2214523 (Refugee)
[2024] ARTA 905
•23 October 2024
2214523 (Refugee) [2024] ARTA 905 (23 October 2024)
Decision and
Reasons for Decision
Respondent:
Minister for Home Affairs
Tribunal Number:
2214523
Tribunal:
General Member F Robertson
Place:
Perth
Date of written statement:
23 October 2024
Decision:
The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 23 October 2024 at 1:26pm
CATCHWORDS
REFUGEE – protection visa – Bhutan – association with an escapee – fear of detention – fear of torture – return visits to Bhutan – arrest warrant – law of general application – potential criminal conviction – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
AJZ17 v Minister for Home Affairs [2019] FCA 1485
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225
Applicant S v MIMA [2004] HCA 25; 217 CLR 387
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1
EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
Statement of reasons
INTRODUCTION
This is an application to review a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the 'Act').
The applicants are Bhutanese nationals. The first-named applicant is [an age]-year-old male ('[Applicant 1]'). The second-named applicant is [an age]-year-old female ('[Applicant 2]'). [Applicant 1] and [Applicant 2] are spouses. Their children, the third-named applicant, who is [age], and the fourth-named applicant, who is [age], are the remaining applicants.
The claims relate to [Applicant 1’s] previous knowledge of and association with a person who had escaped from the custody of the Bhutanese authorities nearly 30 years ago. [Applicant 1] fears being investigated, detained, questioned, and prosecuted for an offence arising from this.
In addition to the prospect of a prison sentence, he fears being harmed by the Bhutanese police whilst in their custody and the adverse effects that a conviction would have on him.
The other applicants rely on the claims made by [Applicant 1] as members of the same family unit as [Applicant 1].
For the following reasons, the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Protection claims
The protection visa application filed by the applicants was prepared with the assistance of a representative, Mr Wang. Their protection claims were contained in a separate document.
The claims outlined in that document were that in [specified year], [Applicant 1] travelled to [Country 1] and commenced tertiary studies at [University 1]. [Applicant 1] claims that while looking for work, he met [Mr A], the [manager] of [Agency 1] in [Country 1]. [Mr A] was also from Bhutan, and [Applicant 1] claims they were 'instantly close'. [Applicant 1] was offered a job as [an occupation 1] while he continued to study at [University 1].
[Applicant 1] claims that after working with [Mr A] for about one year, he 'came to know' that [Mr A] had escaped from prison in Bhutan and fled to [Country 1]. He claims he confronted [Mr A] about this, who confirmed it was true but explained that he was unjustly imprisoned. [Applicant 1] claims that [Mr A] told him a story about him hiring [equipment] for men who used that [equipment] to commit various crimes. [Mr A] told him, and [Applicant 1] claims he escaped with those men to [Country 1] before their trial.
[Applicant 1] claims that he believed in [Mr A] and continued to stay in [Country 1] for a few years to help him run his [agency].
[Applicant 1] claimed that 'very recently' he got information that the Royal Bhutan Police ('RBP') 'deployed a search party to look for [him]'. He claims that he discovered that [Mr A] had lied to him and had, in fact, stolen [valuables] from a [public site] with accomplices for financial gain. [Applicant 1] claims that [Mr A] was charged and convicted in [specified year] and sentenced to life imprisonment, later escaping in 1994.
[Applicant 1] claims that the RBP is aware that he worked with [Mr A] and is looking for him because he failed to report [Mr A] to the authorities. He will be charged with an offence under section 428 of the Penal Code of Bhutan.
In support of his protection claims, [Applicant 1] produced a document purportedly from the Royal Bhutan Police dated [in] May 2016 addressed to [Applicant 1’s] father stating:
This is to inform you that we are looking for your son [named], CID no-[number],Passport no -[number], for some investigation purpose, Since he is currently not here in the country, you are asked to direct him to this police station as soon as he comes back to the country. Your necessary cooperation and his prompt response in this matter go long way in mitigating and wrongly implicating him.
The letter is signed by a person purporting to hold the rank of [Rank 1] in the RBP. The applicants also submitted and rely on a 'Crime Investigation Report' regarding [Mr A].
Interview
[Applicant 1] participated in an interview regarding his claims. I have listened to that interview and am satisfied that the delegate's decision fairly summarises the material parts of it.
On 17 September 2024, [Applicant 1] provided a written submission in response to the findings made by the delegate. In short, that document claimed:
(a)the conclusion that he was the [manager] of the [agency] was wrong, as his ID card clearly states that he was [an occupation 1];
(b)the different phone numbers and logos appearing on [Applicant 1’s] ID card and his letter of employment confirmation are explicable for a variety of reasons;
(c)his agent wrongly submitted a CV prepared for an application for a cleaner job which did not need to, and so did not, refer to [Applicant 1’s] university qualifications; and
(d)the travel of his wife to Bhutan in 2017 was able to occur safely because it was only him, and not his wife, that was of adverse interest to the RBP.
The letter also made submissions regarding the alleged errors in the delegate's finding that he had never studied or worked in [Country 1], why the RBP remains interested in him to this day, and corrections to his work history at the [agency].
Delegate's decision
The delegate accepted that the applicants were Bhutanese nationals. Yet, the delegate did not consider [Applicant 1] a truthful witness and was not satisfied his claims were credible.[1]
[1] Delegate's decision, p 16.
The delegate did not accept that [Applicant 1] lived or studied in [Country 1] or worked for [Agency 1].[2] The delegate did not accept that [Applicant 1] was connected to [Mr A]. Based on those findings, the delegate did not accept that [Applicant 1] would face charges from the RBP because of his association with [Mr A].
[2] Delegate's decision, p 16.
In reaching an adverse conclusion as to the credibility of [Applicant 1], the delegate was critical of the claims and evidence given by [Applicant 1] for several reasons. Among other things, the delegate concluded:
(a)[Applicant 1] had failed to disclose his return to Bhutan for four months in any of the written materials provided to the Department prior to the interview;[3]
(b)the information provided by [Applicant 1] about when he was resident in [Country 1] and with respect to his employment, both as to the period during which he worked at [Agency 1] and his failure to disclose his period of employment in Bhutan prior to the interview, was inconsistent;[4]
(c)[Applicant 1] claimed to have moved to [Country 1] to pursue tertiary study, but the information provided in his protection visa application was that he commenced his studies in 'July [of a later year]' and had a completion date of 'June [of that later year]';[5]
(d)[Applicant 1] provided an inconsistent account as to when he became aware of [Mr A’s] true criminal past, inconsistently claiming it was between 2013 and 2014;
(e)[Applicant 1] claimed to have returned to Bhutan every two years between 2006 and 2014 during the school holidays and could [enter] without a passport. The delegate concluded that [Applicant 1’s] asserted ability to [enter Bhutan] without a passport, using only his student ID, was not supported by country information in respect of [Country 1’s] border processes or student visa arrangements in [Country 1][6] and the absence of any stamps in [Applicant 1’s] passport, issued in Bhutan in July 2012, demonstrating travel between [Country 1] and Bhutan undermined his claims;
(f)the CV provided by [Applicant 1] in support of his application for a student visa did not include any information about his claimed education or employment in [Country 1] and only listed employment in Bhutan. The delegate did not accept the explanation proffered by the applicant, finding it 'lacking';[7] and
(g)the delegate further referred to the documentary evidence provided by the applicant, noting that fraudulent documents are readily obtainable in respect of [Country 1].[8]
[3] Delegate's decision, p 9.
[4] Delegate's decision, pp 9-10.
[5] Delegate's decision, p 10.
[6] Delegate's decision, pp 12-14
[7] Delegate's decision, p 14-15.
[8] Delegate's decision, p 15.
Review application
This review application was made to the Administrative Appeals Tribunal. As of 14 October 2024, the AAT was abolished and the applications that were pending before it are to be finalised by a new Tribunal, the Administrative Review Tribunal.[9]
[9] See Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16.
Hearing
The applicants were invited to a hearing before the Tribunal to give evidence and present arguments. They responded to that invitation, indicating that only [Applicant 1] would attend. They did not seek for the Tribunal to take oral evidence from any witnesses. The hearing proceeded on 3 October 2024. As foreshadowed, only [Applicant 1] appeared at the hearing. Where material, I refer to [Applicant 1’s] evidence and submissions for the purposes of the review application below.
[Applicant 1] raised during the hearing that he feared that the RBP would torture him. I indicated that I was not aware of country information that indicated that the RBP tortured persons who were suspected of committing offences. The applicant could not point to any particular information at the hearing, so I indicated that I would provide [Applicant 1] with additional time to provide any country information he wished to rely on to support that claim.
On 11 October 2024, the applicants provided photographs. One photograph was a photograph of a screen showing a person called '[Mr A]' from [Village 1].[10] The others were photographs of [Applicant 1] and other persons. Also provided was a 'charge sheet' for [Mr A]', which contains particulars that match those in the image, which was a photograph of a screen. No additional information or context was provided. There was no request for additional time to provide further or additional material to the Tribunal.
[10] See IMG_1576.jpg / IMG_1576.pdf
CRITERIA FOR THE GRANT OF 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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as such a person who holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) of the Act 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 decision‑maker 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.[11]
[11] Migration Act 1958 (Cth), s 5H(1)(a).
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.[12] Among other things, persecution must involve serious harm[13] and systematic and discriminatory conduct.[14]
[12] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[13] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[14] Migration Act 1958 (Cth), s 5J(4)(c).
A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[15] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[16]
[15] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[16] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
Complementary protection criterion
If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[17] What amounts to 'significant harm’ is exhaustively defined in s 36(2A) of the Act.[18]
[17] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[18] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
ANALYSIS, FINDINGS AND REASONS
Applicants are responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[19] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.[20] Rebutting evidence is not required before I can find a particular factual assertion is not made out.[21]
[19] Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 [148] (Ladhams J).
[20] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[21] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 [7] (Heerey J).
In making this decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs.[22] There is no Department of Foreign Affairs and Trade ('DFAT') Country Information Report for Bhutan.
[22] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
Country of nationality
The applicants claim to be Bhutanese nationals. They have travelled to Australia and hold passports that appear to have been regularly issued by that country. I am satisfied that Bhutan is both the applicants' country of nationality and the receiving country.
DO THE APPLICANTS, OR ANY OF THEM, SATISFY THE REFUGEE CRITERION?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[23]
[23] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
[Applicant 1’s] association with [Mr A]
I am prepared to accept that [Mr A] escaped the custody of the Bhutanese authorities on two occasions, in 1994 and 1995 and fled to [Country 1], where he has remained ever since. I am also prepared to accept that [Mr A] became the [manager] of an [agency] in [Country 1] and that [Applicant 1] worked for that [agency] between 2008 and 2014. I am prepared to accept that [Mr A] misled [Applicant 1] regarding the circumstances of his departure from Bhutan and that, at some stage later, [Applicant 1] became aware that [Mr A] was generally a fugitive from the RBP and Bhutan.
I am prepared to accept that the RBP has expressed a desire to interview [Applicant 1] and that this will relate to his involvement with [Mr A] during his time in [Country 1]. I am also prepared to accept that [Applicant 1] may be charged with an offence under [Country 1] law for failing to report [Mr A’s] whereabouts.
[Applicant 1] claims he will be exposed to potential investigation, questioning, prosecution and imprisonment for criminal offences based on his past association with [Mr A]. He also claimed, albeit somewhat vaguely, that he may be suspected of assisting [Mr A] in transiting between Bhutan and [Country 1]. He further claims that if he is charged and convicted, he would face stigma and the prospect of being ostracised in his community.
[Applicant 1] fears being charged with an offence under s 428 of the Penal Code of Bhutan (the 'Code').[24] That provision is in the following terms:
[24] See undated statement of claims provided in support of protection visa application on or about 21 September 2016. See also Penal Code of Bhutan, < p 56.
Failure to assist lawful authority
428. A defendant shall be guilty of the offence of failure to assist lawful authority, if the defendant could aid the lawful authority without risk of bodily injury or property to the defendant and fails to aid the lawful authority in the following acts:
(a) Execution of a warrant
(b) Capture or prevention of escape of any person whom the lawful authority is authorized to arrest;
(c) Arrest of a person
(d) In the prevention or suppression of a breach of the peace; or(e) Service of a Court order
That offence is graded as a 'petty misdemeanour'.[25] A petty misdemeanour provides for a maximum term of imprisonment of less than one year and a minimum of one month.[26] There are various alternative sentences also available which do not include imprisonment.[27]
[25] Code, s 429 (p 56)
[26] Code, s 3(c) (p 2); s 13 (p 3).
[27] See Code, Chapter 4 (pp 5 – 6).
For the purposes of this decision and favourably to the applicants, I am prepared to assume that there would be an arguable case that, at some stage, [Applicant 1] could have aided the RBP in bringing about the capture or arrest of [Mr A].
I will deal with the claims in the following order. First, I will deal with the claimed risk of torture and physical harm during any period when the RBP questions [Applicant 1] or is in police custody. Second, I will deal with the harm feared from the application of the Code. Third, I will deal with the claimed stigma and aftermath of any convictions and sentence that [Applicant 1] may suffer.
Risk of torture or physical harm by police whilst in police custody
After raising the lack of persecutory motivation with the applicant, he claimed that he would be tortured whilst in Police custody.
[Applicant 1] did not raise the prospect of torture until the hearing before the Tribunal. Indeed, he raised it only after I had discussed potential difficulties with [Applicant 1’s] claim to be owed protection obligations because he faces prosecution under the Code for a criminal offence. The statement of claims submitted supporting the protection visa application only refers to [Applicant 1’s] fear of being arrested, charged and imprisoned.
Nevertheless, I gave [Applicant 1] a further period to provide me with any country information that he wished to rely on to support his claim that persons suspected of criminal offences face a real chance of being harmed while in police custody or that they are tortured. [Applicant 1] provided some additional evidence but no country information to support his claims.
I was not able to locate any country information which suggested that persons suspected of committing offences under the Code were regularly, or even rarely, subjected to either physical harm or torture in Bhutan. I am prepared to accept that there is evidence of political prisoners in Bhutan being tortured.[28]
[28] See 'Bhutan: Urgently Reform Justice System, Prison Conditions', Human Rights Watch, 10 July 2024,
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I have considered that, as [Applicant 1] claims, [Mr A] is accused of stealing [valuables]. That is not a political crime, despite the importance of [valuables] in Bhutanese culture. There is no suggestion that [Mr A] was a political opponent of the Bhutanese government or that [Applicant 1] is, or would be considered, a political opponent of the Bhutanese government. In any event, I am not satisfied that either [Mr A] or [Applicant 1] are, or would be imputed to be, political opponents of the Bhutanese regime.
[Applicant 1] has not been involved with [Mr A] for approximately the last 10 years. Indeed, he has been in Australia and can readily demonstrate that he has been in Australia. I am not satisfied on the material before me that, in the course of investigating or questioning [Applicant 1] about his relationship and involvement with [Mr A] there would be a real chance that he would be physically harmed or tortured. I am satisfied that any such risk is speculative and remote. That is particularly the case where I find that [Applicant 1] does not have any ongoing feelings of loyalty to [Mr A] and, in fact, feels betrayed by [Mr A’s] lies. I am satisfied that [Applicant 1] would willingly provide whatever information he could about [Mr A] and his last known whereabouts. I am further satisfied that this would reduce what I otherwise consider is an already remote prospect of [Applicant 1] being physically harmed or tortured whilst in police custody.
In the circumstances, I am not satisfied, and I do not accept that he faces a real chance of serious harm while in police custody. To avoid doubt, I do not accept that being detained in police custody for a period while a person is questioned involves serious harm. Moreover, I have separately considered the deprivation of [Applicant 1’s] liberty and whether it gives rise to a well-founded fear of persecution.
Exposure to investigation, prosecution and potential imprisonment for criminal offences
The enforcement of a generally applicable criminal law does not ordinarily constitute persecution.[29] Moreover, the enforcement of laws designed to protect the general welfare of the State is ordinarily not persecutory behaviour.[30] Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory. Yet, I accept that a law of general application can be implemented or enforced in a discriminatory manner.[31]
[29] Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225; Applicant S v MIMA [2004] HCA 25; 217 CLR 387 [44].
[30] Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225; Applicant S v MIMA [2004] HCA 25; 217 CLR 387 [44].
[31] Applicant S v MIMA [2004] HCA 25; 217 CLR 387 [42]; AJZ17 v Minister for Home Affairs [2019] FCA 1485 [17]
I am not satisfied that the risk of being charged with a criminal offence under s 428 of the Code for failing to report the whereabouts of an escaped criminal, even if it ultimately leads to a conviction and imprisonment, does not constitute persecution within the meaning of the Act because I am not satisfied that such action would either involve systematic and discriminatory conduct, within the meaning of s 5J(4)(c) or be for the essential and significant reason of a [Applicant 1’s] race, religion, nationality, membership in a particular social group or political opinion.
A law of general application may amount to persecution within the meaning of s 5J(1)(a) in how it is implemented or enforced.[32] Where this is alleged, a preliminary question is whether the law results in discriminatory treatment.[33] At the hearing, [Applicant 1] did not contend that the law would be applied to him in a discriminatory way[34] – only that it would be applied to him.
[32] Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225 Applicant S v MIMA [2004] HCA 25; 217 CLR 387 [44].
[33] AJZ17 v Minister for Home Affairs [2019] FCA 1485 [44].
[34] Including both differential treatment or a failure to treat people who are relevantly different in a manner that is appropriate and adapted to their difference.
Even accepting that the RBP would investigate, question and charge [Applicant 1] with an offence, as he fears, I do not accept that the bringing of, prosecution of, or any sentence arising from any such charges would be for the essential and significant reason of one or more of [Applicant 1’s] race, religion, nationality, membership of a particular social group or political opinion or be motivated by, or result from, systematic and discriminatory conduct.
I am satisfied that s 428 of the Code does not result in discriminatory treatment. I am also satisfied that the law is legitimate and appropriately adapted to Bhutan's legitimate interests.
I am not satisfied that the Code will be implemented or enforced in a persecutory manner regarding [Applicant 1] or any of the applicants.
I am not satisfied that ‘friends’, 'employees' or 'associates' of [Mr A] or any other group constructed by reference to a person’s relationship to, or past involvement with, [Mr A] constitutes a particular social group as provided for in s 5L of the Act. I do not accept that association with [Mr A] is an innate or immutable characteristic, that it is fundamental to [Applicant 1’s] identity or distinguishes the group from society.
I do not accept that [Applicant 1] or the other applicants would be persecuted if they returned to Bhutan. Instead, I am satisfied that, even considering [Applicant 1’s] case about being exposed to criminal offences, a law of general application would only be possible to apply to [Applicant 1].
Stigma and ostracism as a criminal
Assuming [Applicant 1] were to be charged, convicted and sentenced for an offence under the Code, I have also considered [Applicant 1’s] claims that he would experience stigma and ostracism within his local community. [Applicant 1’s] evidence in support of this was limited. Whilst I am prepared to accept that it would likely become known within his local community that he had been convicted of an offence and spent time in prison, I am not satisfied that this would result in his experiencing serious harm having regard to the non-exhaustive definition contained in s 5J(5).
I am not satisfied that it would involve a threat to his life or liberty or that it would result in significant physical harassment or ill-treatment. I am not satisfied that it would result in significant economic hardship that would threaten [Applicant 1’s] capacity to subsist or that it would result in [Applicant 1], or any of the applicants, being denied access to services or a capacity to earn a livelihood which would threaten their capacity to subsist. I am not at all satisfied that [Applicant 1], or any of the applicants, would face a real chance of serious harm as a result of any stigma or ostracism that was to occur because [Applicant 1] was a convicted criminal, if he was charged and convicted.
Cumulative consideration
I have also considered the claims raised cumulatively. Having done so, there is no feature of any of the above claims that, when considered cumulatively with one or more or all the other claims, would lead me to conclude that [Applicant 1], or any of the applicants, have a well-founded fear of persecution.
For the above reasons, I am not satisfied that the applicants, or any of them, have a well-founded fear of persecution within the meaning of s 5J(1) of the Act or that they are refugees within the meaning of the Act. The applicants do not satisfy the refugee criterion in s 36(2)(a) of the Act.
DO THE APPLICANTS, OR ANY OF THEM, SATISFY THE COMPLEMENTARY PROTECTION CRITERION?
To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bhutan, there is a real risk that they will suffer significant harm.[35]
[35] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[36] Where claims overlap, I am permitted to refer to and rely on my relevant findings when considering the refugee criterion under s 36(2)(a) when assessing whether the applicants satisfy s 36(2)(aa).[37]
[36] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).
[37] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
Risk of significant harm in the form of torture or physical harm?
I was not satisfied that [Applicant 1] faces a real chance of serious harm whilst in police custody, other than potentially being deprived of his liberty if sentenced to a term of imprisonment. I separately considered whether being deprived of his liberty as part of enforcing the Code amounted to a well-founded fear of persecution.
For the same reasons as I set out above, I am not satisfied that substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bhutan, there is a real risk any of them will suffer significant harm in the form of torture or physical harm whilst in police custody.
Risk of significant harm occasioned by deprivation of liberty?
I have separately considered whether the deprivation of [Applicant 1’s] liberty, whether during questioning, pre-trial procedures or during a sentence of imprisonment, would involve [Applicant 1] facing a real chance of significant harm.
Significant harm is exhaustively defined in s 36(2A) of the Act. That section provides:
(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.
For the purposes of that definition, I note that 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment' are also defined in the Act.[38] I take those definitions into account. By s 5(1), torture, cruel or inhuman treatment or punishment and degrading treatment or punishment do 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.’
[38] Migration Act 1958 (Cth), s 5(1).
As such, even harm which involves pain or suffering or extreme humiliation but which is inherent in, or incidental to, a lawful sanction, where that sanction itself does not breach the Articles of the International Covenant on Civil and Political Rights, will not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, within the meaning of the Act. Moreover, in considering whether humiliation inflicted in the context of law enforcement would point to degrading treatment or punishment, the level of humiliation must go beyond that ‘inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment’.[39]
[39] See, for example, Labita v Italy, European Court of Human Rights, Application No 26772/95 (6 April 2000) at [120].
I have not accepted that there is a real chance that [Applicant 1] would be physically harmed or tortured whilst in police custody in respect of the offences he claims that he is exposed to investigation and prosecution for.
I have separately considered whether being detained in custody or being sentenced to a term of imprisonment meets the definition of significant harm, as that term is exhaustively defined in the Act. I am not satisfied that being detained or imprisoned, in accordance with Bhutanese law, would involve [Applicant 1] being arbitrarily deprived of his life or having the death penalty carried out on him. I am also not satisfied, for the reasons given, that he would be subjected to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment (as those terms are defined in the Act).
I am not satisfied that the conditions that [Applicant 1] would experience during any period of detention would be sufficiently harsh or humiliating or would otherwise be, such as to involve 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment' as defined in the Act.
Risk of significant harm occasioned by stigma and ostracism
I am not satisfied that [Applicant 1] faces a real risk of significant harm as a consequence of any stigma and ostracism arising out of any prosecution for, and sentence in relation to, breaches of the Code. Assuming it were to occur, I do not consider that the fact of his prosecution and sentence would involve a level of humiliation to either [Applicant 1] such that it would transgress the inevitable element of suffering, connected to persons who have experienced legitimate criminal sanctions or punishment.
Despite not being expressly claimed, I have separately considered whether the other applicants face a real risk of significant harm because of their association with [Applicant 1]. I am not satisfied that they would face a real risk of significant harm on the basis of their association to [Applicant 1]. Moreover, I am not satisfied that any humiliation, stigma or ostracism would be such that it would amount to cruel or inhuman treatment or punishment or degrading treatment or punishment within the meaning of the Act.
On that basis, and considering the claims individually and collectively, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants' removal from Australia to Bhutan, there is a real risk that the applicants, or any of them, will suffer significant harm.
For the above reasons, the applicants do not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.
CONCLUSION
The applicants are not persons for whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa) and find that the applicants are not persons for whom Australia has protection obligations under s 36(2)(aa).
Other than in respect of each other, there is no suggestion that the applicants satisfy s 36(2) based on being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and holds a protection visa.
As I have found that none of the applicants satisfy s 36(2)(a) or (aa), it follows that the applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Date of hearing:
3 October 2024
Representative for the Applicant:
In person
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