1721602 (Refugee)

Case [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 18th 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…

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Details
AGLC
1721602 (Refugee) [2023] AATA 4857
Case
[2023] AATA 4857
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of a Cambodian national seeking a protection visa in Australia. The applicant arrived in Australia in 2012 and lodged her initial protection visa application in 2016, which was found to be invalid. A subsequent application was lodged, and the applicant's true identity was confirmed by the Department of Home Affairs. The Tribunal was required to determine whether Australia owed protection obligations to the applicant under the Migration Act 1958 (Cth).

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether she had a well-founded fear of persecution or a real chance of suffering significant harm if returned to Cambodia. This involved assessing whether she belonged to a particular social group and whether the Cambodian authorities would be unable or unwilling to protect her. The Tribunal also considered whether the applicant had a right to enter or reside in another country, which would preclude the application of protection obligations.

The Tribunal noted that the applicant, a single mother of three children, two of whom have severe autism, had a history of fleeing a debt-ridden family situation in Cambodia. She claimed that she and her sister had been forced into the sex industry by a money lender to repay her parents' debts, and they had escaped this situation. The applicant also stated that women in Cambodia lack rights and protection, and that authorities are corrupt. The Tribunal, having considered the evidence presented, including Ministerial Direction No. 84 and country information, concluded that the matter should be remitted for reconsideration. The Tribunal found that the applicant did not have a right to enter or reside in any country other than Cambodia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 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 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. 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. 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] 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. 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 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 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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 highranking [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 isseparated 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 wouldrather 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 theperpetrator 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 travelto 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 forfive 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. Theperson 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 nolonger 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 withtheir 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 walkhome. 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 theDepartment 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.