BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2021] HCATrans 131

[2021] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M9 of 2021

B e t w e e n -

BVT20

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO CONNECTION

ON FRIDAY, 13 AUGUST 2021, AT 2.27 PM

Copyright in the High Court of Australia

GORDON J:   In accordance with the current practice, I will announce appearances.

MR W.G. GILBERT, SC appears with MR M.L.L. ALBERT for the applicant.  (instructed by Clothier Anderson Immigration Lawyers)

MS A.M. MITCHELMORE, SC appears with MS E.S. JONES appears for the first respondent.  (instructed by Australian Government Solicitor)

GORDON J:   I have a submitting appearance for the second respondent.  Mr Gilbert.

MR GILBERT:   Thank you, your Honours.  As your Honours will have seen this is a case which concerns a single issue, a statutory interpretation point, in relation to the context of mental harm.  Three subsections of the Migration Act are involved.  The substantive subsection is 36(2)(aa) which must be read with the definition of “significant harm” in 36(2A) and then again read with the definition of “cruel or inhuman treatment” as defined in section 5.

The combination of these three subsections and the use of different tenses is at the heart of the special leave question.  The findings of the Tribunal are clear.  The outcome of the interpretation is naturally of great significance to the applicant.  However, importantly, it is of wider application.  Just on that point, might I take your Honours to paragraph 96 of the application book which is at page 25 in the Tribunal’s decision.  At page 25, at the bottom, the Tribunal sets out the difficult question for this present purpose.  It says there:

This is an important issue –

the issue being the one we are discussing:

because from time to time claims are made arising from earlier conflicts or persecution in countries where, by the time the matter falls for determination, the circumstances in the country have changed.  In these cases, there may be no or little doubt about the veracity of the claims.  If the applicant has faced physical harm, threats and trauma it is very likely that any psychological harm sustained as a result of the trauma would continue, unless it could be properly treated and resolved, and would be likely to be exacerbated by returning to the place where the trauma originally occurred.

So, in our submission, this is an appropriate vehicle for special leave, not only because of the issue to be determined but the potential breadth in other matters. 

GORDON J:   I think the Court would be assisted by focusing on this question of construction.  Your client needs a substantial extension of time in which to bring the application and, as you know, the merits of the matter are one of the factors in that analysis.  I have not asked Ms Mitchelmore whether she opposes the extension, but I think in the circumstances the Court would be very much assisted by focusing on this question of construction.

MR GILBERT:   Certainly, your Honour.  I am not sure whether it is substantial, it was only a matter of weeks.  The indication in the Minister’s response is that they do not oppose that extension, but I accept that an extension is needed.

Your Honours, the way I propose to deal with that issue is to draw upon the Federal Court – the way in which the Federal Court dealt with the matter because the argument effectively ran through the Federal Court in the same way and the Federal Court succinctly sets out at 79 what the issues were.  I need not repeat those, but there were substantial findings in favour of the applicant at that point in time that are set out.  Here, what the applicant seeks to do is to draw comfort from the ambiguity which the Full Court found on numerous occasions through the ensuing paragraphs.

STEWARD J:   Mr Gilbert, the guts of the Full Court’s reasoning is paragraphs 83 to, really, 86.  What is the error that you say that they made in those paragraphs?

MR GILBERT:   The error that we say, your Honour, is that they were unnecessarily confined to the question of – or the circumstances surrounding the word “is”.  We accept that it was forward looking.  It must be forward looking by definition because one is returning to another country.  But our argument is that there is nothing in any of the legislation, the legislative history or the context which requires an act to continue or to reoccur when the person returns.  So, what the Full Court did, with respect, and because of the ambiguity it found, it went for what it referred to as a better construction or a preferred construction, but it also ‑ ‑ ‑

GORDON J:   Can I identify for you, at least from one analysis of the three provisions which you have helpfully laid out for us - in 36(2)(aa) you have “will suffer significant harm”, which you accept is a forward‑looking exercise reinforced by (2A) which is “will be subjected to cruel or inhuman treatment or punishment”, and then third, in the definition of “cruel or inhuman treatment or punishment” you have a couple of problems, I think, which is I think where Justice Steward is focusing your attention.  You have “an act or omission by which”, and for relevant purposes we can just take the first limb:

severe pain or suffering . . . is intentionally inflicted on a person –

So, it is not just the word “is”, is it?  It is a combination of those three sections interacting and especially the definition itself of “cruel or inhuman treatment or punishment”.

MR GILBERT:   Well, certainly we accept that the use of the present tense in “is” is the matter that causes the greatest construction difficulty.  But the primary or the substantive provision is the one which we rely upon which is where there is a “will suffer” or “will be subjected” and so the question is whether or not the presence of “is” must be transposed to some future date.  We say that that need not be because there is no warrant in the language for that to occur, and that “is” ‑ ‑ ‑

STEWARD J:   Mr Gilbert, assuming you are right – I apologise – are there any findings of fact which would support a conclusion that there was here intentional infliction of severe mental suffering?

MR GILBERT:   The findings of the Tribunal were confined – the findings that were made were certainly ones that surrounded the incident and there were positive and helpful findings for the applicant in relation to that period of time.  The Tribunal, though, because of its interpretation did not effectively look at what was going to occur on the return.  But the way in which we seek to approach it is that there needs to be an act, and there also can be an omission, and so something which did not receive separate and direct attention by the Full Court was the question of an omission. 

What we would say is that once a threat has been made it can continue until such time as it is withdrawn.  So, there was no evidence that – and certainly in the mind of the applicant at returning to Fiji, from his perspective, unless there was evidence that the threat had been withdrawn, then ‑ ‑ ‑

GORDON J:   Is that right, Mr Gilbert?  I had read paragraph 78 to say:

The second point is that, contrary to –

your submissions:

the Tribunal did not accept that the threat made to the appellant was “continuing”.

MR GILBERT:   There was certainly a debate because there was a paragraph which said that it was open – the threat was open ‑ ‑ ‑

GORDON J:   Paragraph 94 – it is all set out in paragraph 78.

MR GILBERT:   Of the judgment, your Honour?

GORDON J:   Of the Full Court’s judgment.

MR GILBERT:   Yes, because certainly the applicant below was seeking to argue that that phrase meant it was continuing, but the Full Court soundly found against the applicant in relation to that.  The Tribunal just prior to that had said that they accepted that the threat was open‑ended and so if there is an open‑ended threat that, by definition, means one which has not ended.  So how we put that aspect is that if there is an omission, that is the omission is an action which does not call to an end that threat, that open‑ended threat is quite capable of continuing.  That is how we put that matter.

We add to that the fact that the explanatory memorandum provides no assistance.  The international instruments provide no assistance.  But, nevertheless, the Full Court drew on that legislative history which we would submit had no influence on it at all.  Because the legislation is protective, we seek to draw in aid those authorities where given the significant ambiguity that the Full Court itself found, that can result or should result in favour of a more generous interpretation of this provision.  That is how we put the case.

GORDON J:   Is there anything else you wish to put, Mr Gilbert?

MR GILBERT:   No, they are the matters that encapsulate our submissions, your Honours.

GORDON J:   Thank you.  We do not need to hear from you, Ms Mitchelmore.

The Court is of the view that it sees no reason to doubt the Full Court of the Federal Court’s construction of section 36(2)(aa) of the Migration Act 1958 (Cth) when read with section 36(2A) and the definition of “cruel or inhuman treatment or punishment” in section 5(1). The application for special leave to appeal is refused.

Do you seek costs, Ms Mitchelmore?

MS MITCHELMORE:   Yes, your Honour.

GORDON J:   Do you oppose that, Mr Gilbert?

MR GILBERT:   No, your Honour.

GORDON J:   With costs.  Thank you for your assistance.

AT 2.39 PM THE MATTER WAS CONCLUDED