The analysis below is based on an unofficial translation of the Khmer language text received from the Office of the High Commissioner for Human Rights as well as our own translation of the document.
At the outset, we note that the sub-decree includes four different articles dealing with expulsion: Article 7 ("officials... have the right to expel..."), Article 10 ("decision [to deny] shall be immediately implemented"), Article 22 (can expel a refugee "who bears an attitude and activity, which harms national security or the public order"), and Article 23 (the nonrefoulement provision). Combined with the broad authority granted to the Interior Minister in Article 5 to terminate and remove refugee status and the various exclusion and cessation clauses (Articles 7, 11, 12, 19, 20, and 21), the sub-decree provides Cambodian authorities numerous and overlapping bases for refusal of refugee status or removal with insufficient safeguards to protect against the wrongful removal of people with protection concerns.
The following highlights other key concerns:
Article 4, the refugee definition: The official Khmer translation of the Convention definition ("a well-founded fear of being persecuted") literally means "clearly founded reason to fear persecution." However, the language of the sub-decree is "fear for serious persecution". By specifying serious persecution, the sub-decree suggests that less-than-serious persecution could be grounds for denying refugee status, thus creating a higher standard for refugee status than the Convention requires.
Article 4, the refugee definition, exclusion and cessation: This article would exclude from the refugee definition those who "intend to receive protection from that country, or to return to that country." Neither the expression of the intention to return nor mere return per se qualifies as grounds for exclusion under the Refugee Convention. Nearly all refugees say they would like to return to their country (and receive their country's protection) when it is safe to do so. This expression of intention to return and to re-avail themselves of their country's protection has no relevance to their refugee status. The cessation clause in the Convention says nothing about intention to return. The cessation clause also makes it clear that mere return does not make refugee status cease. Cessation of refugee status comes about when the refugee "has voluntarily re-availed himself of the protection of the country of his nationality...or...has voluntarily re-established himself in the country..." Just returning to the country, for example, to go to a funeral or to "test the waters" to see if it is safe to re-establish oneself does not re-establish the refugee in the country and the expression of an intent to return in no way means that the refugee has voluntarily re-availed himself of his country's protection.
Article 5, ministerial orders (Prakas): The relationship between the Interior Minister's order that "shall determine" the recognition, termination, or removal of refugee status and the procedures outlined in Articles 10, 11, 12, 20, and 21 is not clear. If this had simply reiterated that the Interior Ministry is the competent ministry to determine refugee claims, it would not have been problematic. However, the "shall determine" language indicates that the Interior Ministry is authorized to ignore the other procedures on recognition, termination, and removal of refugee status in issuing the ministerial order.
Article 6, lodging an asylum claim: The decree says that "the applicant [for asylum] may receive permission to temporarily enter..." By making the entry of an asylum applicant discretionary, this provision opens up the possibility that such discretion will be exercised in the negative to reject asylum seekers at the frontiers and other ports of entry. There are numerous UNHCR ExCom conclusions holding that rejection at the frontier constitutes refoulement, including ExCom conclusions 6, 22, 99. In addition, Article 3(1) of the Bangkok Principles on the Status and Treatment of Refugees specifically states that no one seeking asylum shall be subjected to measures such as rejection at the frontier.
This article raises a concern that we hold about the sub-decree as a whole regarding how it will be implemented by border guards and other immigration officials and the extent of their training and competence to make life and death decisions about people seeking protection.
Article 7, expulsion: This article appears to conflate the grounds for expulsion (public order/national security) with Article 32 of the Convention (which is for expulsion of recognized, legally residing refugees to third countries where they would not face persecution) and the grounds for exclusion from refugee status in Article 1F of the Convention. Whereas Article 32 of the Convention says that expulsion of a refugee "shall be only in pursuance of a decision reached in accordance with due process of law," the Cambodian sub-decree says only that "competent officials of Cambodia have the right to refuse the entry or expel from the Kingdom" based on these grounds. The question is whether a border guard would be considered competent to make such a determination when refusing entry and, of course, whether that would satisfy due process, which is not mentioned in the context of refusal of entry and expulsion.
Article 8, a time limit for asylum processing: While we are pleased to that permission for the asylum applicant "to enter and stay...shall be given," we note the contradiction with Article 6, which makes entry of asylum seekers discretionary. We are concerned that this article will be interpreted solely to set time limits on the period of stay to ensure that it is no longer than necessary for the period required to process the claim, and that it will not be understood as establishing a right of entry and temporary stay to lodge a claim.
Article 10, Step 1, the application form for refugee status: The seven-day deadline for applications from the time that the Ministry of Interior gives the applicant the application form for refugee status is a short deadline. It would be even worse if it is interpreted to mean that applicants only have seven days to apply for asylum after entering the country. This provision also says nothing about the forms being in a language that the applicant can understand. The instruction that, "if necessary, the applicants shall be provided assistance in completing the form," should be more detailed and should indicate through a non-exhaustive list the types of needs applicants may have for assistance in filling out the forms.
Article 10, Step 2, the asylum interview: While it says that the applicant "shall have the right to raise legal...reasons...to get refugee status" it does not say anything about the right to legal representation. It also is silent on the right of the applicant to confidentiality. Nowhere in the sub-decree are rules or guidance provided for interviews of victims of sexual and gender-based violence. Given that this article suggests that applicants may be required to "submit additional information," the sub-decree also fails to reflect the evidentiary standard in paragraphs 196 of the UNHCR Handbook on RSD that "if an applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt."
Article 10, Step 3, the procedure for decision-making: The sub-decree provides no right to judicial appeal of a negative decision. The administrative appeal to the Immigration Department is the decision "of last resort." This is not an effective remedy because the appellate panel is in the same government department in which the first-instance decision was rendered. It may also be in conflict with rights under Article 16 of the Refugee Convention of free access to a court. Finally, there is also no indication that an appeal would suspend removal.
Article 10, Step 3, the procedure for decision-making: It says that the decision "shall be immediately implemented, even though there is an opposition from any cooperation sections." We interpret this to be a reference to UNHCR because Article 24 (see below) refers to UNHCR as "cooperation sections." If so, this would be an explicit directive to ignore UNHCR when denying and immediately deporting a refugee claimant who is still a person of concern to UNHCR.
Article 11, the immediate rejection of claims: This appears to be a fast-track procedure without any right of appeal or review of the immediate rejection of the claim. Point (b) lists as a ground for immediate rejection an application that "just stands on the economic needs." A genuine refugee may have mixed motives, economic betterment being one of them. For example, a North Korean may be fleeing starvation and seeking to fulfill basic economic needs, but that doesn't mean that he forfeits his claims of a fear of being persecuted upon return. The persecution claims are likely to be missed in a fast-track procedure, which is likely to particularly disadvantage poor and uneducated refugees or people who are fleeing forms of persecution where the instruments of persecution may be economic and social.
Article 11, the immediate rejection of claims, point (c): This allows for immediate rejection if, while the claim is pending, the applicant "has committed any act, which harms the national security and public order." The word "any" suggests that asylum seekers could be immediately rejected based on quite minor acts that harm the vague notion of "public order." We think it relevant to note that Cambodia's new law on peaceful demonstrations, passed in October 2009, says in Article 2 that such gatherings/demonstrations are not to be used as an opportunity to harm national security and public order. While there is a public order ground for expulsion in Article 32 of the Refugee Convention, it is for legally residing refugees and is for expulsions within the constraints of the nonrefoulement principle. It also includes due process safeguards. Legal commentary on the Convention suggests that the threat to public security would need to be serious to justify expulsion. This provision lowers the bar by permitting expulsion for "any act" and eliminates the Convention's due process protections, and-read in conjunction with Article 7-fails to maintain the distinction in the Convention between expulsion of refugees to third countries (Article 32) and exclusion from refugee protection (Article 1F).
Article 13, interpreters: We welcome that interpreters are to be provided free of charge. It would have been better if the sub-decree had also provided guidance or rules on the role or qualifications of interpreters in the interview, and whether applicants will have the option of using their own interpreters. Hopefully, questions such as these will be answered in the implementing instructions contemplated in Article 14. We particularly welcome that legal representation or custodianship is provided for children and disabled persons.
Articles 15-18, rights and obligations of refugees: These are generally helpful provisions, including Article 18's guarantee that refugees shall enjoy all rights under the Refugee Convention and Protocol. The duration of residency card, ability to adjust to permanent residency and naturalization are not specified here, though this may perhaps be included by reference to the Law on Immigration in Article 15.
Article 22, expulsion: This provision allows for the expulsion of a refugee "who bears an attitude and activity, which harms national security or public order." To expel a refugee for bearing such "an attitude" is over-broad and vague and lends itself to easy abuse. It would require no evidence that the refugee had engaged in any actual wrongdoing that harmed national security or public order, but rather could expel a refugee based on a highly subjective assessment of the refugee's state of mind set at a lower standard than a thought or an opinion.
Article 22, expulsion: We welcome that in this context at least, at the point of expulsion of a refugee, the sub-decree calls for due process and allows for legal representation. However, it appears that Article 22 is implementing Article 32 of the Convention, so the safeguards of legal representation and due process would only apply to previously recognized, legally residing refugees, not to asylum seekers.
Article 23, nonrefoulement: In our view the nonrefoulement article is the best provision of the sub-decree because it includes threats to "human rights" as a ground for nonrefoulement. We would interpret this to mean that the sub-decree would bar Cambodian officials from returning a person to face torture or inhuman or degrading treatment or punishment, though it would have been helpful to have stated this explicitly, particularly since this nonrefoulement provision retains the nexus to the five protected grounds of the Refugee Convention, whereas human rights law would prohibit refoulement regardless of the connection to race, religion, nationality, membership in a particular social group, or political opinion.
Article 24, UNHCR: This links to Article 10, last sentence, which basically says Cambodian authorities can ignore "cooperation sections" when they reject appeals and remove rejected asylum seekers because in this article UNHCR is identified as the body with which Cambodian officials "shall cooperate." So, while it is positive that the sub-decree includes an explicit directive for its officials to cooperate with UNHCR and provides asylum seekers access to UNHCR, it offsets that by also saying that at the end of the day they should ignore UNHCR.
 The unofficial translation obtained from OHCHR mistranslates this as "aptitude."
 The unofficial translation obtained from OHCHR mistranslates "persecution" as "persecutions."
 Human Rights Watch's translation.