AWC21 v MHA

Case [2022] FCA 1568

FEDERAL COURT OF AUSTRALIA

AWC21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1568

Appeal from: AWC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 90
File number: VID 608 of 2021
Judgment of: HESPE J
Date of judgment: 22 December 2022
Catchwords: MIGRATION – appeal from Federal Circuit and Family Court of Australia – where Administrative Appeals Tribunal (Tribunal) affirmed decision to refuse to grant Appellant a protection visa under complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (Act) – whether harm following removal from Australia would amount to “significant harm” under s 36(2A) of the Act – consideration of intentionality requirement for “cruel or inhuman treatment or punishment” as defined in s 5 of the Act
Legislation: Migration Act 1958 (Cth) ss 5, 5H, 36, 65
Cases cited:

Afu v Minister for Home Affairs [2018] FCA 1311

CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089

CSV15 v Minister for Immigration and Border Protection [2018] FCA 699

EZC18 v Minister for Home Affairs [2019] FCA 2143

GLD18 v Minister for Home Affairs [2020] FCAFC 2

SZDCD v Minister for Immigration and Border Protection [2019] FCA 326

SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 39
Date of hearing: 30 November 2022
Counsel for the Appellant: Mr G Lake
Counsel for the First Respondent: Mr J Barrington
Solicitor for the First Respondent: The Australian Government Solicitor
Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 608 of 2021
BETWEEN:

AWC21

Appellant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

HESPE J

DATE OF ORDER:

22 DECEMBER 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the First Respondent’s costs, to be assessed on a lump sum basis, if not agreed.

3.The name of the First Respondent be amended to the “Minister for Immigration, Citizenship and Multicultural Affairs”.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

HESPE J:

  1. This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Circuit Court), dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of the Minister’s delegate under s 65 of the Migration Act 1958 (Cth) (the Act) to refuse to grant the Appellant a Temporary Protection (Subclass 866) visa.

    BACKGROUND

  2. The Appellant is a citizen of Italy and arrived in Australia with his family on 5 July 1990.  In September 1994, the Appellant was granted a Transitional (Permanent) (Class BF) visa.

  3. On 18 December 2014, the Appellant’s Transitional visa was cancelled under s 501(3A) of the Act…

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Details
AGLC
AWC21 v MHA [2022] FCA 1568
Case
[2022] FCA 1568
Decision Date

CaseChat Overview and Summary

In the case of AWC21 v MHA, the Appellant contested the Federal Circuit and Family Court of Australia's decision to affirm the Administrative Appeals Tribunal's (AAT) refusal to grant him a protection visa under the complementary protection criterion outlined in section 36(2)(aa) of the Migration Act 1958 (Cth). The central dispute involved whether the harm the Appellant anticipated experiencing if removed from Australia would qualify as "significant harm" as defined in section 36(2A) of the Act and if it constituted "cruel or inhuman treatment or punishment" under section 5. The Appellant, an Italian national, had previously been granted a bridging visa and argued that he would face significant harm if returned to Italy due to his mental health condition and potential alcohol abuse without access to appropriate medication.

The primary legal issue before the court was whether the Tribunal had erred in its conclusion that the risk of self-inflicted harm, which the Appellant cited, did not qualify as significant harm under section 36(2A) of the Act or as "cruel or inhuman treatment or punishment" under section 5. The court needed to determine if the Tribunal had correctly interpreted the statutory definitions and whether it had overlooked any relevant considerations. The Appellant argued that the Tribunal's decision did not adequately weigh the potential for severe mental health deterioration and self-harm upon his return to Italy, especially given his past history of alcohol abuse and lack of Italian language skills.

The court found that the Tribunal had not made any jurisdictional error in its assessment. It held that the risk of self-inflicted harm did not amount to significant harm as contemplated by the Act. The court reasoned that the statutory definitions required more than mere potential harm; they necessitated a specific level of severity and intentionality. The Appellant's case did not meet these criteria, particularly in terms of the intentionality requirement for "cruel or inhuman treatment or punishment." The court also considered the Appellant's bleak prospects in Italy, including his mental health challenges, lack of language proficiency, and risk of relapsing into alcohol abuse. Ultimately, the court dismissed the appeal, stating that the Appellant could still seek relief through the general ministerial discretion under sections 351 or 417 of the Act.

The court ordered that the appeal be dismissed, that the Appellant pay the First Respondent's costs, and that the name of the First Respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs." The costs were to be assessed on a lump sum basis unless otherwise agreed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Appellant pay the First Respondent’s costs, to be assessed on a lump sum basis, if not agreed.

3. The name of the First Respondent be amended to the “Minister for Immigration, Citizenship and Multicultural Affairs”.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There was no jurisdictional error on the part of the Tribunal in concluding that the risk of the type of self-inflicted harm upon which the Appellant relied was not a risk of significant harm for the purposes of s 36(2A) and did not constitute “cruel or inhuman treatment or punishment” as defined in s 5 of the Act.CONCLUSION The Appellant’s appeal must be dismissed. The First Respondent is entitled to costs, to be assessed on a lump sum basis, if not agreed. As the primary judge noted, the Appellant’s prospects if returned to Italy are bleak, given his mental illness, lack of Italian language skills and reversion to alcohol abuse if not appropriately medicated. I reiterate the observation of the primary judge that it remains open to the Appellant to make a request for the exercise of the general ministerial discretion under s 351 or s 417 of the Act.

Ratio Decidendi

Legal Principle Established

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