DKT16 v Minister for Immigration

[2019] FCCA 170

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKT16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 170

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – complementary protection criteria – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36

Cases cited:

Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55

SZTAL v Minister for Immigration and Citizenship [2017] HCA 34

Applicant: DKT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2481 of 2016

Judgment of: Judge Hartnett

Hearing date: 29 October 2018

Delivered at: Melbourne

Delivered on: 4 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the First Respondent: Mr Charle

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2481 of 2016

DKT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is a citizen of Nepal.  She was refused a protection (Class XA) visa (‘the visa’) by a decision made by a delegate of the First Respondent on 27 January 2015.  On 17 February 2015, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision to refuse her application for the visa.  She appeared before the Tribunal on 6 September 2016 to present arguments and give evidence in respect of her proceedings. The application before the Tribunal was dismissed by the Tribunal on 20 October 2016 when the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.  By application filed 15 November 2016 the Applicant seeks judicial view of the Tribunal’s decision, claiming that jurisdictional error attends that decision.

2. In support of her application, the Applicant, by amended application filed 27 September 2018, advances a single ground of judicial review being that the Tribunal fell into jurisdictional error “by adopting an erroneous test of significant harm under s 36(2A)(e) of the Migration Act 1958 by requiring that degrading treatment must be alternatively “sustained and extreme discriminatory treatment” [72] or “extreme humiliation” [78]”.  Thus, the Applicant submits, the Tribunal erred in requiring her to demonstrate that she would suffer “extreme humiliation” because the relevant statutory test required the Applicant to satisfy the Tribunal that she would be subject to “degrading treatment”.  By applying the wrong statutory test, the Applicant submits, the Tribunal fell into jurisdictional error entitling the Applicant to the relief that she seeks in this application.

3. The Minister of Immigration and Border Protection (‘the Minister’) submits that the application must fail as no jurisdictional error attends the decision of the Tribunal. The Minister seeks costs.

The Tribunal Decision

1. The decision of the Tribunal of 20 October 2016 is set out in the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’).

2. As accurately recorded in the submissions of the First Respondent, the Tribunal’s reasons commence by identifying that:-

   a)the Applicant arrived in Australia on a tourist visa on 19 July 2014 and applied for a protection visa prior to the expiry of her tourist visa;

   b)the application for a protection visa indicated that the Applicant had lived in Nepal until her arrival to Australia, listed her occupation as “community mobiliser – home based care” and indicated that she has two children (a daughter born in 1991, and a son born in 1998);

   c)the Applicant is HIV-positive, and left Nepal to attend a seminar in Australia given her work assisting people with HIV (in relation to which the Applicant indicated that she had experienced social discrimination);  and

   d)the submission made on the Applicant’s behalf in support of her application identified the Applicant’s claims as falling under the Convention ground as a member of a particular social group for those suffering from HIV (members of that ground being restricted to participating in social work, restricted in purchasing goods from shops and suffering discrimination in their daily activities).

3. Various documents were provided to the Tribunal by the Applicant with her application and those documents were acknowledged in paragraph 15 of the Decision Record.

4. The Tribunal noted the various claims made by the Applicant and other information of relevance from the interview between the Applicant and the delegate of the Minister. The Tribunal noted that the Applicant’s husband had died in 2007 from AIDS which caused problems between the Applicant and her husband’s family who blamed the Applicant for her husband contracting the disease.  The Tribunal further observed that the Applicant has not faced difficulty in employment due to her HIV status (by reason of her working with people with HIV) and that she has been able to support herself and her children from the income from her work and from the pension that she receives from her husband’s former employer.  The Applicant indicated to the Tribunal that her family does not support her because of her HIV status.

5. In terms of the discrimination alleged by the Applicant and her HIV status, the Tribunal stated the claims of the Applicant to be as follows:-

   a)the Applicant indicated that she is discriminated against;

   b)the Applicant has been receiving retro-viral treatment since 2008 which is freely available to her;

   c)the Applicant indicated that she could not relocate to avoid the social stigma associated with her HIV because wherever she moves people will learn about her status; 

   d)the Applicant faces difficulty being supported by her family as she is viewed not to be their responsibility, given that she was once married.

6. The Applicant indicated to the Tribunal that following an earthquake in Nepal in April 2015, the family home of her parents was destroyed where her children were taking refuge. The Applicant claimed her parents are now homeless and are taking shelter under a tent.[1]

   [1] Decision Record, 27.

7. The Tribunal noted in paragraph 23 of the Decision Record that a submission was provided by the Applicant’s adviser to the Tribunal dated 29 August 2016.  The Tribunal noted that submission made a new claim that the Applicant faces persecution as a result of being a member of the particular social group of ‘widows in Nepal’, in addition to the previous claim of the Applicant being a member of the particular social group of those who are HIV positive.  It was submitted by the Applicant, as set out in paragraph 26 of the Decision Record, that she could not remain living with her family or relocate.  If she relocates she will face even greater discrimination and ostracism due to her status as a widow, which has a negative connotation. This is compounded by her HIV status.

8. The Tribunal referred to correspondence provided by the Applicant to the Tribunal on the day of the hearing, as set out in paragraph 30 of the Decision Record, that correspondence being provided from the National Association of People Living with HIV/Aids in Nepal, Pokhara.  That correspondence indicated that the Applicant was a social worker and a member of the organisation.  It further indicated that HIV infection created stigma and discrimination.  It indicated that the Applicant was a victim of HIV and a widow.  It attested to the Applicant’s good moral character.  Provided to the Tribunal by the Applicant, also at that time, was an internet report dated 30 September 2012, reporting on difficulties faced by HIV infected women in Nepal.

9. The Tribunal assessed the Applicant’s claim by reference to material provided by the Applicant which, in addition to the above, also included a post-hearing further statutory declaration of the Applicant, which responded to issues raised in the hearing and by reference to country information as sourced by the Tribunal.

The Tribunal’s findings

1. The Tribunal commenced by accepting that the Applicant is a citizen of Nepal and HIV positive.  The Tribunal found, in paragraph 39 of the Decision Record, that the Applicant has not suffered discrimination or difficulties in obtaining treatment for her HIV in Nepal.  The Tribunal found further, in paragraph 40 of the Decision Record, that in light of the Applicant’s own evidence, she had faced no difficulties at work in relation to her HIV status.  The Tribunal acknowledged:-

   “that those with HIV can suffer discrimination in work in Nepal, according to independent evidence. However, the nature of the applicant’s job, providing support services to those with HIV, results in this being an environment where discrimination is not faced by her.”

2. The Tribunal then proceeded to make adverse credibility findings against the Applicant stating, prior to the making of those findings, that it considered that the Applicant had “embellished and exaggerated claims of discrimination, and of knowledge by others of her HIV status”[2] and, in relation to one “tangential claim”, that the Applicant had “been blatantly untruthful”[3].  The adverse credit findings made by the Tribunal are set out in paragraphs 41 to 62 of the Decision Record.  It is not necessary here in these reasons to further set out those findings when having regard to the sole ground of judicial review raised by the Applicant.  Rather, it is suffice to state here the conclusion as to the Applicant’s evidence reached by the Tribunal as set out in paragraphs 63 and 64 of the Decision Record which is as follows:-

   “63.  The applicant’s evidence has been characterised by untruthfulness, inconsistency, confusion and vagueness.  There is a deliberate untruth in relation to the applicant’s parent’s home being damaged [sic] the earthquake. There is inconsistent evidence as to whether the applicant’s parents know of her HIV status and contradicting claims as to whether they support her, or have evicted her from the home. There is significant inconsistency, confusion and vagueness as to the extent the others know of the applicant’s HIV status.

   64.    The credibility issues identified cause the Tribunal to consider that the applicant has embellished and exaggerated claims of family or other mistreatment and of knowledge by others of her HIV status.”

   [2] Decision Record, 41.

   [3] Decision Record, 41.

3. Based on the credibility issues that arose for the Tribunal, the Tribunal stated in paragraphs 66 to 71 of the Decision Record the following:-

   “66.  The Tribunal is of the view that the applicant’s parents likely know of her HIV status but the Tribunal considers that they maintain their support for the applicant.  The Tribunal does not consider it plausible that there could be suspicion or knowledge of the applicant’s HIV status in her small home village and that members of the applicant’s own family would not be aware of this.

   67. The Tribunal is not satisfied that the applicant has been rejected by her parents or evicted from the family home due to her HIV status.

   68. While the Tribunal has some doubts as to the extent that the applicant’s HIV status is widely known, the Tribunal is prepared to accept that there is some dissemination of this information, both in her home village, and in Pokhara.

   69. The Tribunal is prepared to accept that there has been some degree of discrimination and adverse treatment by some individuals towards the applicant as a result of knowledge or suspicion of her HIV status both in Pokhara in her home village.  However, the Tribunal considers that there has been embellishment and exaggeration by the applicant in relation to this, given the cumulative impact of the credibility concerns identified.

   70.    The Tribunal does not consider that the applicant has been subject to physical attack.  The Tribunal is not satisfied that the applicant is unable to buy goods as a result of her HIV status or that she is unable to rent property.  The latter is inconsistent with the applicant’s evidence that she rented a property in Pokhara, and the Tribunal considers that she would be less of a focus and target in this larger city.

   71. The Tribunal does not accept that the applicant was forced out of her family home in her village or out of her home in Pokhara due to knowledge of her HIV status, given the inconsistencies in relation to these claims in the Tribunal hearing and the fact that these claims were not made as part of the original application.

   72. In relation to the applicant’s home village, the fact that the applicant has remained living in her home village, for at least half the time, from her diagnosis in 2007 until coming to Australia in 2014 is consistent with discriminatory treatment of a moderate level only and not to an extent that it has constituted serious or significant harm. If the applicant had been subject to sustained and extreme discriminatory treatment, the Tribunal considers that she would have moved permanently to Pokhara, where her employer was based. Pokhara is the second largest city in Nepal with a population of more than 340,000 people.

   73. While the Tribunal is prepared to accept that there maybe some individuals who know of the applicant's HIV status in Pokhara, and that there has been some discriminatory treatment, the Tribunal [sic] not satisfied that it has been extreme or sustained in Pokhara such that it has constituted serious or significant harm. In the bigger city of Pokhara, the Tribunal considers that the risk of discriminatory treatment is likely to be less than in the applicant's home.”

4. The Tribunal said further in paragraph 78 of the Decision Record the following:-

   “While the Tribunal is prepared to accept that there may be some degree of discrimination, negative verbal comments, and a lack of understanding from individuals either in Pokhara or her home village, who know or suspect as to the applicant's HIV status, the Tribunal is not satisfied that the applicant would be subject to physical mistreatment, or discriminatory treatment that would be extreme or sustained such that it would constitute serious harm for the purpose of the Refugees Convention criterion, or constitute extreme humiliation, for the purpose of the complementary protection criterion (in terms of whether the applicant would face degrading treatment or punishment as a defined category of significant harm). The Tribunal is not satisfied that the applicant would be at a real risk of significant harm on any other grounds.”

5. On the basis of these findings, the Tribunal ultimately concluded that it was not satisfied that:-

   “…the applicant has a well-founded fear of being persecuted as a result of mistreatment or discrimination due to being HIV positive, inferior health care or due to being a widow, or for any other reason”[4]

   or that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Nepal:-

   “there is a real risk that the applicant will suffer significant harm as a result of mistreatment or discrimination due to being HIV positive, inferior health care, or due to being a widow or for any other reason”.[5]

   [4] Decision Record, 86.

   [5] Decision Record, 87.

6. Accordingly, the Tribunal held the Applicant was not a person to whom Australia owed protection obligations either under s.36(2A) of the Act or the complementary protection criteria of s.36(2)(aa) of the Act.

Consideration

1. The Applicant’s written submissions, filed 27 September 2018, contain a number of submissions which were relied on by the Applicant in the course of the proceedings.  In particular, the Applicant submitted the Tribunal fell into jurisdictional error by assessing whether the Applicant would suffer “extreme humiliation” in considering the Applicant’s claim for complementary protection because:-

   “12. The expression “extreme humiliation” is one of the AAT’s own making. It is outside of the terms of s 36(2A) of the Migration Act 1958 which defines significant harm as being satisfied if the non-citizen will be subject to degrading treatment or punishment.

   13. The expression “extreme humiliation” is more than a gloss on the statutory definition.  The words of the statutory requirement are “degrading treatment”.  There is no requirement that this must constitute “extreme humiliation”.

   14. The Second  Respondent at [78] plainly adopted an additional test of “extreme humiliation” which caused the AAT to ask the wrong question.  This was particularly significant as the AAT had in fact found that even in Pokhara there would be discrimination, negative comments and a lack of understanding.

   15. The plain jurisdictional task in relation to s 36(2A)(e) was simply to apply these findings to the statutory definition and determine whether there is a real risk that the Applicant would be subjected to degrading treatment. 

   …

   22.    At [72] made a finding relating to her remaining in her home village from diagnosis in 2007 until coming to Australia in 2014.  However, it again uses the wrong statutory formula.  It is stated that “if the Applicant had been subject to “sustained and extreme discriminatory treatment” she would have moved permanently to Pokhara.”

   23. However, the formulation “sustained and extreme discriminatory treatment is not one found expressly or by implication in the Migration Act 1958. It is an additional bar erected by the AAT itself. The AAT should have looked at degrading treatment and not “sustained and extreme discriminatory treatment”.

   …

   26. It is s 36(2A) which defines when there is a real risk that an Applicant will suffer significant harm. Under paragraph (e), the question includes whether they will be subject to degrading treatment.  If the AAT requires additionally that such degrading treatment be “extreme and sustained” or constitute “extreme humiliation” then the AAT is setting the bar for the Applicant higher than it was set by the legislature.  That is plainly an error of law and jurisdictional error.”

2. The Applicant’s claim of jurisdictional error in written submissions thus rested entirely upon the premise that it was an error for the Tribunal to consider whether the Applicant would suffer extreme humiliation in determining whether there was a real risk that the Applicant, as a necessary and foreseeable consequence of her removal to Nepal would suffer “significant harm”.  If that premise cannot be made out, the Applicant’s claim must fail.

3. The First Respondent submitted the Applicant’s claim of jurisdictional error proceeded from a misunderstanding as to the statutory scheme and, consequently, the statutory test to be applied by the Tribunal in assessing the Applicant’s claim for complementary protection.

4. The concept of “degrading treatment” is defined in 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.”[6]

   [6] Migration Act 1958 (Cth), s.5

5. As the Minister observed, there was a shift in the Applicant’s case in oral submissions made at the hearing. The Applicant’s Counsel commenced his oral submissions by stating that perhaps his submissions could have set out the definitional requirements of s.5 of the Act before going on to state that the critical paragraph in the Tribunal’s reasoning is paragraph 78 (see paragraph 16 above) and that the gravamen of the error that is alleged by the Applicant is the Tribunal’s reference to discriminatory treatment that is extreme or sustained. That argument resiled somewhat from the submissions that were made in writing and the ground of appeal that was originally advanced.

1. The Minister submitted in response that the lengthy opening sentence of paragraph 78 of the Decision Record expresses two separate conclusions. The first is that the Applicant would not be subject to physical mistreatment or discriminatory treatment that would be extreme or sustained such that would constitute serious harm for the purposes of the Refugees Convention, and the second being that the Tribunal was not satisfied that the Applicant would be subject to physical mistreatment or discriminatory treatment that would constitute humiliation for the purpose of the complementary protection criterion.

2. The Tribunal’s reference to physical mistreatment in paragraph 78 of the Decision Record, the Applicant argues, was misplaced.  The Court finds that is not the case. The Tribunal was identifying what acts or omissions could be stated to cause the Applicant to suffer extreme humiliation that required an examination of the way the Applicant put her claims before the Tribunal.  She did make an allegation that she would suffer physical harm.  The Applicant put her case that as a necessary and foreseeable consequence of her return to Nepal she would suffer serious harm in the form of either physical mistreatment (because that’s what happens to people who are HIV positive in Nepal) or discriminatory treatment.  Those were the acts or omissions the Applicant alleged would lead to the extreme humiliation suffered by her that would entitle her to complementary protection. The Tribunal, by referring to extreme humiliation, quite clearly and plainly applied the statutory definition.

3. The reference to physical mistreatment or discriminatory treatment that would be extreme or sustained in paragraph 78 of the Decision Record related, as submitted by the First Respondent, to the Tribunal’s findings in the Refugee criterion context. The concept of sustained discrimination is well-recognised as a form of persecution under the Refugees Convention. In  Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55, Gaudron J stated:-

   “As a matter of ordinary usage, the notion of “persecution” includes sustained discriminatory conduct or a pattern of discriminatory conduct against individuals or a group of individuals who, as a matter of fact, are unable to protect themselves by resort to law or by other means. That being so, conduct of that kind, if it is engaged in for a Convention reasons, is, in my view, persecution for the purposes of the Convention. And that is so whether or not the conduct occurs in the course of a civil war, during general civil unrest, or as here, in a situation in which it may not be possible to identify any particular person or group of person responsible for the conduct said to constitute persecution.”

4. There was no error in the Tribunal assessing whether or not the Applicant had satisfied that bar in determining whether or not she was entitled to protection under the Refugees Convention. 

5. The criterion for the grant of a protection visa under s.36(2)(aa) of the Act is that, as a necessary and foreseeable consequence of a non-citizen being removed from Australia, there is a real risk that the non-citizen will suffer significant harm. A non-citizen will suffer significant harm if, under s.36(2A)(e) of the Act, the non-citizen “will be subject to degrading treatment or punishment”. The First Respondent submits that the error in the Applicant’s submission is that it assumes both the concept of “degrading treatment or punishment” admits of no further definition and that the concept of degrading treatment or punishment has some readily identifiable meaning that is different from the concept of extreme humiliation employed by the Tribunal.

6. The difficulty in the Applicant’s approach is that the concept of degrading treatment or punishment is defined in s.5 of the Act as referred to in paragraph 22 above. In SZTAL v The Minister for Immigration and Border Protection [2017] HCA 34, the High Court of Australia considered the concept of degrading treatment or punishment. The High Court observed that concept to mean “an act or omission that causes and is intended to cause extreme humiliation which is unreasonable” and that this definition “like the definition of cruel or inhuman treatment or punishment in s 5(1), is not taken from the ICCPR[7]”.[8]

   [7] International Covenant on Civil and Political Rights.

   [8] SZTAL v Minister for Immigration and Citizenship [2017] HCA 34, 5.

7. The Tribunal did apply the correct test.  That is apparent from paragraph 78 of the Decision Record. The Tribunal did not accept the Applicant would suffer mistreatment or discrimination by reason of any acts or omissions that the Applicant alleged would cause her to suffer extreme humiliation and, therefore, degrading treatment and punishment.  Therefore, the Applicant did not satisfy the complementary protection criteria.

8. The Applicant’s application must fail. The Tribunal properly applied the statutory test to the claims made by the Applicant and the factual findings reached by the Tribunal. The factual findings made by the Tribunal were plainly open to it on the evidence before it and the weight given by the Tribunal to such evidence was a matter for the Tribunal.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  4 February 2019