2007632 (Refugee)

[2022] AATA 2619

2007632 (Refugee) [2022] AATA 2619 (24 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007632

COUNTRY OF REFERENCE:                   Cambodia

MEMBER:Scott Clarey

DATE:24 June 2022

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 Act1958 (Cth).

Statement made on 24 June 2022 at 2:20pm

CATCHWORDS

REFUGEE – Protection Visa – Cambodia – ethnically Teochao-Chinese – religion – Buddhist faith – political opinion – active supporter of the SRP – ongoing support of the Cambodian National Rescue Party and Sam Rainsy – young Australian citizen children with special needs – married to a foreign female divorcee – applicant has a well-founded fear of persecution – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5H, 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 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 Home Affairs on 7 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The [applicant], who is a citizen of Cambodia, applied for the visa under review on 6 May 2015. The delegate refused to grant the visa on 7 April 2020 on the basis that the delegate was not satisfied that [Mr A] was owed protection in Australia.  On 28 April 2020, [Mr A] applied to the Tribunal for the review of this decision.

3. On the basis of the copy of [Mr A]’s Cambodian passport provided to the Department, I accept that he is a citizen of Cambodia and that his identity is as he claims it to be.  I accept that Cambodia is [Mr A]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.

4. I note that the process for hearing this case suffered from significant delays, including due to the multiple (and prolonged) lockdowns and restrictions imposed in Victoria by the State government related to the COVID-19 pandemic over the last two years and due to repeated requests from the applicant for scheduled hearings to be postponed for health reasons. Due to the complexity and sensitivity of the matters raised by this case, the particular circumstances of [Mr A] and his expressed wish not to have the case heard remotely, this case was not deemed appropriate to be progressed through remote hearings, and that in-person hearings were required. I note that for extended periods over the last two years (and often at very short notice) the Tribunal was unable to hold in‑person hearings due to the COVID-19 restrictions that were imposed by the State government of Victoria. I note also that multiple scheduled hearings were cancelled/postponed at the applicant’s request for various valid reasons.

5. [Mr A] appeared before the Tribunal on 9 June 2022 to give evidence and present arguments.  The Tribunal was assisted by an interpreter in the Khmer and English languages.

6. [Mr A] is a [age]-year old male who was born in [Kampong] Cham, Cambodia on [date]. [Mr A] arrived in Australia on [date] June 2009, having departed Cambodia legally, on a Tourist Class TR Subclass 676 visa granted on 21 May 2009 (with a number of conditions including 8503 [no further stay] condition) valid until [date] July 2009. In May 2014, [Mr A] married an Australian woman, [Ms B], in Victoria. The couple are still married and have three Australian children together, [Master C] (born in [year]), [Master D] (born in [year]) and [Master E] (born [year]). [Ms B] was previously married (and divorced) and has four children from previous relationships that [Mr A] is the stepfather of. I note that according to various medical reports submitted to the Tribunal, two of the seven children have [special needs] and require specialist medical care and support. I note that in 2015, [Mr A] requested twice to have condition 8503 waived from his Subclass 676 visa, but both requests were denied. He again requested waiver of the 8503 condition in May 2020, and this was approved in October 2020. [Mr A] was previously self-employed in Cambodia, running his own [shop] in Phnom Penh. I accept these details to be true.

7. The issues in this review are whether [Mr A] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Cambodia, there is a real risk he will suffer significant harm.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

   9.    [Mr A] set out his claims for protection in his application form as follows:

   Q89:  I am seeking protection in Australia so that I do not have to return to:

   A:Cambodia.

   Q90:  Why did you leave that country/those countries?

   A:I was in a political party that oppose with the current government. The current government don’t want anyone to stand up and oppose them. If you do so hard you will loss your life.

   Q91:  What do you think will happen to you if you return to that country/those countries?

   A:My wife and I so are so worry about my safety. My wife and I don’t want this separation. I am worry that I will be in danger and will not get to see my child and my wife.

   Q92:  Did you experience harm in that country/those countries?

   A:Yes. Yes I will.

   Q93:  Did you seek help within the country/those countries after the harm?

   A:    No

   Q94:Did you move, or try to move, to another part of that country/those countries to seek safety?

   A:    Yes

   Q95:Do you think you will be harmed or mistreated if you return to that country/those countries?

   A:Yes

   Q96:Do you think the authorities of that country/those countries can and will protect you if you go back?

   A:No

   they don’t about their own people life.

   Q97:  Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed?

   A:No

9. I note that on 17 February 2020, [Mr A] attended an interview conducted by the Department to discuss his claims for protection.

   Evidence before the Tribunal

10. In addition to a comprehensive legal submission (dated 2 July 2021), I note that a significant amount of new information was provided to the Tribunal by [Mr A]’s representative prior to the Tribunal hearing on 9 June 2022. I note that most of this evidence was new information that had not previously been provided to the Tribunal or the Department. This new evidence included:

DATE	SUBMISSION DESCRIPTION
[February] 2020	Statement from Victoria Police
[April] 2020	Incident letter from Victoria Police
27 February 2021	Screenshot of text messages
15 June 2021	Letter from [Mr F]
15 June 2021	Letter from [a] College
12 June 2021	Letter from [a named doctor]
15 June 2021	Letter from [a named doctor]
11 June 2021	Letter from [a named doctor]
15 June 2021	Statutory Declaration of applicant
15 June 2021	Statutory Declaration of [Ms B]
[2021]	[Ms B]’s new passport
15 June 2021	Statutory Declaration of [Ms G]
15 June 2021	Statutory Declaration of [Mr H]
10 June 2021	Witness statement of [Mr I]
Jan-Apr 2021	[Mr A]’s joint bank account statements
Aug 2020- Feb 2021	[Ms B]’s mortgage statement
4 November 2020	Cognitive assessment for [Master C]
26 April 2021	Medical report from [a named doctor] regarding [Master C]
14 January 2020	Medical report [regarding] [Master C]
1 May 2021	[NDIS] Plan Letter
Date unknown	News excerpt ‘Cambodian-Australians welcome Kem Ley’s widow’
28 February 2018	News excerpt from Phnom Penh Post
14 March 2018	News excerpt from ABC Radio
1 March 2018	News excerpt from ABC
3 June 2021	News article from Radio Free Asia
16 June 2021	News article from Radio Free Asia
Various	[social media] post of Cambodian Australians protesting
3 July 2021	Representatives’ submissions
3 July 2021	[Mr A] Statement of Instruction
3 July 2021	[Ms B] further Statutory Declaration
3 July 2021	[Ms G] further Statutory Declaration
10 August 2007	Court Documents of [Mr I]’s arbitrary arrest (translated)
16 July 2014	Centrelink Income Statement
Various	Images of family celebrating x 2
22 October 2021	Statutory Declaration of [Mr J]
25 August 2021	Statutory Declaration of [Ms B]
22 October 2021	Screenshots of family fundraising
30 August 2021	[Article]
13 July 2021	HRW Report on Cambodia
13 July 2021	Freedom House report on Cambodia
27 October 2021	World Justice Rule of Law Rankings
13 July 1905	Radio Free Asia news article
20 October 2021	BBC report on [special needs] Cambodian children
21 September 2021	Photographs of [Mr A] in community
15 May 2022	Photograph of [Mr A] injured
6 September 2015	Screenshots of Chinese New Year
Undated, 2019	[Mr A]’s payslips
April-May-June 2022	[Mr A]’s and [Ms B]’s bank statement

1. I note the following evidence submitted to the Tribunal in support of [Mr A]’s claims to be an anti-CPP/pro SRP-CNRP activist:

   ·In a letter (dated [June] 2022), [Mr J] [stated] that [Mr A] is an SRP (Sam Rainsy Party) /CNRP supporter and assisted the party in organising election rallies, including transporting protestors/supporters to and from rallies. [Mr J] claimed that [Mr A] has been an active participant in the SRP/CNRP movement in Victoria including being involved in rallies in Melbourne, where effigies of Prime Minister Hun Sen were burned at the temple. [Mr J] claimed that [Mr A] has provided financial support for SRP/CNRP through fundraising activities.

   ·In a letter (dated [June] 2022), [Mr F], monk at [a] Monastery, Melbourne stated that [Mr A] has been supporting human rights and freedom of expression and democracy in Cambodia. Mr [F] stated that the monastery has been seen as an endorsement of CNRP because the monastery facilities have been used to conduct party ceremonies, seminars, meetings and rallies for the CNRP. He said the monastery site has also been used for the burning of effigies of Prime Minister Hun Sen as part of protest actions. Mr [F] stated that [Mr A]’s wife’s parents and family are also active members of the temple. He said that [Mr A] was introduced to the monastery through his wife in April 2014, and [Mr A] and his wife have attended various Cambodian cultural and traditional functions and performed fundraising. He said that [Mr A] has told him about his support for the CNRP. The letter stated:

   While the temple has been transparent of delivering service to all members of political backgrounds supporting human rights freedom of expression and democracy in Cambodia, the monastery has been seen as an endorsement of Cambodian National Rescue Party (CNRP) because CNRP in Australia has used our Hall to conduct their party ceremonies, seminars, meetings and rallies and burned effigy of Hun Sen which upset him so much that the Prime Minister Hun Sen pronounced and ordered his agents to follow protesters to their homes and to harm them. He has also ordered his agents to follow them all the way back to Cambodia and to hurt them there as an accident. That pronouncement made many Cambodian Australians scared and traumatised.

   ·In a Statutory Declaration (dated 15 June 2022), [Mr H] (a friend of [Mr A]’s) stated that [Mr A] had used his ([social media] account to share his support of the CNRP. Mr [H] stated that he shared anti-CPP interests with [Mr A]. He stated that he and [Mr A] attended rallies together to support the CNRP. He claimed that [Mr A] kept a low profile and did not want photos of him being taken for fear he would be recognised by CPP members.

   ·In a witness statement (dated 10 June 2021) [Mr I] stated that he had witnessed [Mr A] and his wife sharing anti-CPP articles through [social media]. [Mr I] stated that [Mr A] was assaulted by four men in Cambodia and attacked in Melbourne because of [Mr A]’s ongoing support of the CNRP and Sam Rainsy.

   • In a Statutory Declaration (dated 30 July 2021) [Ms G] stated [Mr A] is a supporter of the SRP when in Cambodia, and supported the SRP and CNRP after arriving in Australia. She stated that [Mr A]’s wife’s family are all CNRP supporters. She stated the family all attended forums and fundraising events in support of the SRP/CNRP, especially at the temple.

   ·In Statutory Declarations (dated 3 July 2021 and 15 June 2021), [Ms B] ([Mr A]’s wife) stated [Mr A] has been an active supporter of the SRP since 2007 until the party merged to form the CNRP. She claimed that together they support CNRP rallies, forums and engage in fundraising activities, especially at the temple. [Ms B] stated that in 2009 four people made threats to [Mr A] because they knew him to be an active supporter of the SRP, that was opposed to Prime Minister Hun Sen. [Ms B] stated that [Mr A] was assaulted in his shop in Phnom Penh (that resulted in a broken wrist) and threats were made to him, by CPP supporters.  [Ms B] stated that [Mr A] was attacked at a Chinese New Year function in 2021 and that the assailant was a CPP agent operating in Australia. She claimed that [Mr A] would be recognised as a CNRP supporter from overseas.

2. I note that in his legal submission (dated 20 April 2022), [Mr A]’s representative stated the following summary of his client’s claims:

   [Mr A] fears that if he were to return to Cambodia, he will be seriously harmed and persecuted due to political affiliation with Sam Rainsy Party (SRP), now known as Cambodian National Rescue Party (CNRP) and his Teochao Chinese Khmer ethnicity and as the eldest man of the family who married with a female divorcee with previous children. [Mr A] and his family will be ostracised and discriminated against, even his own parents and siblings in Cambodia.

   It is argued that the Cambodian authorities will not protect him and his Australian citizen families especially his young Australian citizen children with [healthl] conditions (please refer to medical report and its assessments for detailed evidence). [Mr A] believes an agent of Cambodian government authorities including their political party, Cambodian People’s Party (CPP) will seriously harm him and his Australian citizen families. Currently the CPP is in government in Cambodia and is a sole longest-ruling political party for over 40 years. CPP derived from the grassroots of the Marxist-Leninist communism ideology.

   It is submitted that [Mr A]’s campaigns made him a target to his opponents. He was threatened and hurt because of his involvement with SRP/CNRP and its movement. He thoroughly explained at the interview in February 2009 during the Chinese New Year festival; he was assaulted and tortured by a group of four people at his shop. He was hospitalised and traumatised (please refer to Family Medical Doctor Report for detailed evidence). [Mr A] claims that they threatened him and would hurt him again and arrest and put him in jail if he continued supporting his political party. As [Mr A] had shown at the interview on 17 February, his left wrist was dislocated while his right wrist was broken and still hurt (please refer to Family Medical Doctor’s report for details).

3. At the Tribunal hearing on 9 June 2022, I discussed at length with [Mr A] various aspects of his claims and specific details of the issues he claimed to have faced in Cambodia. I note that [Mr A] gave oral evidence that was highly consistent with his previous accounts of these claims and issues, and also the written submissions that have been made by him and on his behalf. [Mr A] told the Tribunal that he was born and raised in Phnom Penh, Cambodia’s capital. He said that his family is ethnically Chinese (Teochao) and he has one brother and one sister. He said that he is of the Buddhist faith. [Mr A] said when he was growing up his parents owned a [business], which he later worked in and eventually took over from his parents. He finished his formal schooling in [a year]. [Mr A] said that he was no longer in contact with his family in Cambodia because they did not approve of his relationship with his current wife, because she is a divorced woman with four children.

4. I discussed [Mr A]’s family situation with him. [Mr A] confirmed that he was married to his current wife, [Ms B], in Victoria in May 2014. This was his first and only marriage, and he has no children from previous relationships. [Ms B] is an Australian National who was previously married and divorced. She has four children from that relationship. [Mr A] and [Ms B] have three children of their own, [Master C], [Master D] and [Master E]. I note that the Tribunal has before it various documents (including a marriage certificate and birth certificates) confirming all of this information. [Mr A] and [Ms B] have seven children within their household ([Mr A]’s three biological children and four stepchildren), two of whom have special needs and require specialist care.

5. I asked [Mr A] why he had decided to leave Cambodia in June 2009 and come to Australia. He said that he was active in opposition politics in Cambodia and a member of the SRP. He said that he had been persecuted for his political affiliations and beliefs, and that on one occasion, prior to him leaving Cambodia, thugs affiliated with the ruling CPP came to his shop, vandalised it and physically assaulted him. He said that after this violent attack his parents helped him organise visitor visas to Australia and he escaped, fearing for his safety.

6. When I asked [Mr A] why he was the target of such an attack, he said it was because he had been actively involved with the election campaign. He said that he became involved with the SRP because he was vehemently opposed to the policies of Prime Minister Hun Sen and the CPP, which he viewed as corrupt and overly influenced by foreign actors. He said he had become involved in 2005, when he first became a party member, through friends, and had gradually increased his party-related activity to the point where he was actively involved in and helping to organise elements of the SRP’s election campaign in 2008. When asked the nature of this involvement, he said that he had primarily helped to organise SRP election rallies that involved him driving groups of SRP supporters to and from rallies in Phnom Penh and surrounding villages. He began doing this in 2007 and did it up until the election in 2008. He said he also contributed financially to the SRP’s activities. He said that he would use his own money and his own truck for these rally activities, and he would pay for petrol and supply meals and related items to the supporters he was transporting. He said that he would transport groups of roughly 15 supporters to the rallies in a number of named provinces.

7. I asked [Mr A] details about the claimed incident where he was visited by supporters of the governing CPP prior to the election in 2008 and told to cease his political activities. He said that initially four men came to his shop and told him to stop driving his truck and supporting the SRP and issued a threat that they would destroy his shop and break his bones. He said that he did not cease his activities and the men returned on the second occasion where they followed through on their threats, trashing his store and physically assaulting [Mr A], where he claimed they broke his arm. He said that it was after this assault, when he left hospital and returned to his parents’ home that they began looking into options for him to come to Australia.

1. I asked [Mr A] about his claimed political activities since arriving in Australia. [Mr A] stated that he continued to support the SRP while in Australia, including by sharing messages through a [social media] account and engaging in various opposition-related activities and events, including fundraising, through his local temple. [Mr A] spoke at length about an incident in September 2015 where he claims he was violently assaulted at a party by a man named [Mr K], who he claimed was an agent of the CPP in Australia. He said that what began as a relatively innocent political conversation at the party with [Mr K], quickly escalated into a heated argument and the men came to blows. He said that [Mr K] made several threats toward [Mr A], including that he would organise to have him deported and that he would kill his wife and children.

2. I note that there is various evidence to support the claim that [Mr A] was involved in a violent altercation with a man named [Mr K] at the time he claims. For example a statement from Victoria Police (dated [April] 2015) confirmed that [Mr A] was the victim of a violent assault in September 2015 that was perpetrated by a man named [Mr K], who was subsequently arrested, charged and found guilty of intentionally causing injury, recklessly causing injury and unlawful assault. As I discussed with [Mr A] and his representative at the hearing, while I accept that [Mr A] was involved in a violent incident in which he was assaulted, there was little evidence before the Tribunal that this incident was politically motivated. In response to this, [Mr A]’s wife [Ms B], stated that she had witnessed this altercation and confirmed [Mr A]’s version of events. She said that she and [Mr A] had arrived at the party and [Mr K] was already there. She said that [Mr A] had mentioned that he was a supporter of the SRP and that’s when [Mr K] started threatening [Mr A], telling him that he has connections and that he could get [Mr A] deported back to Cambodia where he would face consequences for his anti-government political views. [Ms B] stated that [Mr K] suddenly became violent and assaulted her husband without notice. [Ms B] said that she also received threatening phone calls from [Mr K] although they had not heard from [Mr K] since 2015. She said that although it was not explicitly reflected in the police reports provided to the Tribunal, that a police officer who she had spoken to on the phone had confirmed that politics was a motive in the attack.

3. I asked [Mr A] what his current level of political involvement was now. He stated that he still supported the SRP, he attended meetings with other supporters, and he helped oversee the group with a man he named and described as its Chairman. He said that they hold approximately 10 meetings per year, some of which are in-person in spring while some of which are online. He said that he also contributed money to the opposition group in Australia. As noted above, there is significant evidence before the Tribunal from third parties, including members and supporters of the CNRP in Australia, stating that [Mr A] is an active participant in Cambodian opposition politics in Australia.

4. I asked [Mr A] what he thought would happen if he were to return to Cambodia in the foreseeable future. He stated that the government would probably kill him, and that he feared for his life given his history supporting the opposition and given what had happened to other political dissidents in Cambodia.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

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

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

   Complementary protection criterion

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    RELEVANT COUNTRY INFORMATION

11. I note that there is no DFAT country information report for Cambodia. Various other sources of country information note that the Cambodian Government harshly represses political dissent within the country and that political dissidents and members of opposition parties can face arbitrary arrest, detention and violent attacks from the government and its supporters. In November 2017, the Supreme Court of Cambodia, Cambodia’s highest court, forcibly dissolved the major opposition party, the CNRP. This effectively turned Cambodia into a one-party state.[1] As recent as June 2022 and according to Human Rights Watch, Cambodia convicted 51 political opponents, most of whom were supporters and members of the former CNRP.[2]

    [1] United States Department of State 2021, ‘2021 Country Reports on Human Rights Practices’: Cambodia - United States Department of State accessed 17 June 2022.

    [2] Human Rights Watch 2022, ‘Cambodia: 51 Opposition Politicians Convicted in Mass Trial’ Cambodia: 51 Opposition Politicians Convicted in Mass Trial | Human Rights Watch (hrw.org) accessed 17 June 2022.

12. In a June 2022 report, Amnesty International outlined the repressive political climate in Cambodia, particularly with the situation in regard to freedom of association and speech:

    Members of the banned opposition party, the CNRP, continued to face arbitrary arrests and prosecutions as well as violent attacks by unidentified assailants. In early January, mass trials of approximately 150 CNRP senior leaders and other party members and supporters began. Many of the charges related to the planned return of self-exiled CNRP leaders to Cambodia in November 2019, which was characterized as a coup attempt by the authorities. On 1 March, nine senior party leaders were found guilty in their absence of “attempting to commit a felony” and “attack” under Articles 27 and 451 respectively of Cambodia’s Criminal Code. Party co-founder Sam Rainsy was sentenced to 25 years’ imprisonment and others to between 20 and 22 years.

    On 9 November, Veourn Veasna and Voeung Samnang, both CNRP supporters and UNHCR-recognized refugees, were forcibly returned to Cambodia from Thailand and detained on charges of incitement and Covid-19 law violations. Hun Sen had previously ordered Voeurn Veasna’s arrest after he published a poem criticizing him. The two men remained in pretrial detention at the end of the year.

    The authorities failed to investigate physical attacks against CNRP members and supporters. In April, a 16-year-old CNRP supporter was assaulted by two men and hospitalized with a fractured skull. The attackers were not found. On 24 June, the same supporter was arrested and charged with incitement and insulting public officials in connection with comments made on the messaging app Telegram that were critical of the government. He was sentenced to eight months in prison and released in November after serving four and a half months. The supporter’s father had been arrested in 2020 and was among dozens of CNRP members facing trial.

13. The Amnesty International report further noted the repression of dissent and of those who engage in anti-government activities:

    Authorities used the judicial system to unjustly arrest, prosecute and imprison human rights defenders and environmental activists. In August, trade union leader Rong Chhun was convicted of “incitement to commit a felony or cause social unrest” and sentenced to two years’ imprisonment. The trial followed public statements he made alleging community land loss resulting from the demarcation of the Cambodia-Viet Nam border. Opposition activists Sar Kanika and Ton Nimol were convicted of incitement and sentenced to 20 months’ imprisonment after calling for Rong Chhun’s release. Ten others who also protested against Rong Chhun’s imprisonment were arrested and charged with incitement.

    Environmental activists affiliated with the campaign group Mother Nature Cambodia (MNC) faced judicial harassment throughout the year. In May, five MNC activists were convicted of incitement and sentenced to between 18 and 20 months’ imprisonment (two were convicted in their absence). They had been arrested after planning a protest march against government plans to privatize, fill and develop the largest remaining lake in the capital, Phnom Penh. In June, three other MNC activists were charged variously with “plotting” and “insulting the King” (lèse majesté), along with one other, again charged in their absence. They had been arrested while documenting river pollution levels in Phnom Penh. The MNC members were among 26 activists released in mid-November who also included Rong Chhun and all those detained for protesting against his arrest. All were released subject to various conditions including limits to their rights to freedom of movement, association and peaceful assembly.[3]

    [3] Ibid.

14. In a 2021 report, The United States Department of State[4] outlined the recent arbitrary arrests (and related charges) of political dissidents in Cambodia, including those who support opposition political parties:

    The government significantly increased the use of arbitrary charges of “incitement” over the last two years, using the law to charge criminally political opposition leaders and their supporters, labor and environmental activists, and citizens who make politically sensitive comments, including social media posts about the border with Vietnam, the government’s COVID-19 response, relations with China, and unflattering comments about senior government officials. The law criminalizes the “direct incitement to commit a felony or disturb social security,” a vague standard commonly used to suppress and punish peaceful political speech and dissent. By the end of 2020, the government reportedly filed at least 200 cases of incitement, up from approximately 40 in 2019 and no more than 20 in previous years. This included a mass filing of incitement charges against approximately 120 individuals in November 2020, most of whom were associated with the opposition CNRP. There was no report that anyone had ever been acquitted of an incitement charge; individuals with a criminal record may not hold public office until the king grants clemency after a request from the prime minister.

    [4] Above n 1.

15. Further, the US State Department noted reports of surveillance and threats of violence to Cambodian dissidents and government critics residing abroad:

    … Cambodian refugees hiding in Bangkok reported escalating levels of surveillance and threats by unidentified persons whom they believed were under the direction of Cambodian government officials. In October the prime minister publicly called for a UNHCR-registered CNRP activist living in Thailand to be “eliminated” and urged police to search for him, including searching “abroad.” In November the government of Thailand refouled three Cambodian opposition activists who were UNHCR-registered refugees. They were immediately arrested upon arrival in Cambodia.

    Some government critics and opposition politicians were in self-imposed foreign exile. In some cases the government subsequently took steps to block exiles’ return, including revoking their Cambodian passports.[5]

    [5] Ibid.

34.    I note that in 2018, the Prime Minister of Cambodia Hun Sen issued threats of violence to those who opposed his presence whilst on a visit to Australia, stating to those who protested and burned an effigy of him would be followed home and beaten.[6] In response to Prime Minister Hun Sen’s remarks, Shadow Treasurer Chris Bowen stated to Parliament: ‘Now the Cambodian community is rightly outraged and frankly … scared. We will stand with the Cambodian-Australian community and their right to engage in peaceful protest’.[7] In remarks reported by the Sydney Morning Herald, Prime Minister Hun Sen stated ‘I am determined. If they burn an effigy of me I will pursue them to their homes and beat them-up…I tell you in advance. I want to make clear. If they have a right to burn me I have the right to go to their homes and seize them’.[8] The Phnom Penh Post[9] quoted an Australian official who stated that Australia’s Ambassador to Cambodia had made representations to the Cambodian government about the comments:

[6] Y Sineat and E Handley, Phnom Penh Post 2018 ‘Cambodian-Australians welcome Kem Ley’s widow, burn effigies of Hun Sen’; L Cochrane, Australian Broadcasting Corporation 2018, ‘Cambodian PM facing backlash over threat to Australian protesters; Australian Broadcasting Corporation 2018, ‘Cambodian Australians defiant in face of beating threat’ accessed 17 June 2022.

[7] Liam Cochrane, ‘Cambodian PM facing backlash over threat to Australian protesters’, ABC News Australia, 1 March 2018. Accessed at:

[8] Lindsay Murdoch, ‘Cambodia PM Hun Sen threatens to beat up protestors on Australia visit’, The Sydney Morning Herald, 22 February 2018. Accessed at:

[9] Mech Dara, Erin Handley and Andrew Nachemson, ‘Australia to address Hun Sen’s threats at ASEAN Summit’, The Phnom Penh Post, 5 March 2018. Accessed at:

Australian Ambassador Angela Corcoran had met with Cambodian Foreign Minister Prak Sokhonn to discuss the issue...It’s been made clear that the threats are violent, that there’s a freedom of protest, freedom of expression in Australia and that threats on Australian soil are not acceptable to the Australian government…What is deeply concerning about this is this seems to be the second occasion in which activities in Australia whether in relation to the opposition leader or protesters, is being used either, in one case, arrest, or in this case, public threats, by the Cambodian leadership.

1. Country information suggests that Cambodia’s authoritarian government does not tolerate political dissent. For example in 2021, Cambodian authorities opened fire on a peaceful protest in regards to a land dispute.[10] In another instance also in 2021, a music artist was sentenced to 18 months in prison for songs that were critical of the government.[11] Another political opposition activist was slashed to death with machetes during a festival.[12] Human Rights Watch stated that more than 60 political prisoners include opposition activists, land rights activists, journalists and those who were critical of the government on social media.[13]

   [10] Radio Free Asia 2021, ‘Cambodian Villager Shot by Security Forces in Plantation Land Dispute’ accessed 17 June 2022.

   [11] Radio Free Asia 2021, ‘Cambodian Court Upholds 18-Month Sentence for Rapper who Dissed Government’ accessed 17 June 2022.

   [12] Radio Free Asia 2021, ‘Cambodian opposition activist slashed to death during festival’ Cambodian opposition activist slashed to death during festival — Radio Free Asia (rfa.org) accessed 17 June 2022.

   [13] Human Rights Watch 2021, ‘Cambodia: Political Prisoner Release Just a Start’ Cambodia: Political Prisoner Releases Just a Start | Human Rights Watch (hrw.org) accessed 17 June 2022.

2. A report by Freedom House in 2020 stated that the Prime Minister Hun Sen ‘used the police and armed forces as a tool of repression’ and ‘the military has stood firmly behind Hun Sen and his crackdown on opposition’. The Prime Minister uses armed forces to ‘harass and abuse CPP opponents’.[14]

   [14] Freedom House 2020, ‘Freedom In The World 2020 Cambodia’ Cambodia: Freedom in the World 2020 Country Report | Freedom House accessed 17 June 2020.

3. A 2019 United Nations Human Rights Council report[15] on the human rights situation in Cambodia outlined actions taken by the government against those who oppose it:

   [15] United Nations Human Rights Council 2019, ‘Compilation on Cambodia Report of the United Nations High Commissioner for Human Rights’ G1833725.pdf (un.org) accessed 17 June 2022.

   The Secretary-General stated that a number of judicial actions taken against the opposition and civil society organizations reflected structural deficiencies in the law enforcement and judicial institutions that had long been highlighted by human rights mechanisms, including the independence of the judiciary, lack of procedural guarantees resulting in overreliance on pretrial detention, weak evidentiary bases for convictions, and impunity. A growing number of “Facebook cases” were being tracked in which postings on social media were being used as evidence of the commission of crimes.

4. The same report also mentioned the targeted killing of political opposition and those being charged with ‘vaguely formulated offences’:

   The Human Rights Committee was concerned about reports of killings of journalists, human rights defenders and other civil society actors. It was also concerned about reports of harassment and intimidation of journalists, human rights defenders, trade union workers, land and environmental activists and other civil society actors, and members of the political opposition, who continued to be prosecuted for their activities, in particular through the criminalization of defamation and other vaguely formulated offences.[16]

   [16] Ibid.

   Findings and reasons

1. I accept that [Mr A] is a Cambodian man of ethnic Chinese (Teochao) descent who is of the Buddhist faith. I accept that he was born and raised in Phnom Penh and his family still live there. I accept that [Mr A] married an Australian woman, [Ms B], in 2014 and that [Mr A] is the father of three Australian-born children with her, in addition to being a stepfather to [Ms B]’s four other children from a previous marriage. I accept that [Mr A] was actively involved in opposition politics in Cambodia, including as a member of the SRP (later the CNRP). I accept that he was involved in various activities related to opposition politics in Cambodia, including acting as an organiser and driver for opposition political rallies in the lead up to the 2008 Cambodian election. I accept that [Mr A] was threatened and assaulted in 2009, and had his [shop] vandalised, by men acting on behalf of the government, in relation to his political activity in Cambodia. I accept that [Mr A] continued his opposition-related political activities after arriving in Australia, including by attending political meetings, fundraising and protest activities including at [a] Buddhist temple in Melbourne. I accept that these activities included the burning of effigies of Cambodian Prime Minister Hun Sen at the temple. I accept that [Mr A] was involved in a heated dispute at a party in Melbourne in 2015 that resulted in him being violently assaulted by a man named [Mr K] who was later charged by police and found guilty. While I have doubts about the political motivations for this assault, I accept the oral evidence given by [Mr A]’s wife [Ms B] that she witnessed/overheard [Mr K] making politically-based threats towards [Mr A] at the party immediately prior to the violent assault.

2. As discussed above, I held some concerns regarding some of the evidence presented by [Mr A] in relation to his case and claims. As outlined above, I discussed these and other concerns with [Mr A] and his representative at both hearings and I’m satisfied with the responses provided.

3. Having considered the available country information and [Mr A]’s specific circumstances, particularly (as detailed above) the information relating to the Cambodian government’s harsh repression of political expression and dissent in Cambodia, I am satisfied that in these circumstances [Mr A] would face a real chance of serious harm from the Cambodian government – including groups and/or individuals acting on its behalf – if he were to return to his home area of Phnom Penh for reasons relating to his (actual or imputed) political opinions, namely that of people who hold pro opposition and/or anti-government political beliefs due to his political affiliations and/or activities including with the SRP/CNRP, as required by s 5J(4)(b) of the Act in that it would involve a threat to his life or liberty or significant physical harassment or ill‑treatment. I also consider that [Mr A]’s (actual or imputed) political opinions are the essential and significant reason for the persecution he fears, as required by s 5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it would be deliberate or intentional and involve his selective harassment for reasons of his (actual or imputed) political opinions. I accept that [Mr A]’s profile in Cambodia, if he were to return there, would be augmented by the fact that he is ethnically Teochao-Chinese, married to a foreign female divorcee, has three Australian-born children, and is someone who has lived abroad for over a decade.

4. Pursuant to s 5J(6), I am satisfied that the reasons [Mr A] faces a well-founded fear of persecution relate to behaviours and/or conduct that was not engaged in by [Mr A] in Australia for the purpose of strengthening his claim to be a refugee.

5. Having considered the available country information and [Mr A]’s particular circumstances, I am not satisfied the State is willing to offer effective protection measures to [Mr A], nor am I satisfied [Mr A] would be able to access effective protection measures if he returned to Cambodia now or in the reasonably foreseeable future.

6. I am satisfied that [Mr A], as a citizen of Cambodia, has the right to relocate within Cambodia. I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[17]

   [17] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at [443]; per Whitlam J at [453].

7. Having considered the available country information and [Mr A]’s particular circumstances, I do not consider it would be reasonable to expect [Mr A] to relocate himself to another part of Cambodia where he has no family or social supports to escape the real chance of serious harm he faces in his home area. I also accept that the real chance of harm he faces extends to all areas of the country.

8. Considering [Mr A]’s particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance of serious harm from the Cambodian government – including groups and/or individuals acting on its behalf – if he were to return to his home area of Phnom Penh for reasons relating to his (actual or imputed) political opinions, namely that of people who hold pro opposition and/or anti-government political beliefs due to his political affiliations and/or activities, including with the SRP/CNRP, if he returned to his home in Phnom Penh, Cambodia. I am satisfied that the real chance of serious harm [Mr A] will face if he returned to his home area will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find that the essential and significant reason for the serious harm [Mr A] faces is for reasons relating to his (actual or imputed) political opinions.

9. For the reasons given above, I am satisfied that [Mr A] is a person in respect of whom Australia has protection obligations. Therefore he satisfies the criterion set out in s 36(2)(a).

   DECISION

10. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

    Scott Clarey
    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.

    …