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Tribunal: Senior Member Dr Irene O’Connell

The Department of Home Affairs (the Department) refused to grant the applicant a Protection visa. The applicant applied to the AAT for a review of the decision.

The applicant originally arrived in Australia from Cambodia on a Prospective marriage visa in 2009, becoming a permanent resident in 2012. In 2016, an Australian court convicted the applicant of importing a marketable quantity of heroin and sentenced her to a period of imprisonment. As a result of this, the Department cancelled her visa. After being released on parole, she applied for a Protection visa claiming to fear harm on return to Cambodia because she was divorced and had a drug conviction. She feared she would be stigmatised and treated as an ‘undesirable’. She also raised fears of being detained in a rehabilitation camp and being subjected to mistreatment including torture and forced labour.

Australia has an obligation under the Migration Act 1958 to protect individuals that can satisfy one of two criteria.[1] The first is called the ‘refugee criterion’ and broadly requires the applicant to have a ‘well-founded fear of persecution’.[2] The second is called ‘complementary protection’ grounds and broadly requires that there is ‘a real risk of significant harm’ to the applicant.[3]

In considering the applicant’s claim for protection, the AAT had regard to country information assessments prepared by the Department of Foreign Affairs and Trade, as well as other relevant country information. Based on this evidence, the AAT concluded that the applicant may experience some hardship if returned to Cambodia as a result of her criminal history but was not satisfied, in all the circumstances, that there was a real risk of significant harm or a real chance of persecution within the meaning of the Migration Act 1958.

The AAT concluded that the applicant did not satisfy either the ‘refugee criterion’ or the ‘complementary protection’ grounds for a Protection visa. The AAT affirmed the Department’s decision to refuse the Protection visa.

Read the full decision on AustLII.


[1] Section 36(2) of the Migration Act 1958.

[2] Section 36(2)(a) and section 5H for the meaning of a refugee under the Migration Act 1958.

[3] Section 36(2)(aa) and section 36(2A) for the meaning of significant harm under the Migration Act 1958.