COH17 v Minister for Immigration & Anor
[2018] FCCA 1656
•1 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COH17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1656 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to apply the correct test in determining the complementary protection criteria – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(2A) Other materials cited: Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A |
| Cases cited: MZAEN v Minister for Immigration & Border Protection (2016) 306 FLR 76; [2016] FCCA 620 SZRSN v Minister for Immigration & Citizenship [2013] FMCA 78 SZRSN v Minister for Immigration & Citizenship [2013] FCA 751 |
| Applicant: | COH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 314 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 1 May 2018 |
| Date of Last Submission: | 1 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 1 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R McIntrye SC |
| Solicitors for the Applicant: | Granich Partners |
| Counsel for the First Respondent: | Ms S Oliver |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 314 of 2017
| COH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 8 May 2017. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is a citizen of Vietnam who arrived in Australia on 8 June 2012 and lodged an application for a protection visa on 14 February 2013. Initially, his claims for protection were based upon his religion and that of his parents. However, he later came to also base his claim on the basis of his mental health.
The applicant claimed that he had suffered from depression and anxiety, with features of post traumatic stress syndrome due to persecution that he had suffered in Vietnam. The applicant claimed that the prospect of being deported to Vietnam would exacerbate his fragile mental state and cause him to suffer serious psychological harm. This was particularly exacerbated by the probability that he would be returned to Vietnam without his family unit, namely his wife and daughter.
The applicant was refused a protection visa by a decision of a delegate of the Minister made on 20 February 2014 and the applicant applied to the Refugee Review Tribunal[1] (RRT) for review of that decision. The RRT made a decision on 24 March 2015 to affirm the delegate’s decision, however that decision was set aside by orders made in this Court on 12 April 2016 and the matter was remitted to the Tribunal which had by that stage assumed the functions of the RRT.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
There followed before the Tribunal, a number of issues concerning the mental health of the applicant, including a report concerning that health. However, it is not necessary to examine those issues in any detail because of the narrow nature of the issue on the review.
The Tribunal made its decision on 8 May 2017. The reasons for that decision have been outlined accurately in the written submissions of the first respondent in [16] to [27] which I adopt for the purposes of this judgment and set out below:
16The Tribunal commenced by summarising the applicant’s claims and relevant law. It then outlined the procedural history of the matter, recounted the applicant’s oral evidence to the Tribunal and summarised the representative’s written and oral submissions.
17The Tribunal proceeded to assess and consider the medical evidence before it. Although it found Dr Hergo’s report of limited assistance, the Tribunal was prepared to accept that the applicant had anxiety and depression with features of post-traumatic stress disorder. It was also prepared to accept that if them applicant was returned to Vietnam and was separated from his family, then that condition may be exacerbated.
18The Tribunal then recounted relevant country information concerning Vietnam that it had available.
19The Tribunal accepted that the applicant converted to Catholicism in about 2009, that he practised his Catholic faith in Vietnam and continued to be a practising Catholic. However, relying on relevant country information, the Tribunal did not accept that the applicant faced persecution as a Catholic or as a member of that particular social group
20The Tribunal did not accept the applicant’s claims of past harm relating to himself or his parents for reasons it set out in detail.
21Having regard to relevant country information, the Tribunal found that the applicant would be able to practise Catholicism if returned to Vietnam and, at worse, would be fined or briefly detained in respect of his illegal departure. The Tribunal however found that any fine would be modest and was ultimately not satisfied that there was a real chance that the applicant would suffer serious harm if returned to Vietnam.
22The Tribunal then proceeded to consider whether there was a real risk that the applicant would suffer significant harm if he was returned to Vietnam. Turning to the issue of whether the removal of itself was sufficient to engage the complementary protection provisions, the Tribunal found that the most relevant and authoritative decision was SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (SZRSN). The Tribunal summarised the reasoning as accepting that the obligation under s 36(2)(aa) of the Act was as an obligation to protect non-citizens from harm faced in the receiving country and being removed from one’s children cannot be characterised as a harm faced in the receiving country. The Tribunal also considered this Court’s decision in MZAEN v Minister for Immigration and Border Protection (2016) 306 FLR 76 (MZAEN).
23The Tribunal recounted the applicant’s submission that the present case could be distinguished from SZRSN and MZAEN. However, the Tribunal found that there was no submission that the serious harm arising from the possible separation of the applicant and his family is or would be the consequence of persecution for a Convention reason. The Tribunal noted that it was bound by SZRSN and whilst MZAEN questioned this authority by referring to the psychological harm that would by suffered by the applicants as a consequence of their separation, that finding was inconsistent with SZRSN. It noted that SZRSN made it plain that significant harm required an act or omission where there was intent to cause the harm and did not include the consequence of the act or omission. It further noted that Driver FM, and Mansfield J in SZRSN, accepted that separation from one’s family is a consequence of the removal and, whilst separation from one’s family may lead to psychological harm, this was not a consequence of the removal to the receiving country; nor did it constitute degrading treatment or cruel and inhuman treatment. Accordingly, the Tribunal rejected the applicant’s submissions on the meaning and scope of s 36(2)(aa) in respect of the potential separation of the applicant from his family and did not accept that this of itself would be capable of satisfying the complementary protection criteria.
24Having regard to its anterior findings, the Tribunal found that there was not a real risk that the applicant would suffer significant harm if returned to Vietnam in respect of his religion, imputed political opinion or having departed Vietnam illegally.
25The Tribunal accepted that despite the fact the applicant was included in his wife’s protection visa application, which had not been finalised at the time of the Tribunal’s decision, there was a potential for the applicant to be separated from his family if his wife was successful in her application.
26The Tribunal accepted that there was some doubt as to whether health care would be available to support the applicant’s needs or that such health care would be similar to that available in Australia. The Tribunal however found that the issue was not determinative of the applicant’s claims.
27The Tribunal ultimately found that the critical issue was that there was no evidence that any inadequacy in mental health care services (which had not been established by the applicant) could be characterised as an intentional act or omission within the meaning of s 36(2)(aa) of the Act. Accordingly, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.
(Emphasis and errors in original, references omitted)
The critical aspect of the Tribunal’s reasons concerned whether or not the impact upon the mental health of the applicant caused by his removal from Australia, and possible separation from his wife and child, could constitute significant harm within the meaning of s.36(2A) when understood in light of sub-s.36(2)(aa) of the Migration Act 1958 (Cth). It dealt with that issue at [148] through to [155] of its reasons by reference to the decision of the Federal Court in SZRSN v Minister for Immigration & Citizenship [2013] FCA 751 (SZRSN).
The applicant argues first that the decision in SZRSN was incorrect, although he accepts that this Court is bound by that decision, being a Court higher in the hierarchy of the judicial system of Australia, and secondly, that in any event, the facts of this case make this matter distinguishable from that case.
In order to deal with both of those grounds, it is necessary first to have regard to the statutory context.
One of the criteria for the grant of a protection visa is sub-s.36(2)(aa), which provides that:
36 Protection visas
…
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
...
Significant harm in that sub-paragraph is exhaustively defined by s.36(2A) to be any one of the following: arbitrary deprivation of life; subjection to the death penalty; torture; cruel or inhuman treatment or punishment; or degrading treatment or punishment. The fact that the applicant would be separated from his wife and child and suffer mental health issues as a consequence, was a necessary and foreseeable consequence of him being removed from Australia to Vietnam, and for that reason, he satisfied the criteria in sub-s.36(2)(aa) of the Act.
In SZRSN v Minister for Immigration & Citizenship [2013] FMCA 78, Driver FM (as his Honour was then known) at first instance found that that was not the case. His Honour concluded that forced removal from one’s children in Australia by the Australian Government could not be considered cruel, inhuman or degrading treatment so as to constitute significant harm for the purposes of sub-s.36(2)(aa) of the Act for four main reasons.
On appeal, Mansfield J found no error in his Honour’s reasons. He explained at [48]:
…
1.The text of s 36(2)(aa) (which refers to Australia’s “protection obligations”), and the Explanatory Memorandum associated with the Bill that introduced s 36(2)(aa) (Migration Amendment (Complementary Protection) Bill 2011: Explanatory Memorandum, House of Representatives [65]), make it clear that the purpose of s 36(2)(aa) is to ensure Australia complies with its “non-refoulement obligation” that arises from Articles 2 and 7 of the 1966 International Covenant on Civil and Political Rights and associated jurisprudence of the United Nations Human Rights Committee. That obligation is an obligation not to remove anyone from Australia to a country where there are substantial grounds for believing that there is a real risk that the person will suffer “irreparable harm”. The obligation is therefore clearly an obligation to protect non-citizens from harm faced in the receiving country. Being removed from one’s children cannot be characterised as a harm faced in the receiving country.
2.Section 36(2B) sets out the circumstances where a non-citizen should be taken not to be at a real risk of significant harm for the purposes of s 36(2)(aa); for instance, where the non-citizen is reasonably able to relocate to another part of the receiving country where there would be no real risk of significant harm: s 36(2B)(a). These “exceptions” only make sense if the legislature intended that the “significant harm” occurs only in the receiving country.
3.To satisfy s 36(2)(aa), 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 fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
4.With respect to “degrading treatment”, forced separation from one’s family by removal from Australia cannot constitute “degrading treatment” as defined in s 5(1). “[D]egrading treatment” is an act or omission that, inter alia, is “intended to cause” extreme humiliation and, the Federal Magistrate said, separation from one’s family is a consequence of the act of removal from Australia and “… a consequence cannot be said to have an intention to cause a result (which it itself constitutes)”, 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”: at [65].
(Emphasis in original and without alteration)
His Honour further explained at [49] that:
… 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 complimentary protection criterion. …
Mansfield J continued:
… In short, the appellant has failed to identify or demonstrate any error in the application of the term “significant harm” by the Federal Magistrate. Specifically in relation to the findings made by the Tribunal that harm feared by the appellant from gangs and other unidentified people in New Zealand does not meet the threshold of “significant harm” in s 36(2A) of the Act, and does not represent in any event fear of harm for a Convention reason, and that the removal of the appellant from Australia to New Zealand with the consequence of the separation from his children or its effects does not constitute “significant harm” as defined, no error is shown.
The applicant relies upon a comment made by Judge Riley in MZAEN v Minister for Immigration & Border Protection (2016) 306 FLR 76; [2016] FCCA 620 at [49] and [50], where her Honour noted that the decision in SZRSN may not be entirely correct. Her Honour explained at [50] that sub-s.36(2)(aa) of the Act:
… does not focus on the removal, as SZRSN does, but on the necessary and foreseeable consequences of the removal. Such consequences, in the present case, would include the possible consequence that the second and third applicants, being a mother and her young child, would suffer psychological harm, in their receiving countries, from being separated from each other.
It seems to me that Judge Riley’s comments are not well made. The criterion in sub-s.36(2)(aa) is like the definition of refugee in Article 1A of the Refugees Convention[2], a compound construction of a number of various elements. One of those elements is the removal from Australia. However, it would be a mistake to see that element in isolation. It is not simply a removal from Australia, but a removal from Australia to a receiving country, and with the connection between that described as a necessary and foreseeable consequence of a real risk that the non-citizen will suffer significant harm.
[2] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the
Status of Refugees (1967).
Contrary to what Judge Riley says in [50], it was not in fact the focus of SZRSN that there be simply a removal. Rather, it was the whole of the paragraph, including its context and purpose. The whole of the paragraph included, importantly, the fact that significant harm is defined for the purposes of the Act and relevantly, because the death penalty and torture were excluded, required an act or omission: see [45] through to [47] of SZRSN. As noted at [47] by Mansfield J, the relevant “act” in that case, and I would add, in the case before Judge Riley and in the case before me, is the act of removal from Australia.
There could be no other act or omission and it is for that reason, together with the other matters mentioned by Judge Driver and agreed by Mansfield J that led to the conclusion that the circumstances of the cases before their Honours could not amount to significant harm. In light of a proper analysis of the decision in SZRSN, with which I agree, and in particular, the fact that there must be an act or omission, I can see no reason to distinguish this case from the circumstances of that case and thus, that the principle in that case must apply here.
The fact that there is a likelihood of harm being suffered by the applicant in Vietnam does not undermine, in any way, that that harm must be as a consequence of an act or omission and that the only relevant act or omission must be the removal from Australia and for the reasons explained by Mansfield J and Judge Driver before him, that is beyond the contemplation of the section and therefore, cannot satisfy the criterion.
Conclusion
For each of those reasons, the applicant has not established that the Tribunal was in error in its application of SZRSN and there being no other attack on its reasons, I am not satisfied that there is any jurisdictional error in its decision and the application must be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 9 July 2018
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