2009629 (Refugee)

2009629 (Refugee) [2024] AATA 434 (5 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sareth Souk (MARN: 1386983)
CASE NUMBER:  2009629
COUNTRY OF REFERENCE:                   Cambodia
MEMBER:Rosa Gagliardi
DATE:5 January 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 January 2024 at 9:27am
CATCHWORDS
REFUGEE – Protection Visa – Cambodia – actual / imputed political opinion – anti-Cambodian government – particular social group –crew members who desert foreign ships – crew members who do not complete the obligations of their contracts under foreign ships – account lacks specificity – lack of evidence of enrolment in training – delay in lodging application –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 June 2020 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 15 June 2016. The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Cambodia there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 7 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer (Kampuchean/Cambodian) and English languages.
The applicant was represented in relation to the review (post hearing).
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant was returned to Cambodia now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Cambodia, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s circumstances
Before engaging with the matter of whether the applicant meets the criteria for protection in Australia, the Tribunal makes several observations regarding the fact that this applicant through no fault of his own has fallen through the cracks in the system due to a lack of personal resources and difficulty negotiating the migration system. The applicant applied for this protection visa on 15 June 2016. On 4 June 2020 the Department found at first instance that the applicant was not owed protection. At this point as far as the Tribunal can see the applicant was represented in his protection matter but due to several factors the applicant became disconnected from the migration agent. It is unclear to the Tribunal whether the previous migration agent was aware that the applicant on [date] December 2018 married an Australian citizen and continues to be in that relationship at the present time (evidence of genuine and continuing relationship submitted).
The Tribunal notes that the applicant and his spouse have purchased two properties together and have now been married for 5 years – from any perspective this is a long-term spousal relationship. Furthermore, the applicant’s wife suffers, as evidenced by the medical information, from a [medical condition] and the applicant is her primary carer. Evidence has also been submitted that the applicant and his spouse face fertility issues due to their ages and that this is of serious concern to them.
The Tribunal is perplexed as to why the applicant was not encouraged to lodge a spouse visa when the Department refused his protection visa as at that time the applicant had been married for a lengthy period. Regardless, the applicant’s circumstances are such that now over time genuine compelling reasons have arisen to waive any impediment to the applicant lodging a spouse visa onshore to enable the applicant to remain with his Australian citizen wife to care for her while she undergoes various treatment for a serious illness.
The Tribunal is unaware as to whether the applicant has condition 8503 imposed on his Bridging visa. Indeed, it appears that his current migration agent is not aware either. Given the applicant’s inability to access appropriate advice in the past, and given the applicant’s wife’s circumstances, the Tribunal would urge that the applicant’s path to resolving his migration status is smoothed and fast tracked given he has faced uncertainty for almost 8 years.
At hearing the Tribunal impressed upon the applicant that it could not provide him with legal/migration advice and that it was imperative that he find a reputable migration agent or representative who can clarify to him his options were the protection visa application to fail. The applicant is now represented by an alternative migration agent but the success of any spousal visa application will fall on the extent to which the migration agent provides appropriate advice about any limitations on the applicant’s status and how to overcome those, and to lead the applicant to provide evidence according to the requirements of the regulations being, among other things, that the applicant and his spouse (also of Cambodian background) share their financial resources, are in a mutually exclusive relationship, that the relationship is genuine and continuing, and that they live together permanently or live apart only on a temporary basis.
If the applicant continues to be unclear about his options, then he and his migration agent need to speak to the Department who can arrange an interpreter to ensure the applicant is guided appropriately.
The Tribunal also made it clear to the applicant that he could not have an expectation that the Tribunal has any jurisdiction to review a spouse visa application (which has not been lodged) in lieu of a protection visa. In other words, despite how meritorious his application for a spouse visa might be, the Tribunal’s task before it is to assess his protection claims.
The Tribunal gave the applicant time to seek migration advice about how he wished to proceed and on 2 January 2024 he advised that he would like to progress his protection visa claims.
Protection claims at the time of application in 2016
In a submission (12 June 2016) to the Department the applicant’s then migration agent (he appears to have had several) enclosed the applicant’s Form 965. The migration agent summarised the applicant’s matter:
In summary, [the applicant, Mr A] alleges that after he completed a [course] at [Institute 1] part of his training involved being [employed] aboard a [Country 2 ship].
To this end, [Mr A] travelled from Phnom Penh to [Country 1] where he boarded the ship which took [Mr A] to several places around the world, [before] the ship made its way to [City 1], Australia. On arrival in Australia, [Mr A] was granted a [Visa] which expired the next day.
[Mr A] and his fellow countryman, Mr xxxx, were the only Cambodians amongst the [crew].
[Mr A] alleges that the situation aboard the [ship] became intolerable because the Cambodians were hated by the other members of the crew and the ship’s officers and captain. They were bullied, harassed and even threatened to be thrown overboard into the deep sea.
It is for this reason, that [Mr A] and Mr xx decided to desert the ship in [City 1] and not reboard when the ship left Australia.
[Mr A] alleges that because he abandoned the ship without completing his contract and [Institute 1] is a Government organisation, he would face persecution, a fine and a lengthy jail sentence, or worse, if he returned to Cambodia.
Apparently the police have been watching his house and making enquiries about his whereabouts.
[Mr A] submits that there is a high level of corruption within the Police force in Cambodia and that they would not protect him in any way as he has no money. I note that in 2013, Transparency International placed Cambodia as the most corrupt country of all ASEAN countries…
In his Form 866B the applicant was asked why he had left his home country, Cambodia. He responded, “Employed on [ship]”. Asked what he thought would happen to him if he returned to his country, the applicant wrote, “I would be thrown in jail or killed. This is what happens in Cambodia when you do something wrong like desert a ship. Because I left the ship without completing my contract, [Institute 1] had to close down so I am blamed for this and it is viewed as a serious offence in Cambodia. The authorities have already been making enquiries about my whereabouts”.
At question 93 the applicant was asked whether he tried to move to another part of the country to seek safety and he wrote “no” as government officials would still find him. It would not help at all.
At question 94 the applicant confirmed that he thought that he would be killed or harmed on return to his country. Asked to provide details about the harm he would suffer, including the persons who would be responsible for such harm, the applicant wrote, “Officials are currently looking for me in Cambodia. They have been seen watching my house”. Asked if the applicant thought the authorities of his country could protect him on return, the applicant stated, “no” as the government in Cambodia is corrupt and they would not help him.
The applicant expanded on his claims to the Department advancing that:
·he undertook a [course] at [Institute 1] in 2012.
·He travelled from Phnom Penh to [Country 1] where he boarded the ship with a [contract] to continue his studies in [Subject 1].
·He was instructed by the ship’s captain that he must work with the Chief of Day Work for three months, after which he would be an assistant to the [Position 1] where he would learn about [Subject 1].
·After three months, the [Position 1] told him to continue doing the same work [as he had done in the first three months].
·When he later asked again about changing his job role, the [Position 1] said he was not a genuine student and he had to continue doing the same work until the end of his contract.
·When the rest of the crew heard about this, they became dissatisfied with everything he did and ordered him to do heavy work beyond his capacity and without consideration to his health and safety.
·He believes this was racial discrimination. The other crew shouted, threatened, and ordered him to work without questioning, and they even said, “Do you want to die?” and he often heard the words “kill” or “throw him in the water”.
·When the ship docked, he was prevented from talking to anyone who came to the ship. He decided to leave the ship when it docked in Australia because he could not endure the ill-treatment any longer.
·[Institute 1] has closed because of him.
·The authorities in Cambodia have been making enquiries about his whereabouts and he fears he will be fined, jailed or killed if he returns to Cambodia because he left the [ship] without completing his contract.
The applicant also submitted a series of news articles:
·‘Author Receives Death Threat. A government critic in Cambodia fears for his life’,
7 August 2010. The article relates how the author of the book deemed critical of the government was in hiding after receiving an anonymous death threat, according to the opposition party with which he is linked. Concerns were expressed that confiscation of the book was a restriction on the freedom of speech.
·‘Cambodians flee Chinese ship citing abuse’, 31 August 2015. It is reported that four men returned to Cambodia after escaping from a Chinese ship docked in the Philippines and contacting the Cambodian Embassy in Manila. The seafarers claimed they had been abused, overworked, and underpaid on the ship. A fifth Cambodian escaped from the ship on August 13.
·‘PM’s bodyguards get one year for beating’, 28 May 2016. The article states that three members of the Prime Minister’s personal bodyguard unit were found guilty of aggravated intentional violence for savagely beating two opposition law makers but were handed suspended sentences that would see them walk free in less than six months.
·‘Cambodia cancels screening of film about murdered environmentalist Chut Wutty’, 29 April 2016, relating how the government has stopped the public screening of the documentary of the life and struggles of Chut Wutty who was killed in 2012 while exposing the activities of an illegal logging plantation.
·‘Cambodian Government attempts to silence dissent as legal war rages’, 17 May 2016. It is reported that the Prime Minister’s government and the ruling Cambodian People’s Party (CPP) are attempting to tighten their grip on dissent as a series of legal battles with opposition lawmakers and human rights officials wind their way through that nation’s court system.
·‘Cambodia’s ‘Black Monday’ Protests Enter Third Week’, 23 May 2016, relating to authorities in Cambodia’s capital Phnom Penh stepping up their crackdown on anti-government protests, clashing with villagers in the capital’s Boeung Kak Lake district, after ordering that so-called “Black Monday” campaigners obtain government permission before posting their views online.
·‘Even though I know my life is at risk, I still try to save the forest’, 18 April 2016, regarding human rights lawyer, Leng Ouch winning the world’s leading environmental award for his work defending Cambodia’s rainforest for 20 years.
·‘CPP newspaper pens article on Piseth Pilika’, 19 May 2016. This article refers to a CPP-aligned newspaper publishing and then quickly deleting an online article asking why there had never been arrests in the murders of starlets including Piseth Pilika – an alleged mistress of the Prime Minister Hun Sen, who a report in 1999 claimed was killed on his wife’s orders. The other stars were claimed to have been maimed by acid or paralysed by bullets shot at their necks, in cases also believed to be linked to affairs with high-ranking officials.
·‘Putting Cambodian corruption into context’, 28 May 2016. It is reported that Cambodia’s Anti-Corruption Unit (ACU) is doing two things quite effectively. The first is rigorously investigating opposition party leader Kem Sokha for extramarital dalliances and promises of gifts to his mistresses. The second is ensuring that the sons of Om Yentieng, the head of ACU, have secure jobs within the government. It is also reported that four minister who were charged anonymously with nepotism, misuse of funds, misuse of government vehicles and overpayment for purchased items have been cleared of all charges. The article explains how corruption is an inherent part of Cambodian society.
Hearing with the Tribunal
The applicant went to [City 2] from [City 1] and stayed at a temple where he undertook volunteer work. Later he started to make friends and was provided shelter and food by people connected to the temple. He met his current wife at the temple. She is an Australian citizen. The Tribunal asked why he had not applied for a spouse visa, and he stated that when he got to know her, he was uncertain she would even marry him because he was newly arrived and did not have anything.
Turning to the applicant’s protection claims the applicant stated he had a lot of fear in returning to Cambodia from the recruitment company that had provided him work. He had caused a lot of damage. The Tribunal queried how he had done this. He stated that they chose him as one of the first people to undertake the course and it was intended that if he was successful, they would recruit more students, but the project failed because of the applicant. The Tribunal sought clarification and the applicant explained that the recruitment company and the ships provided jobs, but given what the applicant did, the company could no longer trust the contractors or the labour hiring people to do the job. The students had already made payments and the company had to repay all the money to the students. Some students had cancelled their training as a result of his actions.

The Tribunal again asked the applicant to specify precisely how he directly caused the recruitment company to fail. He responded that because he refused to go back to Cambodia it meant he broke his contract. They wanted him as a test case to show how successful the programme was but because he refused to return to Cambodia there was no successful story to report. The applicant clarified that it was the recruitment company that was angry with him, and he confirmed the company was run in partnership with the [Country 2] and Cambodian governments. All the students withdrew their applications and cancelled their courses because of the applicant. The Tribunal attempted to try and gauge whether there was a recruitment company acting between [Institute 1] and the ship engaging the applicant, but the applicant stated he could not recall the exact name of the recruitment company, citing [name], indicating that [Institute 1] was the recruiting agent and there was no middle agency.
The applicant stated that the damage he caused entailed millions of dollars (US) so they would do anything to prevent him surviving in Cambodia and he would not be able to earn a livelihood there.
Asked to specify exactly why the applicant was in danger in Cambodia, the applicant stated that he had not completed his contract because he had had a lot of trouble with the co-workers and crew members, and they were not happy with the applicant. He had a lot of arguments with his co-workers. He heard them say “Do you want to live in the sea or on the land?”, they were meaning they wanted to kill him by throwing him into the sea. The applicant stated that he did not know why they did not like him, but it was reflected in their attitude towards him. He chose to escape to survive and sought protection to be alive. He did not want to be thrown into the sea.
The Tribunal asked whether apart from verbal abuse his superiors and co-workers harmed him in any way and the applicant stated they got him to do other roles that were not part of his job. When asked, he stated that he had completed the course at [Institute 1]. The applicant stated that he was the first Cambodian on board so that is why he might have experienced this discrimination.
The Tribunal put to the applicant country information indicating that the Cambodian government has taken complaints about mistreatment of maritime students on foreign vessels seriously.[1] The Tribunal asked the applicant why he had not reported the matter to the authorities in Cambodia to seek assistance given he was being mistreated. The applicant stated that he could not contact anyone. The Tribunal noted that the country information showed that he would have been supported by the government had he raised these matters with Cambodian officials. The applicant stated that he did not know how to get the government to intervene as he did not have a website or a telephone number to refer to.
[1]
The applicant stated that the government only acted decisively against abuse of crew after he experienced mistreatment. The Tribunal noted that the country information showed that the Cambodian government’s investigations into the abuse on Chinese ships occurred in 2015 at the same time as he was experiencing difficulties on the [Country 2] vessel he worked for. The applicant stated that he too had been underpaid significantly. He should have been paid US$800-1500 per month but got paid less than working as a[Occupation 1] in his previous job. He was attracted by the advertised salary promised and that is why he left his [Occupation 1]job.
The applicant stated that he borrowed money from his family to study at the Institute for his daily living expenses and he paid US$2,000 for the training fee.
The Tribunal queried what had occurred to [Institute 1] and the applicant stated that it was now closed. The Tribunal confirmed with the applicant that the Institute was also the recruiting company he had referred to and he stated, yes. The applicant stated that he was fearful of the school and the government as they were connected, and the government would not help him.
The Tribunal researched [Institute 1] online in front of the applicant. An Institute called [Institute 1 name variant] appeared to have a [social media] account [2], so the Tribunal surmised this Institute was still active (even though the Tribunal did not have access to the content). The applicant stated he was not sure if it was a different branch or was an Institute run by other people, or maybe it was run in a different location. The applicant stated that this could not have been the Institute he had studied at as he had not studied in Phnom Penh.
[2] [Source deleted].
The Tribunal asked whether perhaps the articles referring to the abuse of Cambodian crewmen in 2015 were seen by the applicant and he thought he would appropriate the events to himself to bolster his protection claims. He stated he was not aware of these news articles so that was not possible.
The Tribunal noted that the applicant told the Department that he had contracts with [the ship] on his phone that he would submit these to the Department. These were never received. The applicant stated that they kept the contracts, and he did not bring them with him. Further, the Tribunal asked whether the applicant had a graduation certificate, for example, showing he had completed a course at [Institute 1]. The applicant stated he had left that document with his sister who had been living in Phnom Penh. Later, however, she moved to the [border] and lost his documents. The Tribunal asked why she would lose such an important document and the applicant responded that she was living in a leaking home, and it got damaged, and his sister threw it out. The Tribunal noted that his livelihood depended on that document. The applicant conceded this, but his sister had made a mistake as she did not realise it was important.
The Tribunal referred to the period of ten months in which the applicant remained in Australia unlawfully prior to lodging his protection visa application. The Tribunal noted that the applicant spoke English and was living in a temple with others who would have been aware of his circumstances, so it was odd that he had not immediately articulated that he simply could not return to Cambodia on arriving in Australia. The applicant responded that during that ten months he did not do anything - he talked to people and was looking for people such as a lawyer to guide him. Not everyone would know how to help him, and a lot of people did not want to get involved because of his illegal status.
The applicant when asked, stated that he came to Canberra because there was a Buddhist festival and people he knew in [City 2] said they were going to Canberra, so he joined them. He was not allowed to work then but he could do some volunteer work. Currently he was working [in] Canberra.
The Tribunal recounted to the applicant his claims and asked him to identify if there was anything the Tribunal had understood incorrectly or needed to be addressed.
Essentially, the Tribunal understood that the applicant went to work on the [ship] as one of two Cambodian people and that he was treated very badly on that ship. He had been threatened to be thrown overboard and so he decided to escape when he came to Australia. But the applicant feared returning to Cambodia because he had dishonoured the Institute, and by implication, the Cambodia government. The Institute closed because of the applicant’s actions in not completing his course. The applicant confirmed this was the case. He stated that the high-ranking officers did not like him, and they put him to work in unsuitable conditions, asking him him to work on his own, undertaking heavy lifting and doing the work that would ordinarily require two people. He became stressed and unsafe when he was asked whether he wanted to be living in the sea or on the land.
The Tribunal attempted to clarify in what capacity the applicant was employed on the [ship]. He responded that he was on deck and his duties included [Position 1]. Below deck he was required to check machinery. The Tribunal observed that had the applicant been [performing that role] he would have had to acquire highly specialised maritime skills. The applicant stated that it sounded like an important job. He did this under supervision. He did not have a specific role because he worked with other students from other countries. He was a support person for different people, and they called on him to undertake any role.
The Tribunal asked the applicant what his contract stated his role would be on the [ship]. The applicant stated that he could not recall all the roles in the contract. The Tribunal noted that he had told the Department that he was an apprentice undertaking work experience, and could he explain what that meant. The applicant stated that he was an apprentice as reflected in his contract. There were two different parts to it. In the morning he was supposed to work, and, in the afternoon, he was supposed to be afforded an opportunity to do some study. But the applicant was put to work without any study. He did odd jobs such as cleaning and painting. He had a conversation with the Chief Officer and told him that he had not had a chance to do any study. The apprenticeship was supposed to last for about ten months. The applicant asked the Chief Officer why he was in the 7^th month and had yet to undertake any study. The Chief Officer told him he was there to work. The Tribunal noted that he had not told the Department that his problems on [ship] also involved being deprived of the chance to study. The applicant stated he just continued working and did not want to question anything.
The Tribunal put to the applicant that he told the Department that he was considered by those in charge on the ship “not a genuine student” and could he explain what that meant. He replied that he should have been doing work for three months but when he spoke to the Chief officer he was told to work – that he was not a student and was expected to work. He was treated badly as he was the newest coming in and they looked down on him. He was the lowest rung. They knew he was only being paid $US200 while other workers received $US800-as 1,000 and he was the lowest rank on the ship.
The Tribunal asked what the applicant thought his punishment would be on return to Cambodia. He stated that they would not let him do business. They would arrest him and torture and even kill him. They could stage a traffic accident given he had gone against the government.
The applicant stated that only his father lived in Cambodia and his siblings lived in [Country 3]. The Tribunal asked whether the authorities had harassed his father at all, and he responded that there were two incidents - they went to search for him, military officers with guns, and they asked his father, “Where is your son?” and why was he not returning home. Another incident involved a group of gangsters on motor bikes keeping their eyes on his sister’s house and that is why she moved away to [Country 3]. The Tribunal observed that it could have been just as likely that she moved to [Country 3] to be with her siblings. The applicant agreed because she did not feel safe in the city with her children. At least in [Country 3] she had other siblings.
The Tribunal noted that the applicant told the Department that he was required to pay compensation to the government and what did he mean by this. The applicant responded that they would seek compensation for damages caused by him and if he could not pay, he would be harmed. The Tribunal asked whether it was true that he would have to pay into the millions of dollars and he responded it was a huge amount and he would not be able to afford any of that. He stated that while the damage he caused ran into the millions, they would expect him to pay around US$10,000-50,000 but he could not afford to pay any amount.
After the hearing the applicant submitted a signed statement arguing that he could not return to Cambodia because:
·He has a genuine fear for his safety and personal security as the owner of the [Institute 1] who recruited him to work on the ship, sought his persecution because they blamed him and other crew members for causing their company to lose more than a million dollars and made their company bankrupt when he and his crew members jumped ship in [City 1] in 2015.
·The reason he and his crew members jumped ship in [City 1] in 2015 was because they were threatened, abused and mistreated as the maritime crew members. The captain and other [Country 2] crew members had threatened to kill them and throw their bodies into the sea. They were working and living in the ship in fear of being killed and their bodies thrown into the sea every day and every night, so they ha no choice but to jump ship when it docked in [City 1].
·When they were recruited to work on the ship, they were promised US$800-$1,500 per month, but the applicant was only paid $280 US dollars a month. The truth was he had only received US$200 dollars a month and the company told him that another $80 would be sent to his family directly in Cambodia. However, the applicant’s father in Cambodia told the applicant that he had received less that US$80 in the applicant’s account and his father was the only one who oversaw receipt of that money in Cambodia.
·Because the company had accused the applicant of causing it to lose more than $US 1 million, if he returns, they could arrest him upon his arrival, or kidnap him, kill him or cause a motor vehicle accident or he will face discrimination, or they will make him pay for their losses. Cases like these have occurred such as the assassinations of Dr Kem Ley, an outspoken analyst, a union leader, Chea Vichea, and environmentalist Chut Vutty.
FINDINGS AND REASONS
Nationality
From the information before it the Tribunal accepts that the applicant is a national of Cambodia and does not have a meaningful and legal right to enter and reside in any other country.
The applicant’s credibility
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
In this case, the applicant has made some high-level claims regarding [Institute 1] (the Institute), fearing that he cannot return to his country because the Institute has now closed because he did not complete his contract and abandoned his ship in Australia. The Institute had hoped that the applicant would be its first star student to encourage others to undertake the course, but due to his failure to go through with his contract many students did not pursue the program and the Institute was closed.
The applicant claims that his fear is compounded because he claims that the Institute exists because of an agreement between the [Country 2] and the Cambodian governments. The applicant has not honoured his contract and therefore the Cambodian government which is known to crack down on dissension or activity against it, will punish him by jailing him, attacking, kidnapping, fining, or even killing him. In addition, the applicant has claimed that he may have to pay up to US$50,000 in compensation to the government which he cannot pay (there is no amount he can pay) and if he does not make such a payment he will be tortured or killed, or an accident will be staged to get rid of him.
It is also claimed that on the [ship] he was abused by fellow workers and the higher-ranking officers who deprived him of studying, putting him to work in difficult circumstances and he was discriminated against because he was Cambodian. The applicant was also significantly underpaid by the high-ranking officers of the [Country 2] vessel.
The applicant has not, however, been able to provide what the Tribunal considers would be reasonable documentation to at least lead the Tribunal to accept that he studied at [Institute 1] and that he was engaged as a [Subject 1] or other student on the [ship]. The Tribunal has had regard to the applicant’s claims that his sister, for example, threw out his qualification from [Institute 1] but the Tribunal finds it difficult to accept this explanation as after having paid a significant sum to undertake the course, he would have ensured that the evidence of his training would have been kept secure and easily accessible.
In addition, it would be expected that the applicant would have some textbooks and other written material which set out the specifics of the course and the applicant’s grades in each of his subjects. The Tribunal has little detail about the name of the course/programme the applicant had undertaken.
The applicant also told the Department that he had images of his employment contracts with the [ship] on his phone and that he would submit these. When the Tribunal inquired as to why they had not materialised, the applicant stated that he never held them.
These matters are of concern of themselves as much of the information regarding whether the applicant studied at [Institute 1], how long he studied for, and the outcome, are not substantiated by the applicant. Furthermore, the Tribunal has no information about the terms of his contract with [ship] and whether he was indeed required to undertake studies while on the ship as well as undertake practical training, or whether he was hired simply as a crew hand.
There is also a minor discrepancy in the latest submission by the applicant stating that he had studied with [Institute 1 name variant] instead of [Institute 1]. However, the Tribunal considers it would be unreasonable to place any adverse weight on such a mischaracterisation as it could be a function of translation.
In addition, despite the Tribunal’s concerns about the limited documentation supporting the applicant’s claims, the Tribunal is prepared to accept that:
·the applicant studied at [Institute 1] and that such an Institute has existed at some point.
·the applicant was working in some capacity on [ship] and that he was maltreated on that ship and was discriminated because of his nationality by higher-ranking officers and other crew members.

Unfortunately, given the remote nature of the work on vessels [3] and the vulnerability of other workers in industries where labour might be “invisible”, for example, in kitchens globally, exploitation of workers continues, and employers are somehow able to evade their obligations toward staff. As such, the Tribunal is also prepared to accept that the applicant’s fate on the [ship] involved exploitation and threats to throw him overboard, even though no such physical threats were ever actioned.
[3] See ‘Ships, Slaves and Competition’, International Commission on Shipping, Inquiry into Ship Safety, 38290_NEATCO_ICONS COVER (seafarersrights.org).
The applicant claims that the owners of the [ship] were [Country 2 nationals], and the Tribunal is also prepared to accept this matter even on the basis of little information provided by the applicant. Under the United Nations Convention on the Law of the Sea, ships are required to sail under the flag of one State only, save in exceptional circumstances as provided for in international treaties or in the Convention itself and every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.[4] As such, it can be inferred that the applicant was in dispute with the [Country 2] authorities over his treatment on the [ship]. As [Country 2] is not the applicant’s country of nationality and in any event, he would not be returning to that country, the Tribunal cannot assess these claims against Cambodia, the applicant’s home country. In seeking redress the country information shows that the Cambodian government would have been open to assisting him.
[4] The United Nations Convention on the Convention on the Law of the Sea, Part VII, High Seas, Section 1, PREAMBLE TO THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA.
The applicant has attempted, however, to draw a nexus between [Institute 1] and the Cambodian and [Country 2] governments to put forward claims under s.5J of the Migration Act, that is, that the Cambodian government will persecute him by various means: attacking; kidnapping; jailing him for a lengthy period; fining him; killing him and staging an accident because the applicant did not complete his contract and because of the collapse of [Institute 1], which closed directly because of the applicant’s desertion of the [ship]. The applicant also claims that he is viewed as a dissident because of the Cambodian government’s involvement in the Institute which collapsed due to the applicant and him not having completed the terms of his contract. The applicant is thus claiming that he fears persecution on account of his:
·political opinion and imputed political opinion (anti-Cambodian government);
·membership of a particular social group (crew members who desert foreign ships)
·member of a particular social group; (crew members who do not complete the obligations of their contracts under foreign ships); and
·membership of a particular social group (Cambodian crew members who have studied at the Cambodian government connected [Institute 1] who do not fulfil their obligations on foreign ships).
The Tribunal finds based on the information before it, that there never was any connection between the applicant’s claims and s.5J because the Tribunal finds the applicant’s central claim that he and possibly others single-handedly caused the closure of [Institute 1] as far-fetched and lacking in substantiation and the Tribunal rejects this claim outright. Having rejected this critical claim, it follows that the Tribunal also rejects claims that the applicant is wanted by the Cambodian government, gangsters or any other state or non-state actors in retribution because he failed to complete his contract. Consequently, the Tribunal also does not accept that the applicant or his father or siblings or anyone else in his family were being watched or pursued by any state or non-state actors on account of the applicant’s claimed political or imputed political opinion or for reasons of his membership of particular social groups as described above. Nor does the Tribunal accept that the applicant has any sort of debt with the Cambodian government or any other related institute or any other character in relation to having brought down [Institute 1].
It is not for the Tribunal to make his case, but the applicant has provided no information that the Institute which the Tribunal accepts might have been partially or fully subsided by the government of Cambodia, has any interest in the applicant because of his actions in deserting the [ship] or that he owes money to the government or anyone else on account of his actions.
The applicant’s claims about the closure of [Institute 1] at hearing were vague and not set in time. The applicant could only repeat that he was a test case in terms of being the first person they wanted to showcase for the (unspecified) program of studies at the Institute to attract an influx of students and to set off its success as a centre of maritime learning.
Moreover, the information regarding what the program undertaken by the applicant was specifically, is general in nature and the Tribunal does not have any information before it that would confirm that the applicant was playing a key historical role in the viability of the Institute. The Tribunal has no information before it, for example, to show when the Institute was established and when during the Institute’s establishment, the applicant was chosen to be the advertising representative to display the benefits of studying there. There is no country information to support the applicant’s contentions in this regard and had such dramatic events occurred as historical events, the Tribunal would have expected that the applicant could provide country information which would point to the applicant having played a pivotal role in such a momentous catastrophe as the collapse of an entire [training Institute].
The applicant’s account of students being owed significant amounts after the applicant deserted [ship] is vague and his account lacks specificity. The applicant has not been able to explain in a realistic way how due to his actions in deserting his ship a raft of students would lose confidence in [Institute 1], causing it to fail financially and causing the government to be accordingly infuriated with him and that as a result the Cambodian government will continue to pursue him indefinitely. The Tribunal finds this narrative far-fetched and rejects that it occurred.
If the applicant owes money to the government, then the Tribunal would have expected that such a demand would have been made to the applicant in writing. No such evidence has been submitted. The applicant simply speculates that he would owe the Cambodian government or the Institute money because he caused [Institute 1] to fail – a claim which the Tribunal has rejected.
The Tribunal also found the applicant’s evidence that he was training to be a [Subject 1] officer far-fetched, and the Tribunal does not accept this claim. To [perform such a role] whether a pleasure or commercial craft would involve specialised skills and were not the sort of skills he would be able to pick up under someone’s supervision on the vessel. The Tribunal finds that the applicant’s role on the ship was most likely as a crewman and that he was required to do a variety of jobs. This matter goes to the applicant’s credibility and why the Tribunal rejects that the applicant had any high-profile role on the [ship] such that he had expectations that he should be able to study and undertake highly skilled work on a foreign vessel. This leads the Tribunal to find that the applicant did not abandon his post on the [ship] due to a fear of returning to Cambodia for any reason under the Migration Act because he would be punished, but because he wanted to achieve a migration outcome (even if that path has been complex) and because he found the conditions on that ship unbearable.
In addition, the applicant has also not made out with country information that persons who desert ships come under the scrutiny of the Cambodian government and are treated harshly. Given the applicant left his ship in [City 1] in 2015, there is only a remote chance that government officials would continue to be interested in punishing the applicant in 2024 and into the reasonably foreseeable future. The Tribunal does not accept this contention.
The country information also does not support the applicant’s claims that because of his treatment on the [ship] and his refusal to work on that ship, the Cambodian government would set out to punish him. The country information indicates, rather, that the Cambodian government sees persons exploited by foreign vessels as being victims and has in place a functioning anti-human trafficking unit to deal with instances of abuse.[5]
[5]
The Tribunal has also had regard to the articles submitted by the applicant showing that any dissension towards the Cambodian government can invoke serious human rights abuses and indeed death. The Tribunal notes, however, that the articles involve high profile persons who appear to have crossed the Cambodian government in a specific and high-profile manner. As the Tribunal has rejected that the applicant was ever a high-profile student with an obligation to [Institute 1] and the Cambodian government to showcase the success of the Institute, the Tribunal rejects that this country information supports the applicant’s claims that he will be persecuted on return to Cambodia on account of his political or any other profile in relation to s5J. The Tribunal rejects that the applicant is of any adverse interest with [Institute 1], the Cambodian government or anybody else.
The Tribunal considers it is also apposite to note that the applicant did not attempt to regularise his status with the Department for an entire ten months prior to lodging his protection claims. His [visa] ceased on [date] August 2015, and he became unlawful prior to lodging this application on 16 June 2016. The applicant was [staying] at a temple in [City 2] after landing in [City 1] and the delay in lodging his application, the Tribunal finds, belies that his claims were immediate, pressing, credible or held gravity. The Tribunal does not accept that within ten months the applicant had no opportunity to see officials in the Department or others to give his expression to his claimed fears of returning to Cambodia. For this reason, also the Tribunal has concerns that in lodging this protection visa application the applicant was attempting to achieve a migration outcome.
Together with the other concerns highlighted by the Tribunal, the Tribunal does not accept that the applicant has a well-founded fear of persecution on return to Cambodia or that he will suffer any serious harm as claimed by the applicant in that he will be, among other things, prevented from earning a livelihood of any kind, because the Tribunal rejects that the applicant is of any interest to the Cambodian authorities or any other of its agents or other non-state actors.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
This requires the Tribunal to have consideration as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Cambodia, there is a real risk that he will suffer significant harm. The Tribunal has rejected his central claims that he is of interest to the Cambodian authorities and others acting on its behalf and has found that the applicant and his family will not face any serious harm by the government of Cambodia or anyone else on account of the applicant’s political opinion or membership of particular social groups as specified above.
An applicant will suffer significant harm (as opposed to serious harm) if the applicant were to be deprived of his life; or the death penalty will be carried out on the applicant; or he will be subjected to torture; or he will be subjected to cruel or inhuman treatment or punishment; or the applicant will be subjected to degrading treatment or punishment on being removed to Cambodia. For the reasons set out in this decision the Tribunal does not accept that the applicant has made out any genuine claims to fear harm of any kind and the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any reason if removed to Cambodia.
Consequently, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
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.
…

‘Ministry investigates maritime school over worker complaints’, Sokhean B, the Cambodian Daily,
1 December 2015, Ministry Investigates Maritime School Over Worker Complaints - The Cambodia Daily. In addition, ‘Ministry to Investigate Complaint From Seamen’, Jensen, A and Sokhean B, The Cambodia Daily, 9 September 2015, Ministry to Investigate Complaint From Seamen - The Cambodia Daily. Both the articles relate to the Interior Ministry’s anti-human trafficking department questioning an administrator at a maritime school over complaints lodged by seven former students who claim they were forced to flee a pair of Chinese-owned cargo ships after working in slave-like conditions.

‘Ministry to Investigate Complaint From Seamen’, Jensen, A and Sokhean B, The Cambodia Daily,
9 September 2015, Ministry to Investigate Complaint From Seamen - The Cambodia Daily. And more recently see, ‘Cambodia: Anti-Human Trafficking Unit sends two suspects to Phnom Penh Municipal Court for allegedly being involved in human trafficking’, Cambodia: Anti-Human Trafficking Unit sends two suspects to Phnom Penh Municipal Court for allegedly being involved in human trafficking - Business & Human Rights Resource Centre (business-humanrights.org).

[2024] AATA 434

5 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction