2214523 (Refugee)

Case [2024] ARTA 905

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 2

CASES

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 1816

Any 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

  1. 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').

  2. 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.

  3. 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.

  4. 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.

  5. The other applicants rely on the claims made by [Applicant 1] as members of the…

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AGLC
2214523 (Refugee) [2024] ARTA 905
Case
[2024] ARTA 905
Decision Date

CaseChat Overview and Summary

This case involved an application for review of a decision to refuse a protection visa to two Bhutanese nationals, referred to as [Applicant 1] and [Applicant 2]. The applicants argued that they had a well-founded fear of persecution if returned to Bhutan due to their association with an escapee, [Mr A], and a history of return visits to Bhutan. The Refugee Review Tribunal (RRT) upheld the delegate's decision to refuse the protection visa, and the applicants sought judicial review of the RRT's decision.

The primary legal issue was whether the applicants had a well-founded fear of persecution if returned to Bhutan, which would entitle them to a protection visa under the Migration Act 1958 (Cth). The court needed to determine if the applicants' claims were credible and whether they met the criteria for a well-founded fear of persecution or the complementary protection criterion.

The court found that the applicants had not provided sufficient evidence to support their claims. The delegate's decision to not accept [Applicant 1] as a credible witness was upheld due to inconsistencies in his accounts and the lack of supporting evidence. The applicants' claims of association with [Mr A] and the risk of persecution due to this association were not accepted. The court also found that the applicants did not meet the criteria for complementary protection as there were no substantial grounds for believing that they would suffer significant harm if returned to Bhutan. The court concluded that the RRT's decision to affirm the delegate's decision was correct, and the application for review was dismissed.

The final orders of the court were that the application for review be dismissed, the decision of the RRT be affirmed, and costs be awarded to the respondent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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).