1722120 (Refugee)

[2023] AATA 4830

1722120 (Refugee) [2023] AATA 4830 (14 December 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Shabnum Cassim

CASE NUMBER:  1722120

COUNTRY OF REFERENCE:                   Cambodia

MEMBER:Peter Vlahos

DATE OF DECISION:  14 December 2023

DATE CORRIGENDUM

SIGNED:17 January 2024

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.At paragraph 121 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:  1722120

COUNTRY OF REFERENCE:                   Cambodia

MEMBER:Peter Vlahos

DATE:14 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 14^th December 2023 at 9.00AM.

CATCHWORDS
REFUGEE – protection visa – Cambodia – loan shark – family debt – debt bondage – forced prostitution – particular social group – single woman at risk of sex trafficking – single/separated women in Cambodia – employment opportunities – capacity to subsist – denial of basic services – state protection – issues surrounding section 438 certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65, 438
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
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 220
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration 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 19 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 29 November 2023 to give evidence and present arguments. The Tribunal also received no oral evidence from any named witness or witnesses but received written statement of support from the applicant’s (Australian citizen) spouse.[1]

   [1] see AAT File_ statutory declaration dated 4 December 2023_ [Mr A] and ‘copy uncertified’ Australian Passport biodata page

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

12. 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 and Identity

13. 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

14. The applicant arrived in Australia [in] December 2011on a Cambodian passport no. [number] in the identity of ‘[Alias 1]’, a Cambodian national born on [date]. On 8 June 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 [the applicant] and that she arrived in Australia on a ‘fake’ passport.

15. 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 1] to [the applicant]. Subsequently, the applicant attended an identity interview with a Departmental officer on 3 February 2017.

16. On 13 April 2017, the Departmental officer/delegate was satisfied that the applicant’s true identity is [the applicant]. A copy of the decision is on the Department’s file[2] which the Tribunal has cited and therefore, there is no reason for the Tribunal in this instance, to doubt this identity finding.

    [2] Department of Home Affairs File no. [number] see Folios [56] – [88]

17. 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.

18. 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

19. 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

20. 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]/12/2011	Arrive in Australia on a [temporary] visa in the identity of [Alias 1]
24/01/2012	Unlawful non-citizen
08/06/2016	Applied for XA866 visa
26/09/2016	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, [age]-year-old woman, who was born in Khan Tuok Kork, Phnom Penh, Cambodia. She is fluent Khmer and has a basic understanding of English. The applicant is partnered with an Australian citizen[3] and together they have three children: [Child B], [Child C], as well as [Child D] from a previous relationship. The applicant provided evidence to the Tribunal[4] which indicates that the child, [Child D] is provided with child support by his biological father, but his father is not actively involved in his life. The applicant, currently, resides in a family home shared with her younger sister and her [number] children.[5] The applicant has her parents currently living in Cambodia. The applicant’s level of education is at a very basic level. The applicant is not currently employed as she is on full-time basis involved in the care of her children and devoted to her on-going home duties.

   The Applicant’s claims for Protection

   [3] see AAT File submission _date 22 November 2023 and document _attachments_

   [4] Ibid

   [5] Ibid

2. The applicant’s claims for protection, included those provided at her interview with Department’s delegate, and supporting evidence are as follows in summary:[6]

   [6] and are contained in Department of Home Affairs File no. [number]

   In her written statement, the applicant claimed that:

   • The Applicant left Cambodia because she fears for her life and safety. If she returns, she may be tortured or killed. She was threatened by the perpetrator that if she resisted, they would harm her.
   • She did not seek help from the authorities because they are corrupted and may demand money from her if she filed a report. There is no protection for women.

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

   • Her mother’s business went bankrupt, and they lost their home. Someone convinced their

   mother to send them to Australia. She came to Australia to work and to make money.

   • She collected the passport and visa from the Australian embassy. She knew the passport was

   not in her name. The person who organised this told her that there would be no problem. She
             did not have a full understanding of the procedure. It cost USD5,000 or 6,000 to arrange her
             travel. 50% had to be paid in advance and the balance after she arrived in Australia. Her
             mother borrowed the money.

   • She does not remember who met her at the airport, they held up a sign with her name. They

   took her to [Suburb 1] and found her some farm work near a mountain where she picked [fruits] and [vegetables].

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

   • Her father is self-employed and operates a [specified] business. She is in Australia with her sister [Ms E]. She has [number of siblings] in Cambodia. She is in regular contact with her parents and calls them about once a week.
   • She came to Australia on a false identity. The document cost about USDS,000. She does not

   have a full understanding of the reason why she could not travel in her true identity.

   • Around 2008 or 2009 her mother’s business was heavily in debt. She does not know how

   much money her mother owed. After the lender ‘confiscated’ their house, they still owed about
             USD10,000. In around 2009 or 2010, she and her sister [Ms E] agreed to work for the lender
             so that their parents would not be put in jail. They were taken to a double storey house with
             many bedrooms. She saw many men come and go. Then, they were told to take a good bath
             and dress nicely to receive guests. They refused and were mistreated. About two or three
             days later, they escaped by jumping down a window upstairs. After the incident, their mother
             organised for the ‘fake’ passport and visa for her and her sister to escape Cambodia. She did
             not mention this incident in her earlier dealing with the department because it was shameful.

   • After arriving in Australia, she worked in a farm. She is no longer working because she has to

   look after her son [Child D]. [Child D]’s father is an Australian citizen. Victoria Legal Aid is
             assisting her with the paternity dispute because [Child D]’s father had denied paternity.

   • When she got pregnant, she needed support. Her social worker advised that it was possible

   for her to apply for a protection visa. She did not apply for protection earlier because she did
             not know anyone in Australia whom she could talk to.

   • She is not able to support her child on her own in Cambodia. She may also be killed or forced into prostitution if she returns.

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

3. In support of her application, the applicant submitted the following documents and evidence to the Tribunal:

   §Statutory Declaration – [the applicant] dated 22 November 2023

   §Child Support Assessment (‘copy’ uncertified) for child [Child D] dated 9 July 2023

   §Birth Certificates  of the applicant’s children:

   (a)   [Child D]     born [date]

   (b)   [Child B]      born [date]

   (c)   [Child C]     born [date]

   §Passport (‘copy’) of applicant’s current partner, [Mr A]

   §Evidence of cohabitation

   (a)   [Gas account] dated 24 October 2023

   (b)   Residential Tenancy Agreement dated 20 March 2022

   §Also, submission provided by the applicant’s legal counsel, Ms Shabnum Cassim (Gadens Lawyers) dated 22 November 2023.[7]

   [7] see AAT File no. 1722120_submission by Gadens Lawyers_ dated 22 November 2023

4. The Tribunal asked the applicant to explain (through the interpreter) the issues and circumstances which led her to decide to leave Cambodia and to come to Australia. The applicant’s response was that ‘her family (father and mother) owe a heavy debt and that the creditor demanded payment of that debt’. The applicant went on to tell the Tribunal that the person her parents had dealt with in order to secure the debt, was told that the debt and interest could not be satisfied immediately and as he had demanded and in response, to this, the creditor demanded that the applicant and her sister be handed over to him to work as he chose in order to repay the debt incurred by the applicant’s parents.

5. The Tribunal asked the applicant – what type of employment was expected of her and her sister to undertake for her parents’ creditor in order to repay the debt amount? The applicant (exhibiting open emotion) told the Tribunal (through the interpreter) that she and her sister were expected to work as ‘prostitutes’ in order to settle the parents’ debt commitments.

6. The Tribunal asked the applicant – how much money was involved that was owing to her parents’ creditor? The applicant said that her parents owed approximately USD$100,000.00. The applicant could not tell the Tribunal about any interest that may have been included in this stated debt amount nor provide any evidence in writing to show that a debt had been secured between her parents and their creditors.

7. However, further to what was stated by the applicant in paragraph [27], the applicant told the Tribunal that (confirmed) that there were no documents. Any documents that may have been signed by her parents were in the creditor’s possession, according to the applicant. Also, the applicant told the Tribunal that after her parents told the creditor that they could not repay the accrued debt and interest, the applicant said, that the creditor took immediate possession of the parents’ home, forcing her parents to find other accommodation.

8. The Tribunal asked the applicant to explain, if she could, whether the repossession of her parents’ house occurred through legal proceedings in the courts or by some consent agreement reached between the creditor and her parents? The applicant said that her parents’ home was ‘repossessed’ by her parents’ creditor with the consent of her parents, and this was done as an attempt by them to redeem part or all of the debt they had incurred (but the applicant was not sure).

9. The Tribunal asked the applicant – why was the money borrowed by her parents? The applicant said, that the ‘money was borrowed’ in order for ‘her parents to establish their own business’. The applicant described her parents’ business as one where her parents having borrowed a sum of money, would then, allow other people to borrow that money from then on condition they repaid the principle amount plus the ‘agreed interest’.

10. The applicant told the Tribunal, that her father fell suddenly ill and the business he and her mother were engaged in collapsed and what money they had was transferred towards paying for the father’s medical treatment.

11. The applicant was asked if she could remember – when these events had occurred? The applicant admitted to the Tribunal that she “did not really know what date” this all happened.

12. The applicant went on to tell the Tribunal, that “…I only knew that when they (meaning the ‘creditors’) confiscated the property (parents’ home)”.

13. The applicant made the further comment that

    “…cannot remember … they knew (reference to her parents and the creditor) and          made amendments to contract to include my name and the name of my sister…”

14. The applicant was asked by the Tribunal – what occurred after the contract was amended and her parents’ home confiscated? The applicant said that the creditor came and ‘took her and her sister away.’ The applicant went to say, that her and her sister were taken to another suburb of the city – close or in the city centre and confined in a room. The applicant remembered that she and her sister were confined in this room (of an unidentified building) for ‘3 to 4 days.’

15. The applicant also recalled that the two women were provided with various garments and told by their captors to wash and get properly dressed. The applicant also recalled being told that that after the two had cleaned themselves and dressed properly, they would begin ‘to receive guests’. The applicant and her sister understood from all of this that they were to be ‘forced’ to be ‘prostitutes’ and the two decided when matters were ‘quiet’ to escape from ‘a window’.

16. The two sisters ‘jumped from the window’ onto the street below (and though slightly injured because of the height and descent) they managed to find the main street and to seek assistance.

17. Thereafter, the applicant said she, and her sister (with her parents’ assistance) attempted to relocate within Cambodia. After a while, (according to the applicant) the two sisters were able to find temporary safety but had to relocate when it became apparent that there were people looking for both of them. The applicant said, that during this period, she maintained contact with her mother who told her that the creditor (and his people) had frequented the family house and were looking for them.

1. The applicant told that the Tribunal, that recognising the ongoing risks in Cambodia, she and her family came to the conclusion that remaining in Cambodia was not a safe option. Consequently, the applicant’s mother assisted the applicant and her sister in making the arrangements for the two to leave Cambodia for Australia. It was the applicant’s understanding that the two sisters would go to Australia and once established (safely) in Australia, the two would find work and through their earnings repay the parents’ debt.

2. The Tribunal was told that the applicant and her sister were told by their mother to see an individual (not identified to the Tribunal) who would arrange for their passports, visas and safe exist from Malaysia. The applicant and her sister did as they were told. They secured their passports and other travel documents and proceeded to leave Cambodia.

3. The applicant said that the arrangements made by her mother for the securing of all documents cost her (mother) approximately US$5,000.00 and that an amount of US$2,000 had been repaid and the amount of US$3,000.00 remains outstanding.

4. The applicant provided no further details about the passport/visa arrangements, except to tell the Tribunal she could not tell names because she did not know and that her parents also had lost contact with these persons because her parents in order to avoid the creditor and his people have since the applicant and her sister left Cambodia been shifting residences.

5. The Tribunal asked the applicant – if she had to return to Cambodia, what was her immediate fear? The applicant said that “…I fear they (the creditor) will find me.” The applicant was asked, how would the creditor and his people find her if she returned to Cambodia? The applicant said, “that he will find out about her return to Cambodia through family and relations…” and went on to say, that the creditor would “…legal means to catch [her] me…”

6. The applicant was asked to describe to the Tribunal – who was this creditor or loan shark that had caused her these problems? The applicant described the creditor as a “private loan company” which made “profits” from providing loans to people at “a very high interest rate.”

7. The applicant said that her children were in good health.

8. However, the applicant told the Tribunal that if she was to return to Cambodia, she would find it difficult to cope alone without the help of a male protector and being a single mother with three children. The applicant said her parents could not and did not have the resources to assist her and her children. She also told the Tribunal that she had little education (just completed year 12) and no skills which would allow her to find employment to provide for herself and her children.

9. The applicant told the Tribunal that she “was not sure what to do if she had to return to Cambodia”. In the applicant’s opinion, both she and her children had a settled life while in Australia – something that was not possible and is not possible in Cambodia – especially without the support and protection of a ‘male protector’.

   COUNTRY INFORMATION_ CAMBODIA_ Sex Trafficking_ Status of Women_ Employment opportunities and the availability of State Protection

   Sex Trafficking in Cambodia

10. 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:[8]

    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.

    [8] 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.

11. Recent studies indicate that Cambodia has become a destination for sex trafficking, with high levels of internal trafficking being experienced.[9] Women and children mostly experience sexual exploitation, with boys living in tourism destinations also being vulnerable.[10] Victims of trafficking endure unspeakable hardship, with physical violence, sexual abuse, harassment, threats, and coercion being common experiences for many trafficked person.[11]These victims are scarred for life, and will commonly suffer serious trauma, depression or self-harm.[12]

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

    [10] Ibid at xi

    [11] Ibid at ix

    [12] Ibid at ix

12. 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.[13] 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.

    [13] 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

13. 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.[14] 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

    [14] 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

14. 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.[15] Pre-marital sex is “against tradition”, with some stating it “angers the ancestors”.[16] 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.[17]

    [15] 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. 

    [16] Ibid

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

15. 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’.[18] Up until 2007, chbab srey was taught in schools and embedded in school curriculum.[19] Whilst chbab srey is no longer part of Cambodian school curriculum, it is considered an important piece of Khmer culture.[20] A report by the Cambodian NGO CEDAW Committee and the Cambodian Committee of Women has commented on chbab srey stating: [21]

    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.

    [18] Ibid

    [19] 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. 

    [20] 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. 

    [21] 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. 

16. Additionally, whilst gender-roles in Cambodian society have varied over time, women’s subservience to men is described as remaining by and large intact.[22] Women are unrepresented within executive branches of government, parliament, and civil service, in courts and the police force.[23] 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.[24]

    [22] 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. 

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

    [24] 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. 

17. Additional, whilst gender-roles in Cambodian society have varied over time, women’s subservience to men is described as remaining by and large intact.[25] Women are unrepresented within executive branches of government, parliament, and civil service, in courts and the police force.[26] 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.[27]

    Employment opportunities – Single mothers

    [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. 

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

    [27] 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. 

18. 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.

19. 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[28]. 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[29]. 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[30]

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

    [29] Ibid

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

    Is informal money lending/loan sharking common in Cambodia?

20. 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’.[31]

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

21. 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’.

22. 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’.[32]

    [32] 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

23. 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’.[33] 

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

24. 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’.[34]

    [34] ibid

25. 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’.[35]

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

26. Cambodia capped interest on microfinance loans to a maximum of 18 per cent per year in 2017.[36]

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

27. 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’.[37]

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

28. The report also indicates that ‘[a]ccess to formal sources of credit has improved affordability through reduced interest rates and longer repayment periods’.[38] 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’.[39]

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

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

29. 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.[40] 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’.[41]

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

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

30. 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,[42] 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’.[43]

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

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

31. 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’.[44] 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’.[45] 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.[46] 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’.[47] 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’.[48]

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

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

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

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

    [48] ‘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

1. 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’.[49]

   [49] ‘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

2. 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’.[50]

   [50] 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

3. 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’.[51]

   [51] 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?

4. 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.

5. 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.[52]

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

6. 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.[53]

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

7. 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’.[54]

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

8. 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’.[55]

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

9. 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.[56]

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

10. 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[57] reports of such incidents’.[58] 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’.[59] 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’.

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

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

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

11. 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’.[60] 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’.[61]

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

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

12. 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’.[62]

    [62] ‘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?

13. 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.

14. 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’.[63]

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

15. 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’.[64]

    [64] ‘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

16. 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’.[65]

    [65] ‘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

17. 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’.[66]

    [66] 'Driven Out: One Village’s Experience w ith 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

18. There is ‘weak law enforcement’, the courts are ‘prone to corruption and bribery’, and ‘the degree of judicial protection is very low’.[67]

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

19. The judiciary is marred by corruption and a lack of independence. 'Cambodian courts are subordinate to the executive,[68] and there is political interference in court proceedings.[69] 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.

    [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.2, 20200901182854

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

20. Meagre salaries contributed to “survival corruption” among low -level public servants, while a culture of impunity enabled corruption to flourish among senior officials.[70] 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’.[71]

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

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

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

21. 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’.

22. 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.[72]

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

23. 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.[73]

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

24. 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.[74]

    [74] ‘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

25. 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.[75] 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.

    [75] 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.

26. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan[76] Foster J stated that:[77]

    “…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.”

    [76] (1996) 40 ALD 220

    [77] see, at [482]

27. 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,[78] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[79]

    “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.”

    [78] (1996) 185 CLR 259

    [79] At [25]

28. 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.” [80]

    [80] [1997] FCA 1198 accessed 15 February 2017.

29. Nevertheless, as Burchett J counselled,[81]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.

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

30. 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.”[82] 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.[83] 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.[84] 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.[85] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[86]

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

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

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

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

    [86] (1999) 197 CLR 510 at [191].

    “…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.”

100.   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.

101.   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 [87] 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.[88]

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

[88] 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.

102.   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.[89]

[89] 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

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

104. The certificate applied in to particular folios [67] to [69] 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.

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

106.   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.

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

108.   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.[90]

[90] 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.[91]

[91] 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”.[92]

[92] 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.

109.   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.

110. 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 [67-69] of the File number [number] and were properly claimed as legally privileged and that their disclosure would be contrary to the public interest.

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

112.   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?

113.   The applicant, is a [age]-year-old woman, born in Cambodia. She is partnered with an Australian citizen, and together they have three children and one child belonging to the applicant from another relationship. The applicant currently resides in the family home which is shared with her younger sister and her [number] children.

114.   The applicant claimed that as the eldest child in the family, she was expected to shoulder the weight of her parents’ financial struggles, shielding her siblings from any consequences which surfaced from these issues. Despite her intending to further her education, the family’s pressure for money in order to survive caused her to cut short her education and to enter the local workforce in order to support the family. The applicant told the Tribunal that as the eldest child of the family, she was engaged in discussions with her parents concerning the family’s ongoing financial pressures, and through a long exposure (from a very young age) to these pressures, the applicant took on to herself the expectation to shoulder the responsibilities of maintaining the household which involved ‘caring for siblings’ and ‘contributing to the family’s finances’.

115.   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 younger 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 the applicant (and to a lesser extent her younger 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 stress 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.

116.   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.

117.   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 [48-57] and [58-93] 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.

118.   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.

119.   Also, 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 involved 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.

120.   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).

121.   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.’

122.   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.

123.   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, 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 women 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.

124.   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:[93]

[93] 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…”

125.   Recent studies indicate that Cambodia has become a destination for sex trafficking, with high levels of internal trafficking being experienced.[94] Women and children mostly experience sexual exploitation, with boys living in tourism destinations also being vulnerable.[95] Victims of trafficking endure unspeakable hardship, with physical violence, sexual abuse, harassment, threats, and coercion being common experiences for many trafficked person.[96]These victims are scarred for life, and will commonly suffer serious trauma, depression or self-harm.[97]

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

[95] Ibid at xi

[96] Ibid at ix

[97] Ibid at ix

126.   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.[98] 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.

[98] 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

127.   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.[99] Sex trafficking is evidently prevalent in Cambodia, with vulnerable populations, including women and children, continuing to be at risk.

[99] 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

128.   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.

129.   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.’[100]

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

130.   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.[101] Pre-marital sex is “against tradition”, with some stating it “angers the ancestors”.[102] 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.[103]

[101] 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. 

[102] Ibid

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

131.   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’.[104] Up until 2007, chbab srey was taught in schools and embedded in school curriculum.[105] Whilst chbab srey is no longer part of Cambodian school curriculum, it is considered an important piece of Khmer culture.[106] A report by the Cambodian NGO CEDAW Committee and the Cambodian Committee of Women has commented on chbab srey stating: [107]

[104] Ibid

[105] 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. 

[106] 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. 

[107] 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.

132.   Additionally, whilst gender-roles in Cambodian society have varied over time, women’s subservience to men is described as remaining by and large intact.[108] Women are unrepresented within executive branches of government, parliament, and civil service, in courts and the police force.[109] 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.[110]

[108] 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. 

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

[110] 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. 

133.   Also, whilst gender-roles in Cambodian society have varied over time, women’s subservience to men is described as remaining by and large intact.[111] Women are unrepresented within executive branches of government, parliament, and civil service, in courts and the police force.[112] 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.[113]

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

[113] 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. 

134.   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, will experience these challenges and added to her difficult circumstances would be the social stigma and discrimination within her local community. Put 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 [57]) 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.[114] 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.[115] 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 provided 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[116] 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.’[117] Overall, the Tribunal accepts, that the applicant is a mother of three sons and has never been married. The prospects of the applicant upon her return to Cambodia and securing employment in a 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.

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

[115] Ibid

[116] 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.

[117] Ibid

135.   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.[118]

[118] 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.

136.   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

137.   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.

138.   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.

139.   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

140.   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

141. 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.

…

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.

…

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.

…

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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