2215258 (Refugee)
[2024] ARTA 165
•17 October 2024
2215258 (Refugee) [2024] ARTA 165 (17 October 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2215258
Tribunal:General Member Jennifer Ermert
Date:17 October 2024
Place:Melbourne
Decision:The Tribunal affirms the decisions under review.
Statement made on 17 October 2024 at 2:44pm
CATCHWORDS
REFUGEE – protection visa – Bhutan – race – Lhotshampa ethnicity – visiting Lhotshampa refugees abroad – Bhutanese citizenship – employment – fear of detention – property seized by the government – arrest warrant – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33Any 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
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 September 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Bhutan, applied for the visas on 29 July 2016. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
Of all the applicants invited to attend a hearing before the Tribunal on 13 September 2024, only the first named applicant, [named], appeared to give evidence and present arguments. The Tribunal hearing was conducted in English, although an interpreter in the Nepali and English languages was available during the hearing to assist.
On 14 October 2024, the Administrative Appeals Tribunal (‘AAT’) became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
Personal background and immigration history
As the first named applicant, [named], is the only applicant who has raised protection claims and attended the hearing with the Tribunal to give evidence, the Tribunal will refer to her as ‘the applicant’ for the remainder of this Statement of Reasons for convenience, unless otherwise specified to distinguish her from the other applicants who are members of her family, i.e. her husband (the second named applicant) and her sons (the [other] named applicants).
The applicant is [an age] year old woman who was born in Thimphu, Bhutan. She claims to be of the Lhotshampa ethnicity and a Hindu. Her mother passed away when she was young. Her father, who is currently in Australia, lived with her until about a year and a half ago when he had to be moved into an aged care facility due to mobility issues and other aged care needs after suffering [medical conditions]. She has a brother who is still residing in Bhutan.
The applicant is married with [number] sons. In 2013 she and her sons came to Australia on student visas as dependents of her husband who also arrived on a student visa to pursue [further studies]. The applicant and her family have not departed Australia since. This is corroborated by movement records maintained by the Department which indicate that the applicant and her family last entered Australia [in] October 2013.
At the hearing, the applicant gave evidence that she went to a boarding school in India, before returning to Bhutan where she studied a [Qualification 1] at [College 1] where she met her husband. Prior to coming to Australia, both the applicant and her husband worked for 12 years respectively as [occupation 1s] for different Bhutanese government [agencies].
The applicant claimed she has been working in [industry 1] for the last 8 years, while her husband is currently working as [an occupation 2]. Her [number] younger sons are still in school, whilst [another] son, who dropped out of school and helped look after her father until her father’s move to the aged care facility, recently started working in a factory.
The applicant stated at the hearing that she and her husband are temporarily separated/ living apart due to her husband’s drinking problems which had created tension at home, so to avoid arguments she moved to a different accommodation in March this year to give herself a bit of space. She still talks to and maintains a cordial relationship with her husband, and she goes back home almost daily to give her husband and sons breakfast and pack their lunches. The applicant stated she plans to move back home in the near future as things are much better with her husband after they have given each other the space in the last 6 months, although she does not yet know exactly when she would move back home.
The Tribunal accepts each of the above matters to be true in the absence of information and evidence indicating the contrary.
Evidence before the Department
The written claims included in the applicant’s protection visa application are outlined below:
·In the 1990’s, Lhotshampa (Southern Bhutanese) were discriminated against and politically persecuted in Bhutan, resulting in a large number of Lhotshampas leaving Bhutan and seeking refuge in Nepal. This included the brothers and sisters of the applicant’s father who left Bhutan and resettled in different parts of [Country 1].
·The applicant’s father was forced to resign from his long-term government job due to the reason of his family members being refugees.
·The applicant decided to come to Australia with the intention of giving her children an opportunity for a good education and for her husband to pursue further studies in his field.
·In 2014, the applicant’s father visited Australia. During this visit, the applicant and her [specified] sons accompanied her father to visit her father’s cousin, who is a refugee, in Adelaide whom her father had not seen for 25 years.
·Upon her father’s return to Bhutan, he discovered that somehow their visit to his refugee cousin in Australia came to the notice of the Bhutanese government. The applicant claimed it is common knowledge in Bhutan that meeting a Lhotshampa refugee is considered to be anti-government.
·The applicant’s father was hospitalised as a result of depression. Following his discharge from hospital, he left Bhutan for the Indian border state of Assam.
·The applicant claimed she decided to visit her father but was advised against it by her father and her brother who told her that she would certainly be detained on her arrival in Bhutan and be imprisoned.
·The applicant claimed that accompanying her father to visit his refugee cousin also resulted in her sponsorship being withdrawn by her Bhutanese sponsor, who was aware that the property owned by her father would be seized by the government.
·The applicant claimed she and her family cannot return to Bhutan because of the persecution they would face as Lhotshampas. They would be watched, detained and possibly silently executed for their perceived anti-government stance arising from having met other Lhotshampa refugees abroad.
The delegate refused the applicant and her family members’ protection visa application on the basis that, whilst the applicant has been generally consistent in her claims, there was an overall lack of detail or explanation about how the Bhutanese authorities have come to know about the visit to a Bhutanese refugee relative in Australia, and the applicant has not given a reasonable explanation for why the Bhutanese authorities would be interested in her on account of that visit.
Evidence before the Tribunal
At the hearing, the applicant gave evidence that both she and her husband are Lhotshampa. Her mother was from Nepal, whilst her husband’s mother was from India. As a result of their mothers’ non-Bhutanese status, they did not enjoy the same privileges as full Bhutanese citizens and were discriminated against, for example when going through checkpoints on roads, or being issued ‘open certificates’ that they had to renew annually. However, that somehow changed later ‘when democracy came’ and they acquired citizenship.
Following the persecution and expulsion of Lhotshampas from Bhutan in the 1990s, her father’s brothers and sisters who were chased out of Bhutan resettled in either [Country 1 or 2], whilst her father’s cousin came to Australia and resettled in Adelaide. Her father, who had worked as the [Position 1] for over 35 years and who was based in the capital Thimpu, refused to leave Bhutan when asked by his brother because he had not been told to leave Bhutan. However, he was subsequently asked to compulsorily retire.
The applicant claimed that as she spent many years studying abroad in India, she did not experience significant discrimination in her youth as a Lhotshampa in Bhutan, although she was aware of the discriminatory treatment that Lhotshampas suffered in many aspects of life in Bhutan, for example she and her husband were always made to feel different. Despite this, the applicant confirmed that she has not suffered any serious harm before coming to Australia.
The Tribunal asked the applicant why she applied for the grant of a protection visa, if she had not suffered serious harm in Bhutan before coming to Australia. The applicant claimed she found out from her father that after his return from his Australian visit to Bhutan, a warrant was issued for his arrest on account of him being an intermediator due to his visit to his refugee cousin in Adelaide. Her father apparently learned about the arrest warrant from some friends who found out and warned him about it, although the applicant was unable to say how her father’s friends knew about the arrest warrant. There was also some confusion and uncertainty around whether her father was hospitalised in Bhutan for depression and panic attack because of the arrest warrant, or whether he was already in hospital when he found out about the arrest warrant.
The Tribunal asked the applicant why she and her father went to visit his refugee cousin in Adelaide, given her claim that it is common knowledge in Bhutan that it is illegal to visit and interact with Lhotshampa refugees. The applicant claimed they did not know. When the Tribunal put it to the applicant it could not understand how she and her father, who have both worked for the government for many years, did not know this, the applicant claimed people who visited Lhotshampa refugees in Nepal were often punished on return to Bhutan, but since she and her father were visiting his cousin in Australia they did not think it would be a problem.
The Tribunal asked the applicant what she believes would happen if she and her family were to return to Bhutan. The applicant claimed the police and the government would be after them, and that it is very likely that she and her family would be secretly taken away and locked up in the large prison in [location] and no one would know. The applicant claimed this could happen to them because she knows of many Lhotshampa women whose husbands have gone missing and no one knows what has happened to them.
In response to the Tribunal’s question why the Bhutanese government would have any adverse interest in her given it has been 10 years since she accompanied her father to visit his cousin in Adelaide, the applicant was adamant she would be in trouble if she returned to Bhutan because the government takes perceived anti-government and seditious conduct very seriously. Even her father, who has spent almost his whole life in Bhutan, has said he would rather die here which she said is indicative of the seriousness of the threat awaiting them if they returned to Bhutan. On the other hand, her brother has been able to remain living in Bhutan without problem because he never visited a Lhotshampa refugee like she and her father had, and because he is married to an ethnically Bhutanese woman from a well-to-do family rather than a Lhotshampa woman, which shields him from the risk of persecution in, or expulsion from, Bhutan.
With respect to the sponsorship that the applicant referred to in her protection visa application, the applicant explained that she had an apartment in Thimpu that her father had previously bought for her, which was mortgaged to an aunt to raise funds for her family’s visas and travel to Australia and to pay for her husband and children’s course and school fees. However, the apartment was seized by the government following their 2014 visit to her father’s refugee cousin, as a result of which the aunt withdrew her financial support. The applicant claimed this led the non-payment of school fees and the consequent cancellation of their student visas, and the start of her husband and eldest son’s respective drinking and mental health problems.
The Tribunal discussed with the applicant that, although ethnic cleansing of Lhotshampas via forced expulsion from Bhutan in the 1990s was a significant problem, the situation for Lhotshampas in Bhutan appears to have improved. The Tribunal has not found recent country information suggesting that Lhotshampas in Bhutan continue to face persecution of the kind seen in the 1990s, or that Lhotshampa individuals with the applicant’s profile would have difficulty returning to Bhutan or would be seriously harmed in Bhutan.
The applicant disagreed and claimed that her association with expelled Lhotshampas from the 1990s, viz. the visit to her father’s cousin, is enough to impute to her an elevated anti-government profile and increase her risk of harm from the Bhutanese government which has continued to hold out against Lhotshampas from the 1990s. The dearth of recent country information reports of Lhotshampa persecution in Bhutan does not mean it is not still happening silently. The applicant asked the rhetorical question that if it was possible for her (and her father) to return to Bhutan, why wouldn’t they have done so, given her husband has not seen his parents for 14 years and given her father would have been better looked after in Bhutan by her well-to-do brother than languishing in an aged care facility in Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant and her family members are persons in respect of whom Australia has protection obligations because they are either refugees or persons who satisfy the complementary protection criterion on account of the protection claims raised by the applicant.
The Tribunal has carefully considered the claims raised and the evidence presented by the applicant. The Tribunal has concluded that the decision under review should be affirmed because the Tribunal is not satisfied the applicant and her family members are persons in respect of whom Australia has protection obligations. The Tribunal’s reasons for reaching this conclusion are discussed below.
Identity and country of nationality
The starting point is to determine the applicant and her family members’ country of nationality. The applicant and her family members claim to be citizens of Bhutan. She and each of her family members have provided a certified copy of their Bhutanese passport bearing their claimed full name and date of birth issued by the Foreign Ministry of Bhutan, and a certified copy of their birth certificate, to the Department in connection with their protection visa application. The applicant and her husband have additionally provided certified copies of their Bhutanese citizenship and identity cards, confirmation of Bhutanese citizenship certificates issued by the Bhutanese Department of Civil Registration and Census, and affirmation of marriage certificates issued by the Royal Court of Justice.
In the absence of evidence that the aforementioned documents for which copies were provided to the Department are bogus documents as defined in s 5(1) of the Act, and given checks of relevant departmental systems did not raise concern that the applicant and her family members have given false identities, the delegate has accepted the applicant and her family members’ claimed identities and citizenship of Bhutan.
The Tribunal has considered copies of the aforementioned identity documents on the applicant’s departmental file. The Tribunal has also had regard to the original of the applicant’s Victorian driver’s licence which was sighted at the hearing and a copy of which was provided to the Tribunal. In the absence of evidence that the applicant and her family members are not the persons they claim to be, the Tribunal also accepts their claimed identities and citizenship of Bhutan.
The Tribunal finds the applicant and her family members’ country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act is Bhutan.
Country information
In September 2016, The Diplomat magazine reported that in the 1990s, Bhutan expelled Lhotshampas (which means people from the south), an ethnic group with its origins in Nepal which made up one-sixth of Bhutan’s population, to preserve its unique national character. Changes to Bhutan’s citizenship laws in 1958 and 1985 meant that Lhotshampa residents who could not supply proof that they were Bhutanese residents before 1958, the year when most Lhotshampas were given citizenship, were deemed to be illegal immigrants. Ethnic tensions rose further in 1988, when a census revealed the extent of Nepali-speaking Hindu population in Bhutan (estimated at 28%). With Sikkim’s joining of India in 1975 still fresh on the minds of Bhutanese leaders, the government implemented the ‘One Nation, One People’ policy. Cultural and linguistic restrictions were placed upon Lhotshampas, including the replacement of Nepali with Dzongkha as a classroom language and the requirement for all citizens to follow the national dress code of the Driglam Namzha. Calls for democracy and respect for human rights were termed ‘acts of treason’ and an ‘anti-national movement’, and thousands of Nepali-Bhutanese were arrested, killed, tortured and given life sentences.[1]
[1] Maximillian Morch, ‘Bhutan’s Dark Secret: The Lhotshampa Expulsion’, The Diplomat, 21 September 2016.
The systematic oppression and persecution of Lhotshampas in Bhutan during the 1990s is documented by other international human rights organisations including Human Rights Watch[2] and Amnesty International.[3] A recent article published on 21 March 2024 in the International Journal of Transitional Justice also discusses in detail the history of the forced expulsion of Lhotshampas from Bhutan in the 1990s and the plight of refugees remaining in Nepalese camps who are not able to be repatriated despite Bhutan’s transition from a monarchy to a democracy between 2007 and 2008 and the passage of 30+ years since their forced expulsion.[4]
[2] ‘History of the Bhutanese Refugee Situation in Nepal’, Human Rights Watch, date unknown.
[3] ‘Bhutan: forcible exile’, Amnesty International, 31 July 1994.
[4] Alice Neikirk and Ray Nickson, ‘Transitions without Justice: Bhutanese Refugees in Nepal’, The International Journal of Transitional Justice, Volume 18, Issue 2, July 2024, Pages 267–280.
The US Department of State 2023 Country Reports on Human Rights Practices report that NGOs working on matters related to ethnic Nepalis (which is another term used to refer to Lhotshampas) were not allowed to operate, and the restrictions on the freedom to travel internationally most greatly affect Nepali speakers. Ethnic Nepali residents often could not obtain a police security clearance certificate, which caused difficulties in starting a business, enrolling in higher education, or obtaining passports or government jobs, and the process of registering property could also be lengthy for them.[5]
[5] 2023 Country Reports on Human Rights Practices: Bhutan, US Department of State.
Freedom House made similar reports, adding that a number of political prisoners who were detained before Bhutan transitioned to its current democratic system remain imprisoned. In September 2023, Human Rights Watch reported that Bhutan was holding at least 36 political prisoners who had been detained between 1990 and 2010. The majority of the prisoners belonged to the Nepali-speaking community, were convicted under the vaguely worded National Security Act of 1992, and were subjected to harsh conditions in prison.[6]
[6] Freedom House Freedom in the World Report 2024: Bhutan.
Assessment of refugee status
To be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution in Bhutan, and owing to that fear, is unable or unwilling to avail herself of the protection of Bhutan. This requires the Tribunal to be satisfied that there is a real chance the applicant would suffer serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion, if the applicant returned to Bhutan.
A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
There is no doubt from the country information the Tribunal referenced that Lhotshampas in Bhutan were racially, religiously and politically persecuted in the 1990s resulting in the mass expulsion of thousands and thousands into Nepal and forcing the Nepalese government to seek the assistance of the UNHCR in setting up refugee camps to house the refugees. Over the years, Bhutan’s steadfast refusal to recognise the expelled Lhotshampas as Bhutanese citizens and the consequent impasse with Nepal led to many of the refugees to be resettled in various countries including the US, Canada and Australia in order to try and resolve the refugee situation.
Nevertheless, the applicant’s evidence is that she, her husband and her father were not personally subjected to persecution or otherwise affected by the mass Lhotshampa expulsion of the 1990s (her sons were not yet born at the time), even if her father’s siblings and relatives were. Both the applicant and her husband have recognised Bhutanese citizenship, which is demonstrated by copies of the Bhutanese citizenship and identity cards and confirmation of Bhutanese citizenship certificates issued by the Bhutanese Department of Civil Registration and Census which they provided to the Department.
Moreover, despite some of the discriminatory treatments she described including being made to feel different, both the applicant and her husband were able to study at [College 1] in Thimpu and both were employed in government for 12 years before they came to Australia. Similarly, her father worked for the government for over 35 years, holding the important and senior position of [Position 1] . There is no evidence that they had difficulty obtaining passports or that they experienced restrictions preventing them from travelling internationally. All of the problems that the applicant claimed she, her family members and her father would now experience appear to have only arisen because of the 2014 trip to Adelaide to visit her father’s refugee cousin which the Bhutanese authorities have somehow found out about.
The Tribunal has carefully considered the evidence the applicant gave with respect to the claims relating to the Bhutanese authorities’ discovery of the visit to her father’s refugee cousin and the consequences of that discovery, including the warrant for her father’s arrest and the seizure of her Thimpu apartment resulting in the withdrawal of sponsorship and financial support from her aunt. Whilst the Tribunal finds the applicant to be a credible witness who gave consistent evidence throughout the protection visa application and review processes, the Tribunal does not find her evidence reliable in demonstrating that she and her family members face a real chance of serious harm in Bhutan because of her real and/or imputed anti-government political opinion.
First, the Tribunal notes that the existence of her father’s arrest warrant appears to be based entirely on hearsay rather than any substantial evidence. Some of her father’s friends purportedly found out about the arrest warrant and warned her father, but there is no information as to how these friends found out about it.
With respect to the claim that the arrest warrant was issued because of her father’s suspected anti-government stance arising from visiting his refugee cousin who was one of the many Lhotshampas expelled in the 1990s, there is no reasonable explanation for how the Bhutanese authorities could have found out about the visit, and the Tribunal does not accept the applicant’s theory that the Bhutanese government probably had spies who monitored and reported on the Lhotshampa diaspora. Given the large number of displaced Lhotshampas who were later resettled around the world including in Australia, and having regard to Bhutan’s very small size and limited resources, the Tribunal does not find it plausible that the Bhutanese government sent spies to monitor Lhotshampa refugees overseas and to report on Bhutanese citizens who interacted with them so that those citizens may be arrested and punished upon their return to Bhutan.
Similarly, the Tribunal finds the applicant’s claim that her apartment in Thimpu was seized by the Bhutanese authorities because of her and her father’s visit to her father’s refugee cousin not to be supported by any substantial and reliable evidence. As discussed in the previous paragraph, the Tribunal does not accept that the Bhutanese authorities discovered the visit from spies sent overseas to monitor Lhotshampa refugees. Whatever the reason might be for the seizure of the applicant’s apartment in Thimpu, the Tribunal does not accept that it was on the basis of the applicant and her father’s visit to her father’s refugee cousin in 2014 and finds that the applicant’s stated belief in this regard is based on unsupported speculation which does not discount the possibility that the apartment was seized for other reasons.
Significantly, the Tribunal notes the applicant’s evidence that her brother remains in Bhutan and has apparently been able to live there without problems from the Bhutanese authorities. The Tribunal does not accept the applicant’s explanation that this is because her brother did not do anything wrong himself and because he is shielded from adverse attention due to his marriage to an ethnic Bhutanese woman from a well-to-do family.
If the Bhutanese government genuinely considered any interaction with a Lhotshampa refugee to be a serious and seditious act of treason, however innocuous that interaction is, it seems unlikely that the applicant’s brother could have completely escaped attention and adverse consequence despite his relationship to her and her father, even if he has married favourably.
Moreover, on the applicant’s evidence at hearing that her brother helped her father leave Bhutan, her brother would have been guilty of aiding the escape of an anti-government traitor for whom a warrant has been issued for his arrest, so it is not the case that he has not done anything wrong as the applicant claimed.
Therefore, having considered all of the applicant’s claims and evidence individually and cumulatively, the Tribunal is not satisfied that the applicant is of adverse interest to the Bhutanese government and authorities because of her visit with her father to see his refugee cousin in 2014, and the Tribunal finds there is not a real chance that the applicant and her family members would be seriously harmed in the reasonably foreseeable future on account of her real and/or imputed anti-government political opinion, if they returned to Bhutan.
Further, on the basis that the applicant’s evidence indicates she and her family members have not suffered serious harm in Bhutan because of their Lhotshampa ethnicity/race or because of their Hindu religion, and on the basis that the applicant has not raised fear of serious harm for these reasons on return to Bhutan, the Tribunal finds there is not a real chance that the applicant and her family members would face serious harm because of their ethnicity/race or their religion in the reasonably foreseeable future, if they returned to Bhutan.
Accordingly, the Tribunal finds the applicant and her family members do not have a well-founded fear of persecution in Bhutan qualifying them for refugee status pursuant to the definition of ‘refugee’. The applicant and her family members do not satisfy the refugee criterion in s 36(2)(a) of the Act.
Complementary protection assessment
Having concluded that the applicant and her family members do not satisfy the refugee criterion in s 36(2)(a), the Tribunal has proceeded to consider whether the applicant and her family members may engage Australia’s protection obligations on the basis of complementary protection instead.
To satisfy the complementary protection criterion in s 36(2)(aa), there must be substantial grounds for the Tribunal to believe that, if the applicant and her family members were removed from Australia to Bhutan, there is a real risk that they would suffer significant harm as a necessary and foreseeable consequence of their removal.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
As the Tribunal has found there is not a real chance that the applicant and her family members would suffer serious harm in Bhutan for reason of the applicant’s real and/or imputed anti-government political opinion, or for reasons of their Lhotshampa ethnicity/race or their Hindu religion, it logically follows that there are no substantial grounds for the Tribunal to believe that the applicant and her family members would face a real risk of significant harm as a necessary and foreseeable consequence of their removal from Australia to Bhutan.
Therefore, the Tribunal finds the applicant and her family members are not persons in respect of whom Australia has protection obligations pursuant to the complementary protection obligation in s 36(2)(aa) of the Act.
Other criteria – members of the same family unit
The applicant and her family members have not claimed to be members of the same family unit as another person in respect of whom Australia has protection obligations, and who holds a protection visa of the same class as that applied for by the applicant and her family members.
Given this, and in the absence of evidence before the Tribunal suggesting the contrary, the Tribunal the Tribunal also finds that the applicant and her family members do not satisfy either of s 36(2)(b) or s 36(2)(c) of the Act.
DECISION
The Tribunal affirms the decisions under review.
Jennifer Ermert
General 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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