JXA24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1222
•1 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
JXA24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1222
File number(s): PEG 445 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 1 August 2025 Catchwords: MIGRATION – Protection (Subclass 866) visa – whether the Tribunal made a jurisdictional error by dismissing the applicant’s claims in the absence of supportive country information – whether the Tribunal erred in finding that the applicant would not suffer harm – whether the Tribunal failed to consider the nature of the applicant’s claim – whether the Tribunal failed to adequately consider the seriousness of the offences under Bhutanese law – grounds of judicial review have no merit – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5J, 36, 424A, Division 4, Part 7. Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 23 July 2025 Place: Parramatta Solicitor for the Applicant: Self-Represented Litigant Solicitor for the First Respondent: Mr Mayne, Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 445 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JXA24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
1 AUGUST 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Review Tribunal (the Tribunal), dated 23 October 2024, affirming a decision of a delegate of the first respondent (the delegate) to refuse the applicant a Protection (Subclass 866) visa (the visa).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicant is a citizen of Bhutan. On 5 September 2014, the applicant arrived in Australia on a student visa with his wife.
On 9 June 2016, the applicant and his wife applied for the visa. The applicant and his wife have two children, born in July 2017 and April 2020, respectively.
On 7 February 2020, the applicant attended an interview with a Department officer. The delegate refused to grant the visa to the applicant and his wife on 7 September 2022.
On 2 October 22, with the assistance of a representative, the applicant and his family applied to the Administrative Appeals Tribunal (AAT) for review of the delegate’s decision.
The applicants were invited for an interview with the AAT on 3 October 2024, which they attended.
On 23 October 2024, the delegate’s decision was affirmed.
THE TRIBUNAL’S DECISION
At the Tribunal, the applicant was referred to as ‘CW’ and his wife as ‘DP’.
The claims for protection relate to CW’s previous knowledge and association with a person who had escaped from Bhutanese authorities 30 years prior. The applicant fears prosecution and harm by the Bhutanese authorities while in custody.
The applicant’s claims for protection are contained in a separate document to his protection visa application, and were summarised by the Tribunal at [8] – [14]:
·In September 2005, CW travelled to Nepal and commenced tertiary studies at Indira Gandhi National Open University (IGNOU).
·Whilst looking for work, CW met ‘KD’, the principal of a school in Nepal. CW claims he was ‘instantly close’ to KD. CW was offered a job as a schoolteacher while he continued to study.
·After working with KD, CW ‘came to know’ that KD had escaped from prison in Bhutan and fled to Nepal. CW confronted KD about this, who confirmed this information was true, but KD claimed that he had been unjustly imprisoned. KD told CW about hiring a van for men who then used the van to commit various crimes. KD told CW that he escaped with those men to Nepal before their trial.
·CW believed in KD and stayed in Nepal for a few years to help him run the school.
·CW claimed that he ‘very recently’ received information that the Royal Bhutan Police (RBP) had deployed a search party to look for him. CW discovered that KD had lied to him and had stolen antiques from a temple with accomplices for financial gain. KD was convicted in June 1994 and sentenced to life imprisonment. KD escaped this sentence in 1994.
·CW claimed that the RBP was aware that he worked with KD, and was looking for him because of his failure to report KD to the authorities. CW claimed that he may be charged with an offence under the Penal Code of Bhutan.
·CW produced a document purportedly from the Royal Bhutan Police dated 23 May 2016, addressed to his father, and signed by a person purporting to hold the rank of Major in the RBP, the document stated:
This is to inform you that we are looking for your son Mr.CW, CID no- XXX, Passport no YYY, 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.
At [16], the Tribunal included a summary of the written submissions provided by the applicant on 17 September 2024 in response to the findings made by the delegate, which is as follows:
(a)the conclusion that he was the principal of the English school was wrong, as his ID card clearly states that he was a teacher;
(b)the different phone numbers and logos appearing on CWs 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 CWs 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.
At the Tribunal hearing, only the applicant attended to give evidence and present arguments. The applicant did not seek for the Tribunal to take evidence from any witnesses. The applicant told the Tribunal that he feared the RBP would torture him, despite the Tribunal not being aware of any country information indicating this. The Tribunal indicated it would provide the applicant with additional time to provide any country information he wished to rely on to support that claim.
On 11 October 2024, the applicant provided photographs and a ‘charge sheet’ for KD, which contained particulars that match those in the image [24].
In assessing the claims for protection, the Tribunal had to determine whether the applicant satisfied the refugee criterion. In relation to the claim surrounding the applicant’s association with KD, the Tribunal accepted and made the following findings at [34] and [35]:
34.I am prepared to accept that KD escaped the custody of the Bhutanese authorities on two occasions, in 1994 and 1995 and fled to Nepal, where he has remained ever since. I am also prepared to accept that KD became the Principal of an English language school in Nepal and that CW worked for that school between 2008 and 2014. I am prepared to accept that KD misled CW regarding the circumstances of his departure from Bhutan and that, at some stage later, CW became aware that KD was generally a fugitive from the RBP and Bhutan.
35.I am prepared to accept that the RBP has expressed a desire to interview CW and that this will relate to his involvement with KD during his time in Nepal. I am also prepared to accept that CW may be charged with an offence under Nepalese law for failing to report KD's whereabouts.
The applicant fears being charged with an offence under Section 428 of the Penal Code of Bhutan, which is classified as a ‘petty misdemeanour’ [38], carrying a maximum term of imprisonment of less than one year and a minimum term of one month, with various alternative sentences available.
The Tribunal was prepared to assume that there would be an arguable case that, at some stage, the applicant would have aided RBP in bringing about the capture of KD.
The Tribunal dealt with the applicant’s claims in turn and made the following findings in considering the applicant’s claimed risk of torture or physical harm by police whilst in police custody:
·The applicant did not raise the prospect of being tortured whilst in police custody until the Tribunal hearing. The Tribunal gave the applicant time to provide country information to support his claim. Although the applicant provided additional evidence, he did not provide country information to support his claims [42] – [42].
·The Tribunal noted that it could not locate information which spoke to the effect that persons suspected of committing offences under the Penal Code were regularly, or even rarely, subjected to physical harm or torture in Bhutan. The Tribunal was prepared to accept that there was evidence of political prisoners in Bhutan being tortured [44].
·In considering that KD was accused of stealing antiques, the Tribunal considered that there was no evidence to suggest that KD or the applicant were a political opponent of the Bhutanese government. The Tribunal was not satisfied that either KD or the applicant would be imputed to be political opponents of the Bhutanese regime [45].
·The Tribunal was not satisfied that in the course of investigating or questioning the applicant about his relationship and involvement with KD, there would be a real chance of him being physically harmed or tortured, and any such risk is speculative and remote [46]. The Tribunal considered the applicant’s current disposition towards KD and was satisfied that the applicant would provide information about KD and knowledge of KD’s last known whereabouts. This would further reduce the remote prospect of the applicant being physically harmed or tortured in police custody.
·The Tribunal did not accept that the applicant faced a real chance of serious harm whilst in police custody and clarified that it did not accept that being detained for a period of time in police custody whilst being questioned constituted serious harm. It had regard to the deprivation of CW’s liberty and whether it gave rise to a well-founded fear of persecution.
The Tribunal considered the applicant’s potential exposure to investigation, prosecution and potential imprisonment for criminal offences. The Tribunal was not satisfied that the risk of being charged with an offence under s 428 of the Penal Code constituted persecution within the meaning of the Migration Act 1958 (Cth)(the Act), as such an action under s 428 of the Penal Code against the applicant would not involve systematic and discriminatory conduct within the meaning of s 5J(4)(c). The Tribunal considered that a generally applicable criminal law may amount to persecution within the meaning of s 5J(1)(a), depending on how it is implemented or enforced. The applicant had only stated that the law would be applied to him, not necessarily in a discriminatory manner.
The Tribunal ultimately held at [51] that even if the RBP were to investigate the applicant as claimed, it would not be for the reason of his race, religion, nationality, membership of a particular social group, political opinion or be motivated by systematic and discriminatory conduct.
The Tribunal was satisfied that s 428 of the Penal Code does not result in discriminatory treatment and that the law is legitimate and necessary for Bhutan’s legitimate interests. The Tribunal was not satisfied that the code would be enforced in a persecutory manner regarding the applicant. At [53], the Tribunal did not accept that the applicant would be persecuted if he returned to Bhutan, and was satisfied that the laws he would be exposed to were of general application.
The applicant claimed that if he were to be charged, convicted and sentenced for an offence under the Penal Code, he would experience stigma and ostracism within his local community. The Tribunal was prepared to accept that it would likely become known in his local community that he had been convicted of an offence and spent time in prison. However, the Tribunal was not satisfied that this would result in the applicant experiencing serious harm, or that it would involve a threat to his life or liberty, or that it would result in significant physical harassment or ill-treatment. Nor would it result in significant economic hardship that would threaten the applicant’s capacity to subsist, or in the applicant being denied access to services or capacity to earn a livelihood. The Tribunal was not satisfied that the applicant would face a real chance of serious harm as a result of any stigma or ostracism because he was a convicted criminal, if he was charged and convicted [56] – [57].
The Tribunal was not satisfied that the applicants satisfied the refugee criterion in s 36(2)(a).
The Tribunal proceeded to consider whether the applicant satisfied the complementary protection criterion, considering whether there would be a risk of harm occasioned by any of the following claims. The Tribunal made the following findings:
·The Tribunal was not satisfied that the applicant faced a real chance of harm whilst in police custody, other than potentially being deprived of his liberty if sentenced to a term of imprisonment. Further, the Tribunal was not satisfied that, as a consequence of being removed from Australia to Bhutan, there is a risk that the applicant would suffer significant harm in the form of torture or physical harm whilst in police custody [62] – [63].
·The Tribunal separately considered whether the deprivation of the applicant’s liberty, be it during questioning, pre-trial procedures or during a sentence of imprisonment, would involve the applicant facing a real chance of significant harm. The Tribunal was not satisfied that the conditions that the applicant 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 [70].
·The Tribunal found that the applicant did not face a risk of significant harm that would be occasioned by stigma and ostracism. The Tribunal considered that if stigmatisation and ostracism were to occur, it would not ‘involve a level of humiliation to the [applicant] such that it would transgress the inevitable element of suffering, connected to persons who have experienced legitimate criminal sanctions or punishment’ [71]. The Tribunal did not accept that the applicant’s other family members would face a risk of significant harm on the basis of their association with KD. The Tribunal was 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 [72].
The Tribunal found that the applicant(s) did not satisfy the criterion in s 36(2)(aa) and affirmed the decision under review [78].
GROUNDS OF JUDICIAL REVIEW
The applicant’s initial grounds of judicial review are contained in an Originating Application filed with the Court on 19 November 2024. The grounds are as follows:
1.The Tribunal member made a jurisdictional error when it dismissed the claim of police brutality merely because the member could not find any country information.
Some country information which are evidence of police brutality has been attached with the affidavit of the Applicant.
2.The Tribunal member also made a jurisdictional error when the member found that the Applicant will not suffer harm due to social stigma without any basis to support its finding.
Despite Court orders that the applicant was to file any written submissions and material in support of his case 14 days prior to the hearing, the applicant lodged material with the Court two days prior. That material included two new grounds. The first respondent did not object to the late filing of the material. Accordingly, leave was granted to rely upon two new grounds of judicial review. They are as follows:
3.Failure to consider the nature of the offence and its political implications.
4.Failure to adequately consider the seriousness of the offences under Bhutanese law.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not require an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been provided to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing, should he so wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Included in an Affidavit affirmed by the applicant on 18 November 2024 were two media articles that related to alleged human rights violations in Bhutan. These articles were not before the Tribunal, and accordingly, the Court placed no weight on those articles.
The applicant’s written submissions only addressed grounds three and four. In relation to ground three, it was submitted that the antiques stolen by KD were not merely antiques, they were religious scripts that held cultural and spiritual significance in Bhutan.
Thus, the theft was not an ordinary criminal offence, but one with political and cultural implications. In Bhutanese society, where religion is intertwined with politics and viewed as equally important, the stealing of religious relics can be regarded as an act against the state or the nation’s cultural identity.
An offender, in relation to these types of offences, will be subject to treatment comparable to that of political prisoners, potentially including torture. The applicant submitted that the Tribunal’s failure to address this constituted a failure to properly assess his well-founded fear of serious harm if returned.
Regarding ground four, the applicant stated that he may be held liable for aiding KD in transiting between Bhutan and Nepal. The applicant claimed that he was at risk of being charged under s 418 of the Bhutanese Penal Code, which deals with injuring a prosecution, including assisting a person who is being sought by law enforcement officials. The Tribunal’s failure to appreciate this constituted a jurisdictional error.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. The applicant answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent tendered to the Court, without objection, a copy of the Penal Code of Bhutan, annexed to the Affidavit of Ms Ismailjee, sworn on 22 July 2025 which was marked as Exhibit 3.
In relation to ground one, the Tribunal did not simply “dismiss” the applicant’s claim of “police brutality”. To the extent that the applicant is referring to the Tribunal’s decision, where it said at [44] that it was unable to locate any country information that suggests that persons suspected of committing offences under the Penal Code were subjected to either harm or torture, the Tribunal’s reasons must be read as a whole.
Despite having put the applicant on notice of that issue and allowing him further time to provide post-hearing material, he did not provide any country information to support that claim.
The Tribunal’s non-satisfaction of the claim that the applicant faced a real chance of serious harm while in police custody was based on the following, which was submitted as a logical and probative passage of reasoning: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131], [135]:
(a)The Tribunal was unable to locate any country information to support the assertion that the applicant would be at risk. This implies that the Tribunal undertook searches for information about this, particularly where there was no country information report at the time it made its decision. This inference can also be drawn in circumstances where the Tribunal accepted that political prisoners in Bertin were tortured, with a Human Rights Watch article citing this at [44].
(b)There was no evidence or suggestion that the applicant’s or KD’s offences were of a political nature, or that they would be imputed as opponents of the government.
(c)The applicant had not been involved with KD for approximately 10 years. The applicant did not have any feelings of loyalty to KD and would willingly provide information to authorities about KD. Any risk of being harmed or tortured was ‘speculative and remote’ [46].
Contrary to ground two, the Tribunal’s lack of satisfaction that the applicant would face a real chance or real risk of serious harm by reason of social stigma was permissible, especially when it had regard to the requirements under s 5J and s 36 of the Act.
In relation to ground three, there is no evidence to support these arguments. It was not the role of the Tribunal to make the applicant’s case for him, particularly in circumstances where the applicant was allowed to make post-hearing submissions.
In relation to ground four, the applicant has not suggested that he stole or sold the antiques stolen by KD. Rather, the applicant suggested he could be liable for ‘assisting’ KD. This is covered by s 418 of the Bhutan Penal Code, and carries the same penalty as s 428, being a petty misdemeanour. If there was any failure to refer to s 418, then that failure was not material as the offence carries the same penalty as s 428.
Lastly, although not specifically raised, the respondent submits that the Tribunal complied with its exhaustive procedural fairness obligations set out in Division 4, Part 7 of the Act. The applicant was properly invited to attend the hearing. The Tribunal also permitted the applicant to provide post-hearing material. There was no information that was required to be put to the applicant for comment upon or response under s 424A, as the information the Tribunal relied upon in making its decision was the written information and oral evidence the applicant had provided to the Department, and his documentary and other evidence, all of which were exempt under s 424A(3) of the Act.
At [35], the Tribunal made reference to the applicant being charged under Nepalese law. This is factually incorrect as the applicant’s fears related to being charged under the criminal law of Bhutan. No jurisdictional error arises from this factual error by the Tribunal.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348
It is well settled that country information and the weight given to that information is a matter for the Tribunal: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.
It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
It was for the applicant to provide his evidence and arguments in sufficient detail to enable the tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82].
First, the Court is satisfied that the Tribunal complied with all procedural fairness requirements. The applicant was properly invited to attend the hearing, and he did so. The Tribunal also invited the applicant to provide post-hearing submissions. The Court is unable to detect any failure on the part of the Tribunal to act in accordance with its procedural fairness obligations.
Ground One
Ground one is a claim that the Tribunal made a jurisdictional error when it dismissed the applicant’s claims of police brutality on the basis that it was unable to find any country information. The Court is satisfied that at [44], the Tribunal noted that there was no DFAT country information report available to it, which suggested that a person suspected of criminal offences faced a real chance of being harmed in police custody or being tortured. The applicant did not provide any country information to support this claim. It is undoubtedly clear that the Tribunal did undertake research into these claims, as it referenced a Human Rights Watch article of July 2024.
The Court accepts the first respondent’s submissions that there was no evidence that the applicant would be classed as a political prisoner. The applicant did not provide any evidence, other than bare assertions, that the stealing of antiques would be regarded as a political offence or opposition to the Bhutanese government. Further, the only admissions made by the applicant are that he assisted the actual perpetrator after the event. At its highest, the applicant may have committed a petty misdemeanour under Bhutanese law. Ground one has no merit.
Ground Two
Ground two is a claim that the Tribunal erred in finding that the applicant would not suffer harm due to the social stigma if he were convicted of an offence. The applicant did not provide any evidence in support of this claim, and the Tribunal properly considered this issue at [56] – [57] of its decision. This conclusion was open to the Tribunal based on the limited evidence that was before it and for the reasons it gave. The finding is not legally unreasonable. Ground two has no merit.
Ground Three
Ground three is a claim that the Tribunal failed to consider the nature of the offence and its political implications. There was simply no evidence before the Tribunal to support this assertion. The applicant had an opportunity to give evidence and present submissions before the Tribunal. The applicant was also given the opportunity to make post-hearing submissions. The Court agrees with the first respondent’s submission that the Tribunal was not required to make the applicant’s case for him. As set out above, the duty of the Tribunal was to review the decision that had been made. The Tribunal’s duty is to review and not to inquire. Ground three has no merit.
Ground Three
Ground four is a claim that the Tribunal failed to adequately consider the seriousness of the offences under Bhutanese law. At its highest, and accepting the applicant's assertions that he could be found guilty of “assisting” KD and that the applicant could be liable to prosecution under s 418 and/or s 428 of the Bhutanese Penal Code, these offences are graded as petty misdemeanours. The Court is satisfied that the Tribunal did appreciate the seriousness of these offences. The Tribunal specifically set out s 428 at [37] of its decision record and considered the possible exposure of the applicant to serious harm or persecution if he were arrested, charged and convicted. There is nothing irrational, illogical, or legally unreasonable in the conclusion arrived at by the Tribunal. The failure to specifically reference s 418 is of no consequence, and it is not a material error. Ground four has no merit.
As the applicant is unrepresented, the Court has carefully considered the relevant Court book and associated papers, however, it is unable to detect any unarticulated jurisdictional error.
DETERMINATION
In these circumstances, the application must be dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 1 August 2025
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