1722120 (Refugee)

Case [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 14th 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…

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Details
AGLC
1722120 (Refugee) [2023] AATA 4830
Case
[2023] AATA 4830
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of a Cambodian national seeking a protection visa in Australia. The applicant had initially arrived in Australia in 2011 under an alias and lodged a protection visa application in that identity, which was later found to be invalid. She subsequently lodged a second application, asserting her true identity and claiming to have arrived on a forged passport. The Department of Home Affairs was satisfied with her claimed identity, and the Tribunal accepted this finding for the purposes of assessing her protection claims concerning Cambodia. The Tribunal also determined that the applicant did not have a right to enter or reside in any country other than Cambodia, meaning section 36(3) of the Act did not apply.

The central legal issue before the Tribunal was whether Australia owed protection obligations to the applicant. This involved assessing her claims in light of the country information for Cambodia, including potential risks such as debt bondage and forced prostitution, and considering whether she would constitute a particular social group, specifically a single woman at risk of sex trafficking. The Tribunal was also required to consider the availability of state protection in Cambodia and the applicant's capacity to subsist and access basic services.

The Tribunal concluded that the matter should be remitted for reconsideration. While the applicant's identity and nationality as Cambodian were established, and it was confirmed she had no right to reside elsewhere, the Tribunal's reasoning indicates that the substantive protection claims were not fully determined or adequately assessed in the initial decision. The Tribunal noted that it had taken into account relevant guidelines and country information. The specific reasons for remittal are not detailed in the provided text, but the outcome suggests that further consideration of the applicant's claims regarding her fear of harm in Cambodia was necessary.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. Country of Nationality and Identity The applicant has provided the following evidence of her identity, nationality and citizenship:§Cambodian ID card with English translation§Cambodian extract of birth with English translation The applicant arrived in Australia [in] 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. 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. 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] The Tribunal concedes that the applicant has provided sufficient evidence of her identity which is consistent with their narrative and biometrics on the Department’s record. Therefore, for the reasons provided above, and for the purposes of this assessment, the Tribunal finds the applicant’s identity is as is claimed and that for the purposes of assessing and determining her claims for the purposes of section 36(2)(a) and 36(2)(aa) is Cambodia. Protection available in another country assessed The Tribunal finds, on the evidence before it, that the applicant does not have a right to enter or to reside in a country other than Cambodia. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant. Department File accessed by the Tribunal The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with her application to review. Background – the Applicant’s migration and visa history

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The 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 The applicant has provided the following evidence of her identity, nationality and citizenship:§Cambodian ID card with English translation§Cambodian extract of birth with English translation The applicant arrived in Australia [in] 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. 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. 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] The Tribunal concedes that the applicant has provided sufficient evidence of her identity which is consistent with their narrative and biometrics on the Department’s record. Therefore, for the reasons provided above, and for the purposes of this assessment, the Tribunal finds the applicant’s identity is as is claimed and that for the purposes of assessing and determining her claims for the purposes of section 36(2)(a) and 36(2)(aa) is Cambodia. Protection available in another country assessed The Tribunal finds, on the evidence before it, that the applicant does not have a right to enter or to reside in a country other than Cambodia. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant. Department File accessed by the Tribunal The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with her application to review. Background – the Applicant’s migration and visa history 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