CAC19 v Minister for Home Affairs
[2019] FCCA 3336
•22 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAC19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3336 |
| Catchwords: MIGRATION – Application for judicial review of AAT decision – whether Tribunal erred in failing to deal with relevant country information – whether Tribunal erred in its construction of SZRSN v Minister – whether SZRSN wrongly decided – criticism not made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6 |
| Applicant: | CAC19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1534 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 3 October 2019 |
| Date of Last Submission: | 3 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 22 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Albert |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1534 of 2019
| CAC19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
By an amended application, dated 20 September 2019, the applicant seeks judicial review of a decision of the second respondent. The Tribunal, by a decision dated 15 February 2017, affirmed a decision of a delegate of the first respondent not to grant the applicant and his wife protection visas. The wife’s application was wholly ancillary to that of the applicant in this case and need not be further considered.
The applicant has pressed grounds 1 and 2 in the application. I note that ground 3 was made only formally and will not require further consideration. I further note that a potential conflict in Full Court and the Federal Court authority, referred to in Judge Riethmuller’s earlier interlocutory proceeding, was not pressed before me. Finally, I should note that the applicant’s application for an extension of time was not opposed and, accordingly, was granted.
Ground 1
The Tribunal erred in its statutory task in that it did not ‘deal with’ country information relating to Decree 33 of Nigeria, by which Nigerian returnees who have been convicted of drug offences outside Nigeria are liable to imprisonment for bringing Nigeria into disrepute.
The central point of difference between the parties in relation to ground 1 is what is to be made of the Tribunal’s approach to country information. Counsel for the applicant laid stress upon the fact that the Tribunal had failed, in any way, to engage with country information said to be pertinent. In this regard, counsel referred to Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, where the Full Court said, at [49]:
“The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a court on review to find jurisdictional error.”
This Court’s task is, perhaps, encapsulated by the Full Court of the Federal Court in BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6 at [61], where the Full Court said:
“So, the question to be asked is whether, on the available materials and a proper consideration of the reasons (that is, with an eye that is not attuned to the discovery of error) there has been a performance of the statutory task of undertaking a review, by reference to the available evidence, of the merits of the claims made by the appellants before the Tribunal.”
I note that the phrase “that is, with an eye that is not attuned to the discovery of error” was not included in the extract quoted in the applicant’s written submissions, at paragraph 18. I note that counsel expressed, during the running of the trial, a dissatisfaction with any continuing reference to the decision of the High Court in Wu Shan Liang, from which the omitted phrase derives. I observe in passing that it is regrettable that counsel allowed this personal disdain to cause him to omit a material part of the paragraph reproduced in written submissions.
The position of the first respondent laid emphasis on the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, where the Full Court said, at [34]:
“The fact that a matter is not referred to in the tribunal’s reasons, however, does not necessarily mean the matter was not considered by the tribunal at all: SZGUR at [31]. The tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the tribunal’s reasons does not necessarily mean that the material was overlooked. The tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the tribunal’s reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].”
In this case, it is common cause that the applicant, who was convicted of drug related offences for nine years and served six, faces the possible application of Decree 33 of Nigeria, which provides for a minimum sentence of five years imprisonment, relevantly for those who have returned to Nigeria with criminal convictions for drug convictions. The real battle is what the country information was and what the Tribunal made of it.
The applicant points, correctly in my view, to a decision of the Tribunal involving one of the applicant’s children at CB13 and following.
In that decision the Tribunal came to the view that this child had
a well‑founded fear of persecution should she be returned to Nigeria. The Tribunal did consider, however, in the context of that decision, the operation of Decree 33 upon the father. The Tribunal’s findings, at paragraph 66 on CB29, was, “it is likely that she will not have the support of her father there because of him being in prison for
a substantial period due to his Australian drug related criminal record.” The Tribunal had already set out the Decree at CB21 and noted various pieces of country information related to the operation of Decree 33. The British-Danish Fact-Finding Mission 2007 to 2008 had asserted that although no information was available from 1990 to 1995, in 1996 to 2000 NDLEA information indicated that 451 Nigerians had been prosecuted and convicted under the provisions of Decree 33. The footnote reveals (footnote 22, CB32) that this was “UK Home Office and Danish Immigration Service 2008, Report of Joint British-Danish Fact‑Finding Mission to Lagos and Abuja, Nigeria, 9 - 27 September 2007 and 5 -12 January 2008”.The Tribunal’s decision at CB22 went on to report that this same fact‑finding mission had reported that Decree 33 had been suspended in 2001 due to public concerns about double jeopardy, nonetheless:
“reports of returned Nigerians with foreign criminal convictions being targeted by police on return continued into 2005. In fact, officials with the Nigerian Federal Ministry of Justice participating in interviews conducted in 2005 reasserting that Nigerians returning to Nigeria having been convicted of drug offences “could face being tried and sentenced again on return to Nigeria.”
[The official] went on to state that “drug offences are being punished sternly in Nigeria,” [adding] “if Nigerian law provides for an additional sentence, it will take place”.
The footnote 26 shows that this was a representative of the Federal Ministry of Justice speaking with the Danish-British Fact-Finding Mission, (October 2004 - November 2004) Report dated January 2005 as quoted in UK Home Office 2005, Nigeria Country Report.
Similar material from 2005 and 2004 is also set out at CB22.
The delegate who considered the protection claim recited more recent country information at CB138 and noted that:
“Nigerians appealing deportation from the United States of America for criminal offences in 2010 gave evidence that Decree 33 was still in operation in Nigeria, a claim which was generally accepted by the Third Circuit Court of Appeal, supported by the US State Department. DFAT reported, in April 2012, however, that:
“The NDLEA advised that since 1999 the courts have given deliberately low sentences, such as 2-3 months imprisonment to convey their objection to Decree 33. Since 1 April 2003, no repatriated Nigerian nationals have been prosecuted under Decree 33.”
DFAT added in February 2013 that:
“A like-minded mission following this issue closely advises that it remains the case that since 1 April 2003, no repatriated Nigerian nationals have been prosecuted under Decree 33. The NDLEA do not provide statistics on detention without charge.”
DFAT stated the following in its most recent report:
“Nigerian citizens returning from overseas with a criminal record may be charged under Decree 33 (the Decree) of the National Drug Law Enforcement Agency Act 1990. The Decree provides for the prosecution of Nigerians returning to Nigeria with criminal convictions from overseas – including those with drug convictions and other serious crimes including money laundering, fraud, armed robbery and rape. The minimum sentence under Decree 33 is five years imprisonment. In practice, credible sources advised DFAT that the Nigerian government has rarely given effect to the Decree. The most recent application DFAT is aware of was in 2005.””
Counsel for the applicant submitted that this material was not addressed by the Tribunal when it was, as is uncontroversial, plainly before the Tribunal.
Counsel for the first respondent referred the Court to country information referred to at CB177. This was, in fact, an extract from Country of Origin Information Services Section (COISS) of the Department of Immigration and Border Protection dated 26 May 2016. It is clear from the footnotes on CB177 that the Tribunal also had before it the Joint British-Danish Fact‑Finding Mission in 2007 and 2008. This material was specifically referred to in similar terms to those by the earlier Tribunal already referred to.
The Tribunal also had the following (CB177–178):
“Advice provided by DFAT in 2014 and 2013 states that since 2003 there have reportedly been no prosecutions under Decree 33. In advice provided in 2014, DFAT noted that the [l]aw has not been enforced since 2003, and that cases are no longer prosecuted. DFAT also reported that a ‘western European Embassy has received a statement from the Ministry of Justice stating that this will remain the case until Decree 33 / NDLEA Act Section 22 is repealed. No information was found indicating that Decree 33 has since been repealed.
In its 2015 country report on Nigeria, DFAT states that in regard to Decree 33, ‘credible sources advised DFAT that the Nigerian government has rarely given effect to the Decree. DFAT advised that ‘the most recent application DFAT is aware of was in 2005’
37. On 18 January 2017 COISS advised the Tribunal, for the purpose of this decision, that research had not found any more recent reports of prosecutions under Decree since the May 2016 report.”
The Tribunal accepted that the applicant had committed a serious drug offence in Australia, which could result him falling within the provisions of Decree 33 (paragraph 72, CB182). The Tribunal went on, at paragraphs 73-76, to say:
“73. The Tribunal acknowledged to the applicant that the law existed but that the independent information before the Tribunal indicates that Decree 33 has not been enforced since 2005. There is also information which indicates that the Nigerian Ministry of Justice have indicated that there will be no prosecutions under the law until the law is repealed.
74. The Tribunal indicated to the applicant in the hearing that this may indicate a limited risk to him in being prosecuted under the law. In response, the applicant said that the law still exists, with the implication that it may be enforced. The applicant also said that that it is not true that the law is not being enforced. He said that it is being enforced unbeknownst to independent observers, because the Nigerian authorities want to hide the enforcement of the law.
75. The Tribunal does not accept that there would not be knowledge by independent observers if Decree 33 is being enforced. The Tribunal accepts independent evidence that the law has not been enforced since 2005. Whilst the Tribunal acknowledges that the continued existence of the law means that it could be enforced, the Tribunal notes the indication by the Ministry of Justice that it does not intend to enforce the law until it is repealed.
76. The Tribunal considers that the combination of the fact that the law has not been enforced since 2005 and that Nigerian authorities positively stating that they have no intention to enforce the law results in there not being a real risk of the law being enforced. The Tribunal therefore considers that he applicant does not face a real risk of significant harm by virtue of being charged, convicted and punished pursuant to Decree 33.”
Reading the decision fairly and as a whole, it seems to me quite clear that the Tribunal was, indeed, seized of the earlier information, including the British‑Danish Fact-Finding Mission, which, taking at its highest, asserted that there had been prosecutions under Decree 33 until 2005, at which time a Nigerian official said that the law was likely to continue to be enforced. Nonetheless, the Tribunal had far more recent information before it, to the effect that the Decree had not been enforced since 2005 and that the position of the Nigerian authorities had radically altered.
I do not think that the proper inference from what is asserted to be the silence of the Tribunal about the earlier material means that it has been overlooked. It is not inconsistent with the subsequent material filed.
I, furthermore, accept the submission of the first respondent that, in any event, the Tribunal cannot be said to have failed to discharge its statutory task. The Tribunal was, in my view, entitled to rely upon the more recent, and therefore persuasive, country information provided to it. It follows that this ground is not made out.
Ground 2
The Tribunal erred by misapplying the decision in SZRSN v Minister for Immigration [2013] FCA 751 to the evaluation of the applicant’s claims concerning mental harm by reason of his separation in Nigeria from his young daughters who are recognised as refugees from Nigeria.
So far as Ground 2 is concerned the Tribunal’s reasoning is at paragraphs 79-94, (CB183-184). The Tribunal accepted that the applicant was married to a Chinese citizen who lived with him in Australia. The two children of that relationship are both Nigerian citizens. The first named child was granted a protection visa, on the basis she would face harm in Nigeria and the second named child had a similar visa. The Tribunal accepted (paragraph 80) that if the applicant was returned to Nigeria then his wife and the two children would be unlikely to follow, because of the real chance of serious harm in Nigeria to the children, on the basis of their mixed heritage. The Tribunal accepted that if the application was unsuccessful it was likely that the Chinese wife would return to China and seek to take the two children with her and noted there would be practical difficulties before this could occur (paragraph 81). The Tribunal accepted that if the applicant and his wife were not granted protection visas the family would be split up. The Tribunal accepted that both applicants would be split apart from each other and that the applicant would be separated from his children and that this would lead to harm for both applicants (paragraph 86).
At paragraphs 87-90 the Tribunal said:
“87. In the hearing, the Tribunal canvassed with the applicant the fact that harm due to the family being separated would not appear to fall within the definition of significant harm for the purpose of the Act.
88. In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A). The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought. Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.
89. Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that significant harm must be a consequence of the removal strongly suggests the removal itself cannot be the significant harm.
90. Lastly, the Court in SZRSN v MIAC had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.”
I note that at paragraphs 92-93 the Tribunal recorded:
“92. In the hearing, the applicant did not take issue with the fact that removal from Australia and the family being split up would not constitute significant harm for the purpose of complementary protection criterion.
93. For the reasons given, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for the purpose of the complementary protection criterion as a result of being separated from his wife and children, if he were to return to Nigeria.”
The argument between the parties turns, in one sense, upon what is to be made of the decision of the Federal Court in SZRSN. The applicant has sought to distinguish it (see written submissions at paragraph 24).
I think the answer to the dispute is found at paragraph [49] of Mansfield J’s judgment in SZRSN, where his Honour said:
“In my view, that reasoning is not shown to be erroneous. An interpretation of the legislation that incorporates removal from one’s family by the Australian government as “significant harm” would be an extremely strained reading, and one not in accordance with the clear intention of Parliament in enacting the complementary protection criterion. That intention was to honour Australia’s non-refoulement obligation.”
The next argument advanced by the applicant is to the effect that it is not the removal of the applicant that will cause harm, but rather matters which are not “an action of the Australian Government which would cause the separation” (written submissions paragraph 25).
In oral submissions counsel for the applicant stressed that the cause of separation was the risk of persecution that would apply to the daughters, should they return to Nigeria. SZRSN was said to be distinguishable for five reasons. First, in that case the children were Australian citizens, whereas here they are not. Second, there was no consideration in SZRSN as to whether the children could come and go to New Zealand, whereas in this case the children were entitled to come and go to Nigeria, as they were only Nigerian citizens. Third, in SZRSN the children had no protection claims in New Zealand, whereas here the children do have. Fourth, in SZRSN there were no acts or omissions in New Zealand as to why the children could not go with their parent.
In this case, there can be no return because of the acts and omissions in Nigeria. Finally, in SZRSN the children would remain in Australia with their mother, whereas here they would go to China with their mother. It was emphasised that in this case the claim only arises after the applicant arrives Nigeria.
The respondent’s submissions sought to differentiate the decision of Judge Riley in MZAEN v Minister for Immigration and Border Protection [2016] FCCA 620. In that case, Judge Riley emphasised that both the mother and applicant would be removed from Australia and separated from each other, whereas here the children could remain with their mother, potentially in China.
In the ultimate, I think that the matters raised by the applicant are more properly described as distinctions without a difference. The real operative reason from the separation of the applicant from his children will be his deportation to Nigeria. They could, in fact, go there, but they would face persecution if they did. In the end, however, that position obtained prior to the applicant’s deportation. It is the act of deportation that will give rise to his separation.
In my view, the decision in SZRSN is binding upon me and I am bound to follow it and will do so.
I note that to the extent that MZAEN purported to cast doubts on SZRSN, that decision itself has been the subject of disagreement by another Judge of this Court. Any resolution of any differences of opinion of that character must await a decision of a higher court.
Ground 3
Counsel formally submitted that SZRSN was wrongly decided, but it is common cause that I do not have power to entertain such an argument.
Conclusion
For the reasons expressed, the application must be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 22 November 2019
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