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:
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
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.
On 18 December 2014, the Appellant’s Transitional visa was cancelled under s 501(3A) of the Act…
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- AGLC
- AWC21 v MHA [2022] FCA 1568
- Case
- [2022] FCA 1568
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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