1806986 (Refugee)

1806986 (Refugee) [2024] AATA 2583 (12 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1806986

COUNTRY OF REFERENCE: Cambodia
MEMBER:Nicole Burns
DATE:12 April 2024
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.

Statement made on 12 April 2024 at 9:31am

CATCHWORDS
REFUGEE – protection visa – Cambodia – political opinion – Sam Rainsy party member – protest activities in Cambodia and Australia – fear of detention – police visits – exit procedures – passport renewal – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Cambodia, applied for the visa on 22 September 2015.
The applicant appeared before the Tribunal on 21 February 2024 to give evidence and present arguments. The hearing was combined with the applicant’s partner’s case ([Partner A], constituted to the same member),[1] as requested by their representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
[1] AAT No. 2310171.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The issues in this review are whether there is a real chance that, if she returns to Cambodia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Cambodia, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
As there is no DFAT report for Cambodia, the Tribunal has considered country information from other sources when assessing whether the applicant’s fears of persecution on return to Cambodia are well founded.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is [an age]-year-old woman originally from [City 1] city, the capital of [City 1] province in Cambodia. She came to Australia [in] January 2010 holding a tourist visa (along with her father who returned to Cambodia around three months later) and has remained here.
According to information contained on the Departmental file about the applicant’s background (including work history, education and family), and as confirmed at hearing, the applicant finished high school in Cambodia and thereafter worked in several jobs including [deleted]. Apart from a year living in Phnom Penh in around 2008, the applicant always lived in her home village in Cambodia. She never married but had a relationship with an Australian citizen ([Partner B])[2] in Australia from February 2014, who is the father of her [Australian citizen] [children], born in Australia in [specified years]. [Partner B] died in 2020. He had another family who were unaware of his relationship with the applicant.
[2] In the protection visa application form the applicant lists [Partner B] as her husband, however, she confirmed at hearing they were never married.
The applicant began a relationship with [Partner A] in early 2021. Presently they live together (along with her [children] and others) in a shared house in Melbourne. The applicant has worked in a factory in Australia. Her partner works full time in [another] factory.
In Cambodia the applicant’s elderly parents live in her home village along with her [specified family members]. Another sister lives in Phnom Penh. The applicant told the Tribunal at hearing she had another sister who died in a traffic accident in Phnom Penh in April 2022.
Protection claims and evidence
In summary the applicant claims to fear serious harm at the hands of the ruling Cambodian People’s Party (CPP) because of her support for a Cambodian opposition party in Cambodia and due to her political activities in Australia. In addition, she fears serious harm because her partner has been politically active in support of the opposition in Cambodia and Australia.
The applicant’s claims were initially set out in a brief typed statement dated 18 September 2015 provided to the Department. In it she claimed, in summary to have:
·Started working as [an occupation 1] at [specified agencies] in [City 1] in 2003.
·Joined the Sam Rainsy party when she saw there was no justice in Cambodian society; the authorities were corrupt, and there was no freedom of speech.
·Helped the Sam Rainsy campaign during the election and protested against government oppression and dictatorship. As a result, she was ‘targeted by the police and secret service’.
·She escaped to [City 2] and was in hiding for a while but was pursued by these people.
·She had no choice but to move to Phnom Penh and apply for a visitor visa to escape persecution from the Cambodian authorities.
The delegate was not satisfied the applicant had (or would have) a profile on return to Cambodia that would result in her facing persecution there due to her alleged support of the Sam Rainsy party. The delegate notes the applicant was able to leave Cambodia without difficulties in 2010, and the fact there is no indication the authorities have continued pursuing her since that time, or that she has continued her political activism in Australia. They refused her protection visa application on 5 March 2018.
During the review stage the representative provided to the Tribunal a written submission dated 12 February 2024, a written statement (undated) – both of which primarily focus on the applicant’s partner’s case – and supporting documents, including:
·Country information from a variety of sources about the ill treatment and risks opposition supporters and activists face in Cambodia.
·A copy of a letter signed by [Official A], Cambodia National Rescue Party (CNRP) dated [in] February 2024. In it she states that the applicant and her partner have been devoted supporters of the CNRP and Candlelight Party (CLP) since 2012. She also states that given the increasingly dire political situation in Cambodia under the current government, which has committed serious human rights violations, there are genuine concerns that if they returned to Cambodia they would face certain arrest or more serious consequences for their political views against the Cambodian government.
·Copies of several photographs, and videos (through hyperlinks to videos uploaded on social media platforms, for example) relating to the applicant’s partner’s participation in anti-CPP protest activities in Australia, as well as evidence of her partner speaking out about the CPP online and in interviews with [News Source 1], among others, and of him posting critical comments on [deleted], and resultant warnings.
·The applicant (along with her partner and sometimes her children) is visibly present in some of these photographs, showing her attendance at various events. For example:
Ø At a [CNRP] [meeting] in Australia, [details deleted];
Ø At a meeting [in] January 2024, [in Melbourne] with others, where they planned a [demonstration] [in] 2024;
Ø As part of a group who visited [an MP], where they submitted a petition for him to urge Australia’s Prime Minister to put pressure on the Cambodian Prime Minister to restore democracy and human rights; and
Ø At a public forum about human rights and democracy in Cambodia, [in] 2024. The guests included [Official A].
·A copy of a letter from [Representative A], dated [in] February 2024, in which he states that:
Ø The applicant and her partner (‘[name variant][3]’) have attended meetings and protests against the former Cambodian Prime Minister Hun Sen and the current Prime Minister Hun Manet, along with their children. He describes them as ‘prominent protestors who are passionate about the serious human rights abuses taking place in Cambodia’. He adds that ‘[Partner A variant]’ also attends planning meetings and is active in the organisation of events.
Ø Any protester in Australia or another country who protests against Hun Sen or Hun Manet has been threatened by Hun Sen that they will be punished severely for their actions.
Ø He understands Hun Sen has people taking photographs of people at the protests and posts these in the airport in Cambodia to catch them on arrival.
Ø He understands that ‘[Partner A variant]’ was the subject of a direct threat by [a Cambodian official] on his [social media] page [in] February 2024 in which he said, ‘[deleted]’, implying he will be arrested or worse.
Ø If they were to return to Cambodia, he has grave concerns for their safety.
[3] This appears to be either a spelling mistake, or an alternative spelling of his name.
Also provided was a statutory declaration from the applicant dated 20 February 2024 in which she gives an update about her circumstances and extant fears if she has to return to Cambodia. She claims to fear being imprisoned and possibly harmed on return to Cambodia by the authorities because she has protested against the government in Cambodia and Australia. She is also concerned about who will take care of her children if she is imprisoned on return to Cambodia, noting they are Australian citizens whose father has died.
In his oral and written evidence to the Tribunal, the applicant’s partner, [Partner A], confirmed his relationship status with the applicant and said they have attended several protests together since their relationship began in early 2021.
In her oral evidence to the Tribunal, the applicant described her background, reasons for leaving Cambodia, political activities in Australia, current circumstances, and fears if she has to return to Cambodia, summarised below.
The applicant told the Tribunal that in Cambodia she used to participate in demonstrations against the then Prime Minister, Hun Sen and false election results, both before and after the general election in 2009. She thinks she attended four or five demonstrations, helping distribute pamphlets and drinks of water to other demonstrators in [City 1]. She did so because her family did not like Hun Sen. One of her sisters joined her.
The last demonstration the applicant attended in Cambodia was in late 2009.
The applicant said after each demonstration she and her sister had attended, police would visit their home and each time their father convinced the police that his daughters supported the CPP. The applicant said she and her sister were able to hide each time the police visited. She heard from her father after she left Cambodia that police came and asked why she and her sister supported the Sam Rainsy party. Her father told the police they had stopped and fully supported the CPP. The last time this happened was around a year after the applicant arrived in Australia.
The applicant said she was never a member of a political party in Cambodia. When asked why, then, she claimed in her application that she joined the Sam Rainsy party, the applicant clarified that she was a ‘normal supporter’ of the party but not a member. She supported their political platform by attending events and demonstrations.
The applicant told the Tribunal she has been politically active in Australia, attending protests against the regime in Cambodia. She began in 2012 when she attended an opposition party gathering at [Location 1] and continues to this day. She does so because she wants the corrupt government in Cambodia to stand down and she wants an opposition party to have a chance to lead the country. She said Hun Sen has spies in Australia who monitor people involved in protest activities here.
The applicant said her partner is very politically active in Australia and recently has helped [Representative A], organise protests. In a July 2023 protest he held an effigy of Hun Sen; she attended that protest as well, along with their children. She said she and her partner have attended several protests and other events together since the start of their relationship in early 2021.
In addition, the applicant said in February this year her partner was threatened directly by [a Cambodian official] after posting negative comments on his [social media] page.
CONSIDERATION OF CLAIMS AND EVIDENCE
Political activism in Cambodia
Considering the evidence before it, including the applicant’s oral evidence at hearing, the Tribunal makes the following findings about her past experiences in Cambodia relevant to her protection claims, and profile.
The applicant claims in Cambodia she supported the Sam Rainsy opposition party and attended four or five protests before and after the 2009 general election, along with her sister. She claims the police recognised her and her sister at the protests and visited her house each time afterward.
As noted at hearing, the Tribunal has several concerns with the applicant’s evidence in this regard, for the following reasons.
First, there were inconsistencies between the applicant’s evidence at the protection visa application stage and her oral evidence to the Tribunal in some key respects. For example, in her protection visa application (and accompanying statement) the applicant said she joined the Sam Rainsy party, was targeted by the police and secret service, and hid in [City 2] before moving to Phnom Penh. However, at hearing she said she was a supporter of the Sam Rainsy party only, not a member (and her evidence was vague about the kind of support given) and said she never moved to [City 2] or Phnom Penh after the demonstrations. To explain these inconsistencies, she said someone helped her complete the application form. However, she was unable to explain why her statement was different in these ways.
The applicant’s evidence about her sister joining her at the protests in Cambodia and being of adverse interest to the police there was also new.
Second, the applicant’s oral evidence about these matters was vague and not supported by country information in some respects. For example, she told the Tribunal she handed out pamphlets and water at demonstrations before and after the 2009 election – a total of four or five times – yet there were no general elections in Cambodia in 2009, the closest one occurring on 27 July 2008.[4] Whilst the applicant may have forgotten the date, given the passage of time, when combined with her vagueness about her alleged protest activities, this causes the Tribunal to doubt her involvement at all. For instance, she was also unable to state who organised the protests and made general statements about what was in the pamphlets she purportedly distributed, saying that they contained declarations against unfair elections.
[4] International Foundation for Electoral Systems, ElectionGuide, Kingdom of Cambodia, 27 July 2008, at >
Third, the Tribunal found the applicant’s stated motivations for being involved in the demonstrations fairly general and sweeping (for example, because she wanted to help the country and because her family did not like the prime minister). However, she was unable to provide any further details or explanations as to why she decided to protest then, for instance. When asked why she supported the Sam Rainsy party in Cambodia in the first place, the applicant told the Tribunal it was because she supported their political platform, and when asked to provide an example, referred to them proposing to increase [salaries] and stopping the government from confiscating land from poor people. However, she did not elaborate or provide any further details or context.
The applicant’s evidence at hearing about the police continuing to ask her father about her after she left Cambodia was also vague.
Fourth, the applicant’s knowledge of the Sam Rainsy party was limited, despite claiming to have supported the party in Cambodia, including by attending several protests around election times, and also to have continued her support (or of its subsequent party, the CNRP) in Australia, to date. For example, although she was able to identify Sam Rainsy as the president of the party at the time, and that the party continues (albeit with a different leader), she was unsure about the party’s status in Cambodia, despite it being banned in 2017[5], which the Tribunal would expect her to know about, given that this was such a significant event.
[5] Michael Lidauer, Heinrich Boll Stiftung, ‘Authoritarian elections in contemporary Southeast Asia – trajectories and policy options’, September 2023.

Fifth, aspects of the applicant’s evidence about her and her sister’s purported protest activity in Cambodia, and related attention from the police there, were internally inconsistent. For example, on the one hand she claimed each time the police visited their family home after the protests her father convinced them they were pro-CPP (and they left). Yet on the other hand they continued to protest – four or five times in total – against the CPP.
Sixth, the applicant’s ability to obtain a passport in Cambodia (which was renewed twice in Australia, the last time in August 2022) and leave the country without any problems indicates she was not of adverse interest to the Cambodian authorities at these times for her protest activity in Cambodia (or Australia).
The Tribunal also notes the significant delay between when the applicant arrived in Australia – after claiming to have been politically active in support of the opposition in Cambodia and being of interest to the police there as a result – and when she applied for protection. This casts doubt on her claimed experiences in Cambodia prior to leaving the country. At hearing, the applicant said it was soon after her arrival and she did not understand the criteria (for a protection visa). However, the Tribunal is not persuaded by this explanation given she applied around five years after her arrival here.
Given these concerns, the Tribunal does not accept the applicant was politically active at all in Cambodia. It does not accept she was a member or supporter of the Sam Rainsy party, or that she participated in protests against the CPP in 2008/2009 (or any time) leading up to and following the elections, or that the police visited her home as a result, including after she left Australia. The Tribunal does not accept she was targeted by the police and secret service. The Tribunal also does not accept the applicant’s claims that her sister was politically active in these ways, or that she also received adverse attention from the police in Cambodia as a result.
Accordingly, the Tribunal finds the applicant does not face a real chance of serious harm from the authorities in Cambodia, and CPP supporters more generally, on return there, due to any past support of the Sam Rainsy party, her involvement in protests and/or a lack of support for the CPP, nor in relation to her sister’s claimed political activity.
Political activism in Australia
The Tribunal has considered the applicant’s claims to have been politically active in Australia, including by regularly attending protests against the CPP, and in general by supporting opposition initiatives.
The Tribunal has concerns with her claims in this respect given that, for the reasons above, it does not accept she was politically active at all in Cambodia, which undermines her alleged motivation for being politically active here, at least initially. It also found her motivations stated at hearing for getting involved in Australia to be general. For example, she made sweeping statements about wanting an opposition party to come to power and for the corrupt government to step down, and also mentioned she was active in Cambodia. However, for the reasons above, the Tribunal does not accept her evidence in this regard.
The Tribunal also notes the applicant failed to mention she was politically active at the protection visa stage, despite claiming to have begun such activity in Australia in 2012. Her oral evidence about the circumstances that led to her becoming political active at this time was very vague.
Despite these concerns, the Tribunal does accept the applicant has been politically active in some respects in Australia, particularly recently, based on evidence provided including photographs of her attending protests and other events as noted. Her support for the CNRP was confirmed in letters from [Official A], although the Tribunal considers that she has exaggerated the applicant’s profile. Given the concerns raised earlier, including the fact the applicant failed to mention she was politically active at all in Australia when she applied for protection in 2015, the Tribunal does not accept she became active in Australia in 2012 as claimed (and indicated in [Official A’s] letter). It is of the view she has become politically active more recently, possibly around the time she met her partner (in early 2021) who has been prolific (and increasingly so) in terms of his involvement in activities against the CPP in Australia (and online).
The Tribunal also notes the letter provided by [Representative A] verifying the applicant (and her partner’s) involvement in political activities in Australia.
For these reasons, the Tribunal considers the applicant’s involvement in political activities over the past few years has been in large part to strengthen her claims to be a refugee. However, after having heard the applicant’s partner’s case it appears he (and the applicant) have become invested in trying to remove the CPP from power and support the opposition from abroad as their awareness about such issues has grown over time, as well as their connections and relationships with the diaspora community advocating for political change in Cambodia, which remains a de facto one-party state.
As such, despite some concerns with respect to the applicant’s motivations behind her activities in Australia, the Tribunal is satisfied she engaged in such conduct otherwise than for the purpose of strengthening her claim to be a refugee, and therefore has not disregarded that conduct as per s 5J(6) of the Act.
Well-founded fear of persecution in the future
Given these findings about the applicant’s past experiences in Cambodia, conduct in Australia (of herself and her partner), and her resultant profile, the Tribunal has gone on to consider if she faces a well-founded fear of persecution from the authorities for a refugee reason on return to Cambodia in the foreseeable future.
As noted, the representative’s submissions to the Tribunal – orally and in writing – primarily focus on the applicant’s partner’s political activities in Australia, threats that have ensued, and related risks on return to Cambodia. For reasons set out in that decision record, the Tribunal has accepted the applicant’s partner has such a profile through his protest activities (including online criticism of Hun Sen, and other outspokenness including through interviews with [News Source 1]) for the past 12 years in Australia – increasingly so - and that he faces a well-founded fear of persecution on return to Cambodia from the authorities there based on his actual (anti-CPP/pro-CNRP) political opinion.
In this case, the Tribunal accepts the applicant has been in a de facto relationship with [Partner A], since early 2021, and since that time has attended protests and other meetings in support of the Cambodian opposition here with him. Whilst she has a relatively low profile (and the Tribunal has some doubts as to whether she would be politically active at all on return to Cambodia), the Tribunal accepts her relationship with [Partner A], as well as her own political activities in Australia, put her at risk of facing a real chance of serious harm at the hands of the authorities in Cambodia on return.
In reaching this conclusion, the Tribunal has had regard to country information about the risks those who criticise the CPP face, as well as opposition members and supporters, in Cambodia, given that the CPP is intolerant of any form of criticism or perceived dissent, as follows[6].
[6] Which is the same country information relied on in [Partner A’s] case.
By way of context and background, the Tribunal notes the ruling CPP – in power since 1979 – dominates all levels of government from village and provincial council to the National Assembly.[7] In the 2018 national election, the CPP won all 125 National Assembly seats, in effect turning the country into a de facto one-party state, with a government regularly acting in an authoritarian manner.[8]
[7] U.S. Department of State, 2022 Country Reports on Human Rights Practices: Cambodia, March 20, 2023.
[8] U.S. Department of State, 2022 Country Reports on Human Rights Practices: Cambodia, March 20, 2023, Executive summary.
The CNRP was an opposition party banned in 2017 prior to the 2018 national elections. The CLP – the CNRP’s successor – was disqualified from running in the July 2023 general election on the grounds of a technicality, which was viewed as disproportionate and politically motivated.[9] The result of that election was a landslide victory for the CPP, which won 120 out of 125 seats[10].
[9] Michael Lidauer, Heinrich Boll Stiftung, ‘Authoritarian elections in contemporary Southeast Asia – trajectories and policy options’, September 2023.
[10] Sok Leang, Heinrich Boll Stiftung, ‘Cambodia’s National Election 2023: Pressure, Control and Legacy’, 24 August 2023.
There are reports of the authorities clamping down on the CLP (and other opposition supporters and government critics) in the lead up to the 2023 elections. The political environment included: banning exiled opposition leaders in absentia from running for office in the future; harassment, arrests and attacks on the opposition (including explicit threats of violence); and curtailment of freedom of expression, including online (and facilitating greater censorship and surveillance)[11].
[11] Freedom House, ‘Freedom on the net 2023 – Cambodia’, 4 October 2023; and Michael Lidauer, Heinrich Boll Stiftung, ‘Authoritarian elections in contemporary Southeast Asia – trajectories and policy options’, September 2023.
Human Rights Watch (HRW) in its 2024 world report noted that ahead of the 2023 national elections ‘surveillance, intimidation, judicial harassment, and violent attacks intensified against members of the political opposition, both inside and outside Cambodia’[12]. They stated:
In March and April 2023, Human Rights Watch interviewed four opposition party members who were assaulted in Phnom Penh. There were multiple similarities in the attacks carried out on the street by men in dark clothes and wrap-around motorcycle helmets on motorbikes using an extendable metal baton as a weapon. All the victims interviewed said they believe they were targeted because of their public participation in the activities of the opposition Candlelight Party.[13]
[12] Human Rights Watch World Report 2024, Human Rights Watch (HRW), 11 January 2024.
[13] Human Rights Watch World Report 2024, Human Rights Watch (HRW), 11 January 2024.
HRW also noted that during a speech given on 9 January 2023, Hun Sen warned the opposition not to criticise the CPP ahead of the elections and said defiance would be met with either punitive rulings by the courts (which are controlled by the CPP) or mob violence. In the months following, a number of opposition members were assaulted in Phnom Penh in broad daylight whilst others were convicted or arrested on politically motivated charges[14].
[14] Human Rights Watch World Report 2024, Human Rights Watch (HRW), 11 January 2024.
Such approaches are not new, and government critics, as well as members of civil society more broadly, face harassment and intimidation from the CPP, which is highly sensitive to criticism, including through misuse of the criminal justice system. Suppression of critics and activists by the government has taken many forms, including the use of security forces to disperse and subdue activities (accompanied by Prime Ministerial orders authorising them to ensure there will be no ‘colour revolution’ in Cambodia), and increasingly through legal means such as defamation laws to silence opponents. HRW reported on the use of ‘legal’ means to weaken opposition in Cambodia by the authorities, for example convictions of opposition politicians and activists in mass trials on unsubstantiated charges of ‘incitement’ and ‘conspiracy’ (in mid-2022), and the arrest of two former CNRP members in March 2023 for ‘insulting the monarchy’ on Facebook[15].
[15] Human Rights Watch, ‘Cambodia: Court Ruling Keeps Opposition Leader in Custody’, 31 January 2024; Amnesty International, 'Amnesty International Report 2021/22: The State of the World's Human Rights', 29 March 2022, p 112; and U. S. Department of State, 2022 Country Reports on Human Rights Practices: Cambodia, March 20, 2023.
In its 2024 Country Report on Cambodia, Bertelsmann Stiftung (BTI) states:
In recent years, activists from various independent NGOs have faced repeated repression, which has extended beyond threats and intimidation to include arrests and imprisonment.
…
Looking at everyday political life in Cambodia, one sometimes gets the impression that freedom of expression applies only to one person – Hun Sen. Otherwise, political restraint and self-censorship dominate public discussion, and often professional and private communications[16].
[16] Bertelsmann Stiftung, BTI 2024 Country Report – Cambodia. Gutersloh: Bertelsmann Stiftung, 2024.
Cambodians who are CNRP supporters and/or who have been critical of the government have been forcibly returned to Cambodia from neighbouring countries and arrested on return.[17]
[17] 'Amnesty International Report 2021/22: The State of the World's Human Rights', Amnesty International, 29 March 2022, p 112.
There are reports that opposition supporters and diaspora have experienced harassment and threats, including in Australia. For example, in March 2018 the widow of dissident Kem Ley was the target of a threatening letter, as were prominent Cambodian Australians active in the opposition movement, such as then Victorian MP Hong Lim.[18] In October 2018 Cambodian Australian community leaders in Melbourne reported that CPP members had increasingly subjected expatriate critics of the Cambodian government to death threats and intimidation.[19] Members of smaller opposition parties have also reportedly been targeted.[20]
[18] Radio Free Asia (RFA), ‘Widow of Slain Cambodian Government Critic Kem Ley is Granted Asylum in Australia’ 19 February 2018; and The Phnom Penh Post, ‘Australian police investigating death threat against Kem Ley's widow’, 22 March 2018.
[19] Australian Broadcasting Corporation (ABC), ‘Cambodian regime figures splash millions on Melbourne properties as death threats escalate’, 25 October 2018.
[20] Radio Free Asia (RFA), 'Arrest of Cambodian Political Party Chief Over Vietnam Border Claims Marks Second in Two Weeks', 14 August 2020.
The US Department of State reported that there were credible allegations of the government using violence or threats of violence against individuals in other countries, including to force their return to Cambodia.[21]
[21] U. S. Department of State, 2022 Country Reports on Human Rights Practices: Cambodia, March 20, 2023.
In February 2018 Prime Minister Hun Sen threatened to beat protesters who burned his photo during protests planned for his visit to Sydney for the ASEAN summit in March 2018.[22]
[22] The Australian, ‘Threats by Cambodia PM Hun Sen ‘won’t’ halt ASEAN protests’, 13 March 2018.
With respect to risks posed by being politically active online, in its 2022 human rights report on Cambodia, the US Department of State refers to credible reports that: government entities monitor online communications; the law gives the government legal authority to monitor all telephone conversations, text messages, email, social media activity and correspondence between individuals (without their consent or a warrant); and any opinions expressed in these exchanges that the government deemed to impinge on its definition of national security could result in a maximum of 15 years’ imprisonment.[23]
[23] U. S. Department of State, 2022 Country Reports on Human Rights Practices: Cambodia, March 20, 2023.
In its 2023 report about freedom on the net in Cambodia, Freedom House reported (in summary) that:
·Ahead of the July 2023 elections, Cambodian authorities arrested opposition members for their online activities and forced the closure of independent media outlets.
·Former members of the CNRP faced heightened monitoring, harassment and imprisonment for their online activities.
·Former CNRP members faced prison sentences of five to seven years for their activism, including for criticism of the government on social media, as mass trials continued ahead of the July 2023 elections.
·Journalists, activists and other internet users continued to face physical and online harassment for their online posts, with numerous journalists and activists arrested or threatened over their legitimate reporting.
·Prosecutions for online speech continued as the government targeted dissenting voices in the political opposition and among the general public, as well as human rights defenders and journalists.
·Individuals faced several charges, including defamation, insult of a public official, and incitement to commit a felony.
·Authorities continued to arrest and prosecute former CNRP members en masse for their online activities.
·Individuals are also subjected to criminal procedures when denouncing violations of free and fair election principles, corruption and irregularities on the part of officials.
·Internet users have faced arrests and convictions for their online activity.
·Private communications have been monitored and published online to discredit public figures in recent years. While members of the ruling CPP have been targeted, individuals affiliated with the CNRP have more often been affected.
·In a June 2023 Facebook livestream, after the coverage period, Hun Sen threatened political opponents with violence, stating that he would "gather CPP people to protest and beat you up” and send “gangsters to [your] house” if they did not choose the “legal system’”. Meta’s Oversight Board subsequently recommended Hun Sen’s accounts be temporarily suspended, in part for his amplification of violent threats.
·RFA reported that CPP supporters and government officials were encouraged by Hun Manet’s Cyber War Room to harass CSOs and critical media outlets via social media ahead of the July 2023 elections.
·Online harassment is increasingly common in Cambodia.[24]
[24] Freedom house, 'Freedom on the Net 2023 - Cambodia', 4 October 2023.
In July 2023, after the CPP won the election that excluded opposition, leader Hun Sen (since 1985) announced his resignation and handover of the prime ministership to his son, Hun Manet. However, he indicated that he would continue as president of the ruling CPP. Given this, and the fact he is still only 71, analysts consider little has (or will change) and that Hun Sen remains in practical control of what effectively remains a one-party state.
In addition, there are many powerful roles being occupied by Hun Sen and his progeny, in addition to Hun Manet now serving as Prime Minister, including:
·Lieutenant General Hun Manith (middle son) is chief of the defence ministry’s intelligence department.
·Hun Many (youngest son) is a new deputy prime minister, the minister for civil service and president of the CPP’s youth wing.
·Daughters Hun Mana and Hun Maly hold interests in several companies including Cambodia Electricity Private, which sells electricity to the government, as well as television, radio and newspaper outlets.
·Hun Mana’s husband, Dy Vichea, is deputy national police chief, and also one of many powerful party figures who hold commercial and residential assets in Australia.[25]
[25] The Conversation, ‘Cambodia’s new leader may sound like a reformer in Australia next week, but little has changed back home’, 29 February 2024.
In its 2024 report on Cambodia, BTI states that Hun Sen will probably retain his enormous influence even after he steps down as prime minister, noting that:
Since Hun Sen consolidated his power over the state, the security forces and the ruling CPP, there is not one relevant political decision-maker who holds a position within the regime against his will. There is nobody within the CPP who has ever publicly criticized Hun Sen during the last two decades. Hun Sen has created a political environment in which virtually all actors feel the necessity to bow to him. In practice, this gives him the opportunity to overrule any decision made by subordinates within the regime, and even to ignore existing laws and decrees. At the very least, Hun Sen has to respect the CPP’s internal patronage networks, although this is related more to the overall system than to specific individuals within. Consequently, only the bodies that Hun Sen uses as his major tools to govern and control the country are influential. This includes his personal bodyguard militia and several other security forces. However, in recent years, these forces have become less visible in daily politics[26].
[26] Bertelsmann Stiftung, BTI 2024 Country Report – Cambodia. Gutersloh: Bertelsmann Stiftung, 2024.

Given the ruling CPP’s intolerance of criticism and the risks opposition supporters and government critics face in Cambodia, as set out in the above country information, and the monitoring of diaspora protest activities (in person and online), the Tribunal considers it likely the applicant’s partner’s political activities in Australia will become known (if they are not already) on his return to Cambodia, and possibly the applicant’s by association. If so, country information indicates she faces a real chance of serious harm from the authorities there – who are intolerant of criticism and/or perceived opposition – as a result.
Accordingly, the Tribunal accepts that should she return to [City 1], now or in the foreseeable future, there is a real chance the applicant will face serious harm from the authorities due to her imputed and/or actual political opinion, as required by s 5J(4)(b) of the Act, in the form of a threat to her life or liberty or significant physical harassment or ill-treatment, for the purposes of s 5J(5)(a). The Tribunal finds the applicant’s actual or imputed (anti-CPP/pro-CNRP) political opinion is the essential and significant reason for the persecution she fears, as required by s 5J(4)(a). Additionally, it finds that the persecution she fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves her selective harassment for reason of her actual or imputed political opinion.
Given the harm the applicant fears from the authorities, which operate at a national level, the Tribunal is not satisfied that effective protection measures as per s 5LA are available to the applicant in [City 1] by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Cambodia for the purposes of s 5LA(2).
For the same reasons, the Tribunal is satisfied the real chance of persecution relates to all areas of Cambodia as required by s 5J(1)(c).
The Tribunal also finds that requiring the applicant to alter her political beliefs or conceal her true political beliefs (to avoid a real chance of persecution in Cambodia) is impermissible as per s 5J(3)(c)(iii) of the Act.
Accordingly, and for the reasons above, the Tribunal finds that the applicant faces a well‑founded fear of persecution from the authorities in Cambodia based on her imputed and/or actual (anti-CPP/pro-CNRP) political opinion if she returns there now or in the reasonably foreseeable future. The Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s 5J.
In considering whether she comes within the definition of a refugee, contained in s 5H, the Tribunal accepts that she is outside the country of her nationality and unable to return to it owing to her well‑founded fear of persecution. Therefore, she meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act. The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, the applicant is a refugee.
Given this finding, it is unnecessary for the Tribunal to consider whether the applicant faces a well-founded fear of persecution for the other reasons advanced or that arise in this case.
CONCLUSION
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nicole Burns
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.
…
36     Protection visas – criteria provided for by this Act
…
(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.
…

[2024] AATA 2583

12 April 2024

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