BCZ17 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCZ17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3033

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal misapprehended the definition of significant harm.

Legislation:
Migration Act 1958, ss.5, 36(2A)

Cases cited:

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

Applicant:

BCZ17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 542 of 2017

Judgment of:

Judge Riley

Hearing date:

16 October 2018

Date of last submission:

16 October 2018

Delivered at:

Melbourne

Delivered on:

16 October 2018

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Advocate for the first respondent:	Jarrod Blusztein
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

Clayton Utz Lawyers

ORDERS

The decision of the Administrative Appeals Tribunal made on 14 February 2017 in matter number 1602780 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs of the proceeding by paying:
(a)$615 to the applicant on account of the filing fee he has paid; and
(b)$735 to the court on account of the setting down fee that the applicant should have paid.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 542 of 2017

BCZ17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

Introduction

This is an application for review of a decision of the Administrative Appeals Tribunal. The applicant applied for a protection visa. He is a citizen of Malaysia. The delegate refused the application on the basis that Malaysia was able to offer the applicant protection.
The applicant, at the time of the Tribunal’s decision, was 23 years old. He claimed that he had been harmed by his stepfather as a child and as a teenager. He said that his stepfather had:
a)hit his hand with a stick a number of times causing it to bleed;
b)threw a baby’s urine pan at him when he was 15 years old which caused him to have four stitches in his head;
c)slapped him; and
d)forbade him from leaving the house.
The Tribunal expressly accepted that the applicant’s stepfather had acted in those ways. The Tribunal did not expressly accept that the applicant’s hand was caused to bleed. However, the applicant made that claim, and the Tribunal did not reject it. In the circumstances, the Tribunal implicitly accepted the claim that the applicant’s stepfather hit him with a stick and thereby caused his hand to bleed.
The Tribunal concluded that there was no nexus between the harm suffered by the applicant and the Refugee Convention. The Tribunal considered that, as the applicant is now a young healthy adult of above average build, if the past harm were to be repeated, it would not amount to significant harm.
The applicant appeared before the court today without the benefit of legal representation. His application to the court also appears to have been drafted without the benefit of legal representation.
The first ground in the application is that the applicant could obtain supporting documents from his country, being Malaysia. However, the applicant told the court today that he could not find any documents to support his claim because the events occurred so long ago. These circumstances are not indicative of jurisdictional error.
The second ground in the application is No good in English. Interpreter is difference mind with me. When asked to explain this ground, the applicant told the court that what he had wanted to express at the Tribunal hearing was not expressed very clearly. When asked what he had wanted to say that the interpreter did not say clearly, the applicant told the court that he knows protection visas do not include family violence, but he hopes that the court could give him another chance.
Although given an opportunity to explain what the difficulties with the interpretation at the Tribunal hearing might have been, the applicant was not able to identify anything. There is nothing in the Tribunal’s reasons for decision, or in the court book generally, that supports a claim that the interpretation at the Tribunal hearing was inadequate in any way. There is no basis upon which the court could accept that the Tribunal made a jurisdictional error as a result of inadequate interpretation.
The next ground in the application is that the Tribunal has a preconception. When asked to explain this ground, the applicant said that he was unable to tell the court what he meant. This ground potentially raises issues of bias. However, there is an insufficient basis for the court to consider that there may have been actual bias or a reasonable apprehension of bias in this case.
The next ground in the application is that the Tribunal need to reviewed my Protection Visa refusal. The Tribunal did review the protection visa refusal. There is no substance to this ground.
I was troubled by paragraph 14 of the Tribunal’s reasons for decision. That paragraph reads as follows:
I have taken into consideration the applicant being a young, healthy adult of above average build and find that the harm that had occurred in the past was it to be repeated in the reasonably foreseeable future would not amount to significant harm.
The Tribunal did not explain its reasoning process. Subsection 36(2A) of the Migration Act 1958 (“the Act”) defines significant harm as follows:
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.
There was no suggestion in this case that the applicant will be arbitrarily deprived of his life. There was no suggestion that the death penalty will be carried out on him. However, there was potentially a claim that the applicant will be subjected to torture as, on the facts found by the Tribunal, the applicant had been hit with a stick on the hand causing it to bleed, was hit in the head with an object requiring him to have four stitches and was slapped.
Section 5 of the Act sets out the definition of torture as follows:
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.
The Minister did not submit to the court that the treatment of the applicant by his stepfather arose from, was inherent in or was incidental to a lawful sanction that was not inconsistent with the Articles of the Covenant[1].
[1] The Covenant is defined in s.5 of the Act to mean the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.
It is certainly arguable that an assault that causes bleeding or that causes stitches to be required would amount to severe pain or suffering. The conclusion that the stepfather inflicted the pain or suffering on the applicant intentionally seems unavoidable.
Paragraph (a) of the definition does not apply, as there is no reason to suppose that the step-father’s purpose was to obtain a confession.
Paragraph (b) of the definition appears to apply in this case, because the stepfather’s actions were presumably punitive.
Paragraph (c) of the definition appears to apply in this case, because the stepfather was presumably intending to intimidate or coerce the applicant.
Paragraph (d) of the definition does not add anything in the present case.
Paragraph (e) of the definition appears to have no application to the present case.
The definition of cruel or inhuman treatment or punishment is set out in s.5 of the Act, which is as follows:
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.
The Minister did not submit to the court that the stepfather’s actions in this case were not inconsistent with Article 7 of the Covenant and the Minister did not submit that the actions of the stepfather were lawful sanctions that are not inconsistent with the Articles of the Covenant.
As I have said, it is certainly arguable that the actions of the stepfather caused the applicant severe pain or suffering, as those terms would normally be understood, and that those actions were intentional.
Degrading treatment or punishment is defined in s.5 of the Act as follows:
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.
Again, the Minister did not submit that the stepfather’s acts were not inconsistent with Article 7 of the Covenant or arose from, were inherent in or were incidental to a lawful sanction that was not inconsistent with the Articles of the Covenant. However, it seems to me that the stepfather’s acts, particularly the throwing of a baby’s urine pan at the applicant, while possibly humiliating, are unlikely to have caused extreme humiliation.
In summary, it seems to me that the Tribunal, having accepted that the stepfather perpetrated various assaults on the applicant, did not explain why a repeat of those assaults in the future would not amount to significant harm. Having examined the definitions of torture and cruel or inhuman treatment or punishment in s.5 of the Act, it seems to me that the actions of the applicant’s stepfather that were accepted by the Tribunal could readily amount to significant harm as defined. In other words, it is not self-evident that the actions accepted by the Tribunal, if repeated, would not amount to significant harm.
The Minister argued that the applicant would not suffer significant harm if he returned to Malaysia because he could relocate. That may be so. However, that was not what the Tribunal said. The Tribunal said that a repeat of the harm suffered by the applicant, including being hit with a stick causing his hands to bleed and being hit in the head with an object causing him to need four stitches, would not amount to significant harm.
The Minister argued that, reading the Tribunal’s decision as a whole, the court should conclude that the applicant was unlikely to be mistreated in the way he had been as a child as he is now a young, healthy adult of above average build. That submission invites impermissible merits review. Moreover, the submission does not reflect the Tribunal’s reasoning process. The Tribunal concluded that, if the harm the applicant had endured in the past were to be repeated, it would not amount to significant harm. That harm required the applicant to have stitches and included him being beaten until his hand bled.
The Minister also submitted that, if the harm were repeated, it would not amount to significant harm, because the applicant is an older gentleman now. It seems to me that it is at least arguable that assaults that cause bleeding or that cause injury requiring four stitches would fall within the definition of significant harm.
It seems to me that the Tribunal must have misapprehended the definition of significant harm to consider, without explanation, that a repeat of the stepfather’s behaviour would not amount to significant harm.
Consequently, I consider that there has been a jurisdictional error in this matter. It will be remitted to the Tribunal for determination according to law.
Since orally delivering substantially the above reasons, the recent Full Federal Court decision in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 has come to my attention. In that decision, at [72], the Full Court addressed the task the Tribunal is required to perform when considering whether an applicant faces a real risk of significant harm as follows:
The task is unlikely to be performed according to law by a summary and formulaic finding such as that made by the Tribunal in its reasons and which we have extracted at [63]-[64] above. The Tribunal was not only required to determine the appellant’s contentions about a risk of torture. The Tribunal was required to decide whether it was satisfied there was a real risk the appellant would suffer “degrading treatment”, and to undertake that task it needed to understand what degrading treatment was in the statutory context, and then by reference to the evidence and material before it, explain why it did or did not consider that that was the kind of treatment the appellant had a real risk of facing if he were to be remanded for a period of several days, including determining whether there was an “actual subjective intention” to inflict degrading treatment, or cruel and inhuman treatment.
AVQ15 fortifies me in the conclusion that I expressed orally that the Tribunal’s handling of the question of significant harm was inadequate.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 25 October 2018

[2018] FCCA 3033

16 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction