women. Whilst women have been trafficked by brothel owners, it is reported that they still feel an obligation to pay back brothel owners and believe that eventually they will be able to make their own money. This expectation may prove false as initial debts can be inflated through charges for accommodation, food and interest on the original loan.[104] As a result, it becomes evident that escaping this type of sexual exploitation and debt bondage can be exceedingly challenging once an individual becomes entrapped in these situations.

[104] Betti Rosita Sari, The Human Trafficking of Cambodian Women and Children for Sex Industry: Internal and External Case study, Journal of Area Studies, Vol 1 no. 2 (2010), 221-236, 225

130.   In Cambodia, a survey with child domestic workers found that it is a common practice, almost exclusively practiced by parents who are exploiting their children’s labour. Children are used to repay a parent’s debt, and these practices are rarely openly questioned due to the strong duty of the child towards the parent.[105] Sex trafficking is evidently prevalent in Cambodia, with vulnerable populations, including women and children, continuing to be at risk.

[105] Betti Rosita Sari, The Human Trafficking of Cambodian Women and Children for Sex Industry: Internal and External Case study, Journal of Area Studies, Vol 1 no. 2 (2010), 221-236, 225

131.   The country information indicates the issues of sex trafficking, debt bondage, and child exploitation which are dominant in present day Cambodia. Indeed, observing the prevalent situation in the applicant’s country of origin, the Tribunal accepts the applicant’s claim that she faced exploitation and violence in the form of sex trafficking, the information the Tribunal accessed on its own and that which was submitted to the Tribunal to consider by the applicant’s legal counsel, Ms Cassim, emphasises as Ms Cassim put it in her submission, ‘the serious and enduring consequences that victims of trafficking often experience’ in Cambodia. More to the point, the description of debt bondage and the difficulties of those trying to escape such situations do in many ways describe the difficulties the applicant encountered, including being forced into sex trafficking in order to repay her family’s debts.

132.   The Tribunal accepts that familial debt can be passed down from parent to child, a circumstance that the applicant and her sister have both experienced. The Tribunal further noted the country information referenced by Ms Cassim in her submission, which made reference to ‘a conceivable risk the applicant together with her three children’ could be ‘susceptible to exploitation as a means of repaying the family debts if they were returned to Cambodia.’[106]

[106] see AAT File_ Written Submission_ dated 22 November 2023_ Gadens Lawyers_ at p. 7 paragraph [57].

133.   The applicant also raised concerns about her status as a woman in Cambodia. Country information submitted reported that women in Cambodia continue to face adversities based on gender-role stereotyping. For example, a study undertaken on abortion in Cambodia details that pre-marital sex is widely socially disapproved of in Cambodia. Further, pre-marital pregnancy is considered shameful and leads to loss of reputation for the woman and her family and will cause problems in securing a good marriage.[107] Pre-marital sex is “against tradition”, with some stating it “angers the ancestors”.[108] It is widely accepted that a “good” woman will remain a virgin until marriage, with high value being placed on virginity. There is a Khmer saying which translates to “men are gold, women are cloth” with the connotation that women can be worn, torn and stained, and men cannot.[109]

[107] See Joanna Hemmings and Ben Rolfe, Abortion in Cambodia: Care seeking for abortion and family planning services, Reduction in Maternal Mortality Project, July 2008, 19. 

[108] Ibid

[109] Amnesty International, Breaking the Silence: Sexual Violence in Cambodia, March 2010, 46. 

134.   Women’s status in Cambodian society is also heavily influenced by the traditional code of conduct known as “chbab srey” or “women’s law”. This code of conduct is said to ‘legitimize discrimination against women and impedes women’s full enjoyment of their human rights’.[110] Up until 2007, chbab srey was taught in schools and embedded in school curriculum.[111] Whilst chbab srey is no longer part of Cambodian school curriculum, it is considered an important piece of Khmer culture.[112] A report by the Cambodian NGO CEDAW Committee and the Cambodian Committee of Women has commented on chbab srey stating: [113]

[110] Ibid

[111] Emily Anderson and Kelly Grace, From Schoolgirls to “Virtuous: Khmer women: Interrogating Chbab Srey and Gender in Cambodian Education Policy”, Studies in Social Justice, Vol 12, Issue 2 (2018) 215 – 234, 217. 

[112] Cambodian NGO Committee on CEDAW and Cambodian Committee for Women, Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women in Cambodia, 2010, 3. 

[113] Emily Anderson and Kelly Grace, From Schoolgirls to Virtuous: Khmer women: Interrogating Chbab Srey and Gender in Cambodian Education Policy”, Studies in Social Justice, Vol 12, Issue 2 (2018) 215 – 234, 217. 

Despite the constitutional infrastructure now in place, the difference between the de jure and      de facto situations is a fundamental obstacle. This obstacle arises due to the socio-political context of Cambodia. The recognition of rights and freedoms contained in the constitution and        in other legal and relevant entities is not benefitting women as intended. This is due to the      observance of moral codes and social practices (Chbab Srey) that regulate the female     population. This situation creates high rates of illiteracy among women and restrains their movements and opportunities.

135.   Additionally, whilst gender-roles in Cambodian society have varied over time, women’s subservience to men is described as remaining by and large intact.[114] Women are unrepresented within executive branches of government, parliament, and civil service, in courts and the police force.[115] A report conducted in 2008 states that many young women have insecure, low paid employment in garment factories, bars or karaoke clubs or are involved in small scale trading.[116]

[114] Emily Anderson and Kelly Grace, From Schoolgirls to Virtuous: Khmer women: Interrogating Chbab Srey and Gender in  Cambodian Education Policy”, Studies in Social Justice, Vol 12, Issue 2 (2018) 215 – 234, 217. 

[115] Amnesty International, Breaking the Silence: Sexual Violence in Cambodia, March 2010, 45. 

[116] see,  Joanna Hemmings and Ben Rolfe, Abortion in Cambodia: Care seeking for abortion and family planning services, Reduction in Maternal Mortality Project, July 2008, 18. 

136.   Also, whilst gender-roles in Cambodian society have varied over time, women’s subservience to men is described as remaining by and large intact.[117] Women are unrepresented within executive branches of government, parliament, and civil service, in courts and the police force.[118] A report conducted in 2008 states that many young women have insecure, low paid employment in garment factories, bars or karaoke clubs or are involved in small scale trading.[119]

[117] Emily Anderson and Kelly Grace, From Schoolgirls to Virtuous: Khmer women: Interrogating Chbab Srey and Gender in Cambodian Education Policy”, Studies in Social Justice, Vol 12, Issue 2 (2018) 215 – 234, 217. 

[118] Amnesty International, Breaking the Silence: Sexual Violence in Cambodia, March 2010, 45. 

[119] See Joanna Hemmings and Ben Rolfe, Abortion in Cambodia: Care seeking for abortion and family planning services, Reduction in Maternal Mortality Project, July 2008, 18. 

137.   From the country information referenced and referred to by the Tribunal, it is widely acknowledged that single mothers in Cambodia bear a disproportionate impact of income poverty. There are significant constraints on single women’s ability to work long hours, stemming from caregiving responsibilities, limit their earning potential. Added to this, job instability is more prevalent among single mothers (like the applicant) and given factors such as a lack of job security, limited access to benefits, and diminished bargaining power in the local employment market. These challenges make it difficult for a single mother or mothers to maintain a stable income. The applicant, as single mother and with two children with special needs, will experience these challenges and added to her difficult circumstances would be the social stigma and discrimination within her local community. All together, these factors would contribute to a persistent cycle of poverty and the inability to provide for her children and to generally subsist. As noted earlier in this decision (see paragraph [55]) a Human Rights Watch report highlighted significant issues faced by women workers in Cambodia, in particular concerning pregnancy-related discrimination and sexual harassment in the place of employment.[120] The study recorded that pregnant women on short-term contract often faced non-renewal, and managers frequently neglected to provided reasonable accommodations, such as more frequent bathroom breaks or lighter duties without a corresponding adjustment in pay.[121] It is clear that the needs of the applicant as a single mother (women) with children needing to be in employment in order to subsist and to provide for her young family is largely contingent (according to the country information) upon an employer’s willingness to accommodate individual circumstances and the country information indicates that no such support exists in Cambodia. This is all consistent with the applicant’s evidence and perspective that was described in her statutory application[122] where the applicant states that if she was returned to Cambodia, she would be left with no alternative but to engage in sex work as a means of providing and supporting her children. The Tribunal accepts that this ‘acknowledgement’ as Ms Cassim described it in her submission underscored ‘the inherent risks’ that were associated with such a choice’, which created a ‘potential threat not only to the applicant herself but also to the well-being of her children.’[123] Overall, the Tribunal accepts, that the applicant is a mother of three children, with two of them having special needs and has never been married. The prospects of the applicant upon her return to Cambodia and securing employment in an area of employment unrelated to prostitution and earning a sufficient livelihood to support herself and her children, is not (on the information before the Tribunal) possible because of her personal set of circumstances which she is powerless to change for the better.

[120] Human Rights Watch, “Work Faster or Get Out”, 18 March 2015, {Accessed 16 November 2023}.

[121] Ibid

[122] see, AAT File _ Applicant’s Statutory Declaration dated 22^nd November 2023, see paragraphs [23] to [26] and paragraphs [30] to [34] at pp. 3-4.

[123] Ibid

138.   Finally, having considered the available country information in its entirety, the evidence and Ms Cassim’s submissions the Tribunal further accepts and finds that the risk of serious harm also attaches to all parts of Cambodia in the applicant’s circumstances, and there is nowhere within Cambodia to which the applicant could relocate to escape the risk of serious harm as it has been described to the Tribunal.[124]

[124] Therefore, section 5J(1)(c) does not act as a barrier to the applicant seeking protection as provided for by section 36 of the Act.

139.   After considering the evidence and submissions made, the Tribunal is satisfied and finds that the applicant meets the definition of refugee as provided for in section 5H of the Act as she is outside her country of origin (Cambodia) and is currently in Australia and has a well-founded fear of persecution in Cambodia based on membership of a particular social group (PSG). The PSG which the applicant belongs to the Tribunal finds as being:

§Single/separated women in Cambodia; and

§single woman at risk of sex trafficking

140.   Further the Tribunal finds that the applicant’s membership of the above PSG means that she is susceptible to violence, sexual exploitation, sexual assault, limited access to education and employment opportunities, and this common experience distinguishes the applicant as being a member of a distinct social group for the purposes of section 5L of the Act.

141.   Also, the Tribunal finds after having considered the evidence and submissions that the risk of harm to the applicant amounts to serious harm as is provided for in section 5J(5) of the Act and that serious harm includes a serious threat to her capacity to subsist, denial of basic services and/or denial of capacity to earn a livelihood.

142.   Therefore, the Tribunal accepts and finds that the applicant being a single/and unmarried women with children caused her to have a well-founded fear of persecution being forced to participate in the sex industry as a means to subsist because of the systematic and community-based discrimination which is directed towards her or for any other reason or reasons as provided for in section 5J(1)(a) of the Act

143.   For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

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

Peter Vlahos
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

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receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

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5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

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5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(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.

(6)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.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36     Protection visas – criteria provided for by this Act

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(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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