DQD16 v Minister for Immigration
[2021] FCCA 57
•20 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DQD16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 57 |
| Catchwords: MIGRATION – Protection visa application –– application for review of decision by Administrative Appeals Tribunal – inter-caste marriage of Indian nationals with mental health issues – well-founded fear of persecution on grounds of inter-caste marriage and political opinion – applicants able to avail themselves of their right to enter and reside in Nepal – no protection obligations by operation of section 36(3) of the Migration Act – no error in construction of section 36(3) of the Migration Act – no failure to consider suicide as a form of significant harm – no error in finding the inability to access health services was not a Convention reason – no failure to consider an integer of a claim – no breach of section 499 of the Migration Act for failure to consider DFAT report – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 65, 499. |
| Cases cited: Applicant A v the Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 258 CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 CHB16 v Minister for Immigration and Border Protection and & Anor [2019] HCASL 377. CSV15 v Minister for Immigration and Border Protection EZC18 v Minister for Home Affairs [2019] FCA 2143 GLD18 v Minister for Home Affairs [2020] FCAFC 2 Hussein Ali Haris v Minister for Immigration and Multicultural Affairs [1998] FCA 78 Hossain v Minister for Immigration (2018) 264 CLR 123 MZAIU v Minister for Immigration and Border Protection [2015] FCCA 1898 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] 204 CLR 1 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 SZMWQ v Minister for Immigration [2010] FCAFC 97 SZRTC v Minister for Immigration [2014] FCAFC 43 Other Material: Ministerial Direction No. 56 – Consideration of Protection Visa Applications |
| First Applicant: | DQD16 |
| Second Applicant: | DQE16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2581 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 2 April 2020 |
| Date of Last Submission: | 2 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 20 January 2021 |
REPRESENTATION
| Counsel for the Applicants: | Mr McBeth |
| Solicitors for the Applicants: | Oboodi Barristers & Solicitors |
| Counsel for the Respondents: | Ms Amamoo |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 29 November 2016 and amended on 16 March 2020 be dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $6,000.
The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2581 of 2016
| DQD16 |
First Applicant
| DQE16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 29 November 2016 and amended on 16 March 2020, the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 November 2016. The Tribunal’s decision affirmed a decision of a delegate (“the delegate”) of the First Respondent (“the Minister”) who refused to grant Protection (Class XA) visas (“the protection visas”) to the Applicants under s65 of the Migration Act 1958 (Cth) (“the Act”).
The Applicants are Indian nationals in an inter-caste marriage, the husband (“the First Applicant”) being of a higher caste than his wife (“the Second Applicant”). They claim a well-founded fear of persecution, inter alia, on the basis of violence from people opposed to their
inter-caste marriage and on the basis of political opinion.
The Tribunal found that the Applicants had not taken all possible steps to avail themselves of their right to enter and reside in Nepal and, accordingly, Australia did not have protection obligations in respect of the Applicants by operation of s36(3) of the Act.
The matter was heard in this Court on 2 April 2020.
For the reasons that follow, I have concluded that the application must be dismissed.
Background
The First Applicant arrived in Australia on 7 April 2009 as the holder of a Subclass 572 (Student) (Vocational Education Sector) visa. His wife was the primary visa holder; he was her dependant.
On 22 July 2013, the First Applicant applied for the protection visa, and on 9 September 2013 the Second Applicant applied to ‘join’ her husband’s protection visa application.
On 12 February 2014, the delegate refused to grant the protection visas.
On 11 March 2014, the Applicants applied for review of that decision at the Refugee Review Tribunal (“the RRT”), as it was then known.
On 11 November 2014, the Applicants appeared before the RRT, assisted by a legal representative and an interpreter.
On 27 August 2015, the Tribunal affirmed the delegate’s decision not to grant the Applicants the protection visas.
On 1 March 2016, the Federal Circuit Court remitted the matter to the Tribunal for rehearing.
On 28 June 2016, the Applicants appeared before the Tribunal, with the assistance of an interpreter. The matter was considered by the same Tribunal Member that made the August 2015 decision.
On 12 October 2016, the Applicants again appeared before the Tribunal, with the assistance of an interpreter, to discuss newly raised claims relating to their mental health.
On 9 November 2016, the Tribunal affirmed the decision not to grant the Applicants the protection visas.
On 29 November 2016, the application to this Court was made.
Summary of the Tribunal’s Decision
The Tribunal set out the First Applicant’s claims that his great uncles wanted to harm him because of his inter-caste marriage to the Second Applicant, his political opinion in support of the Congress Party, and in order to deprive him of land he had inherited from his father. The Tribunal outlined the Applicants’ claims concerning their ability to relocate within India, in particular, the Applicants’ claim that the great uncles wanted to harm the First Applicant’s brother.
The Tribunal then outlined the Applicants’ claims to have “a range of medical problems”. These included:
a)the First Applicant’s peanut allergy;
b)the Second Applicant’s intermittent pain following a 2011 surgery;
c)the past blisters on the Second Applicant’s feet, and the fungus on her fingers which the Tribunal considered relatively minor;
d)the First Applicant’s back pain;
e)their fertility issues ― which, the Tribunal observed, may well continue even if they were to remain in Australia; and
f)the claims of both Applicants, first presented at the second hearing, to have serious mental health problems ― where the Tribunal accepted that both Applicants suffer from depression, anxiety and stress, and that, further or alternatively, the Second Applicant suffered from PTSD: see the Tribunal’s decision at [57] – [89].
The Tribunal recorded the Applicants’ claims in relation to Nepal, including their concerns in relation to honour killings, police corruption, that Nepal is generally unsafe and that they feared that they would not be able to obtain adequate medical treatment for their mental health issues.
The Tribunal accepted at [116] of their decision that the Applicants were in an inter-caste marriage, as the husband was of a higher caste than his wife. The Tribunal further accepted that an inter-caste marriage constituted a particular social group for the purposes of s36(2) of the Act.
In considering these matters, the Tribunal found that the First Applicant faced a real chance of serious harm for reasons of his political opinion and membership of a particular social group. In particular, the Tribunal accepted that the Applicants faced a real chance of serious harm at the hands of relatives who objected to the inter-caste marriage if they returned to their home area of Punjab: see Tribunal’s decision at [115] – [120].
The Tribunal further accepted that the Applicants would face a real chance of serious harm from the same relatives on the basis of political opinion.
In relation to the Applicants’ ability to relocate within India, the Tribunal found that the Applicants’ evidence was exaggerated, contradictory and embellished in certain respects: see Tribunal’s decision at [121] – [135]. Nevertheless, the Tribunal found that “it would not be reasonable for them to relocate internally within India because they may not be able to access health care they need in relation to mental health”: see Tribunal’s decision at [140].
The Tribunal concluded that s36(3) of the Act applied to the Applicants because they had a right to enter and reside in Nepal: see Tribunal’s decision at [141] – [148]. In considering whether s36(3) was ultimately inapplicable by operation of s36(4)(a) (being a well-founded fear of persecution on Convention grounds in Nepal) or s36(4)(b) (being a real risk of significant harm in Nepal), the Tribunal ultimately found that neither of those exceptions applied: see Tribunal’s decision at [190]. In particular, the Tribunal considered that the Applicants’ inability to access mental health services (either of the same standard as in Australia or at all in Nepal) would not be for a Convention reason: see Tribunal’s decision at [157] – [165]. On that basis, the Tribunal stated that “the inability of the Nepali authorities to provide the Applicants with the necessary medical treatment would not constitute arbitrary deprivation of life”: see Tribunal’s decision at [165].
The Tribunal also found that s36(5) and s36(5A) were not enlivened (see Tribunal’s decision at [191] – [194]) nor was the Applicant’s contention captured by the other definitions of “significant harm” in s36(2A): see Tribunal’s decision at [157].
Grounds of review
The Applicants’ amended application sets out the following grounds of review:
“1. The Tribunal erred in its construction of s 36(3) of the Act, in that it required the Applicants to take steps to avail themselves of a right to enter or reside in Nepal, notwithstanding that on the Tribunal’s own reasoning, it would be unreasonable to require them to take those steps.
2. The Tribunal failed to give proper consideration to an integer of the Applicants’ claim arising from the material to the Tribunal, relating to their mental health and potential suicide if removed to Nepal.
Particulars
a) The Tribunal failed to consider whether the Applicants would have reduced access to health care in Nepal by reason of their Indian nationality, being a ground specified under s 36(4)(a).
b) The Tribunal failed to consider whether the risk of suicide if returned to Nepal would constitute significant harm within the meaning of s 36(4)(b).
3. The Tribunal breached s 499 and Ministerial Direction No 56 by failing to have regard to the most recent DFAT Country Information Report on Nepal.”
Applicants’ submissions
Ground 1 – the Tribunal erred in its construction of section 36(3)
By this ground the Applicants effectively submit at [13] – [14] of their submissions filed on 16 March 2020, that s36(3) of the Act should be construed such that, where it is unreasonable for an Applicant to be required to avail themselves of the right to enter another country, their right to enter is no right at all for the purposes of s36(3).
The Applicants submit that the Tribunal erred in its construction of s36(3) of the Act and should not have found, on the facts before it, that the Applicants were not entitled to protection from Australia as a consequence of their right to enter and reside in Nepal.
The Applicants question at [14] whether they should be denied protection obligations under s36(3) of the Act for failing to take steps to exercise a right of entry to Nepal under the Indo-Nepal Treaty of Peace and Friendship of 1950, where the Tribunal’s “own reasoning established that it would be unreasonable to expect them to do so.”
The Applicants submit at [19] that, while the Applicants’ mental health was the basis of the Tribunal’s conclusion, internal relocation within India would not be reasonable, as the Tribunal:
“19. […] only considered the question of whether medical treatment would be deliberately withheld by Nepali authorities for a discriminatory reason or would amount to the intentional infliction of harm. It avoided consideration of whether the inability to access adequate health services in the context of the Applicants’ dire mental health would mean that the right to enter Nepal was in reality no right at all.”
The Applicants further state at [20] that:
“20. In the course of its analysis, the Tribunal acknowledged that in moving to Nepal, the hardships faced by the Applicants would be considerably greater than the hardships of relocating to another part of India, which the Tribunal had already found would be unreasonable.”
The Applicants contend at [21] that the consideration of reasonableness required by the analysis of relocation under s36(2B) of the Act should be applied to the question of a safe third country’s availability under s36(3) of the Act.
The Applicant’s refer to his Honour Flick J’s decision in
SZMWQ v Minister for Immigration[2010] FCAFC 97 (“SZMWQ”), for the contention that the facts in the present case, unlike those in SZMWQ and SZRTC v Minister for Immigration [2014] FCAFC 43 (“SZRTC”), require the Court to conclude that the strict legal entitlement to enter a third country was not a right to enter and reside in a “meaningful sense”, given the conditions that would be faced upon entry: see Applicant’s submissions at [26].
The Applicants submit at [22] that, having regard to the purposes of the protection visa criteria in s36 of the Act, “it would be perverse” if the Applicants were entitled to protection from refoulement to India
(where they faced a well-founded fear of persecution and where it would be unreasonable to expect them to relocate) but were not entitled to protection from refoulement to Nepal, “where the hardships acknowledged by the Tribunal would be even greater than those that were found to make their relocation within India unreasonable.”
Ground 2 – Failure to consider suicide as a form of significant harm
The Applicants contend that the Tribunal erred in its consideration of whether the Applicants would face a well-founded fear of persecution or face a real risk of significant harm in Nepal within the meaning of s36(4). This contention is made on the basis that the Tribunal erred in:
a)finding that the withholding of health care in Nepal would not be for a Convention reason; and
b)failing to consider whether suicide would constitute significant harm within the meaning of s36(4)(b).
Discrimination in health care provision as a Convention reason
The Applicants submit at [34] – [35] that the Tribunal erred in its decision because, when it considered the ‘DFAT Country Information Report – Nepal’ dated 21 April 2016 (“the DFAT Report”) – which provided at clause 2.16 that Nepal’s health services apply only to Nepali citizens – it found that the Applicants’ inability to access health services would not be for a Convention reason.
The Applicants submit that the DFAT Report showed that the Applicants would have health care services withheld on the basis of their nationality, which constitutes a Convention reason listed in s36(4)(a) of the Act: see Applicant’s submissions at [32] – [33].
Suicide as a form of significant harm
The Applicants effectively note at [36] – [37] that the Tribunal considered the possibility that the Applicants might suicide due to the non-provision of health care in relation to:
a)the definition of ‘cruel or inhuman treatment’ in s5 of the Act; and
b)the ‘consequences of scarce medical resources’ as a defined category of significant harm in s36(2A)(a).
Notwithstanding the above, the Applicants submit at [37] – [40] that:
a)suicide had been squarely raised as a potential consequence of the Applicants’ mental health conditions if not properly treated;
b)the Tribunal did not consider whether suicide may constitute an arbitrary deprivation of life; and
c)if an Applicant would be inclined to self-harm upon (and because of) his/her removal from Australia, there is “no obvious reason why that might not qualify as risk of the kind to which s36(2)(aa) of the Act is directed.”: see decision in GLD18 v Minister for Immigration [2020] FCAFC 2 (“GLD18”) at [103].
On that basis, the Applicants contend at [41] that the Tribunal made a jurisdictional error in failing to consider this integer of the claim that arose squarely from the material.
Ground 3 – Breach of section 499 for failure to consider DFAT Report
By ground 3 the Applicants contend that the Tribunal was required by Ministerial Direction No 56, s499(1) and s499(2A) of the Act to take the DFAT Report into account, and failed to do so. This is evidenced, they contend, by the fact that the Tribunal’s decision makes no reference to the DFAT Report: see Applicant’s submissions at [45].
Regarding materiality, the Applicants contend at [46] that the healthcare provisions in the DFAT Report were “plainly relevant to the Tribunal’s assessment” and relate to the fact that free health care is only provided to Nepali citizens, which is material to the Tribunal’s reasoning.
First Respondent’s submissions
Ground 1 – the Tribunal erred in its construction of section 36(3)
At [12(1)] of their submissions filed on 30 March 2020, the Minister cites the Full Court decision in NBLC; NBLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 272 (“NBLC”) where Graham J, with Wilcox J agreeing, stated at [63] that the right to avail oneself of entry to a third country is “the bare right…to enter and reside in a country, not a right to enter and reside comfortably in a country.”
At [12(3)], the Minister refers to the Full Federal Court decision in SZMWQ where an Applicant’s argument that she could have no meaningful right to reside in a third country if she had no ancillary rights to work and welfare, was rejected by Rares J. The Minister notes that, in SZMWQ, Rares J explained at [34] that s36(3) refers to “merely a right to enter and reside in the other country; it is not a right equivalent to recognition of the non-citizen as entitled to all the attributes of citizenship or even refugee status in the country”.
The Minister also refers at [12(4)] to Flick J’s comments in SZMWQ at [82] that s36(3) “…does not incorporate any requirement to necessarily examine such matters as a person’s ability to obtain employment or access to welfare benefits”.
The Minister contends at [12(5)] that the Applicants’ argument that a ‘right to enter and reside’ imports the concept of reasonableness as to the exercise of that right would be contrary to the conclusion of the Full Court in NBLC and SZMWQ.
With regard to whether or not economic or physical circumstances result in a person not truly having the right to enter and reside in another country, the Minister contends at [13] that:
a)Flick J’s comments in SZMWQ do not support an argument that the right to reside is not a “right” where it would be “unreasonable to expect” it to be exercised;
b)irrespective of the characterisation of Flick J’s comments, his Honour’s comments were obiter; and
c)Judge McGuire in MZAIU v Minister for Immigration and Border Protection [2015] FCCA 1898 observed that there is no requirement at law for a Tribunal to examine Applicant’s particulars regarding s36(3) other than those provided by statute at s36(4), s36(5) and s36(5A).
In relation to the Applicants’ claim of inconsistency, the Minister contends at [15] that there is a clear position in the authorities mentioned above, and that the Tribunal did not misconstrue s36(3).
Ground 2 – Failure to consider suicide as a form of significant harm
Discrimination in health care provision as a Convention reason
The Minister effectively submits at [17] – [20] that the Tribunal:
a)considered all the available country information for the purposes of reaching its decision;
b)
expressly noted that it had considered all the DFAT country information before it in accordance with Ministerial Direction
No 56; and
c)directly addressed the Applicants’ medical problems at [80] of their decision.
In the alternative and on the basis that the Tribunal did not consider the DFAT country information (which the Minister does not concede), the Minister contends at [21] that any error was immaterial, as it would have made no difference to the Tribunal’s decision. Accordingly, the Minister contends that the Tribunal:
a)considered the Applicants’ health problems in relation to five types of harm identified in s36(2A);
b)found that there is no person/agent engaged in persecution and the harm is not caused for one or more of the five Convention grounds;
c)found no evidence of the requisite intention, deliberateness or denial on a discriminatory basis, which are an express elements of the applicable type of harm;
d)considered that s36(4)(a) was not engaged because the Applicants did not have a well-founded fear of persecution in Nepal in relation to health problems; and therefore
e)found that the potential inability of the Nepali healthcare system to treat the Applicants adequately did not constitute ‘significant harm’ for the purposes of s36(4)(b).
The Minister also asserts at [21(3)] that the DFAT country information contained no probative material that medical care would be “intentionally withheld” from the Applicants for a Convention reason in Nepal, nor did it contain material suggesting that the Applicants would be persecuted in relation to a potential inability to receive appropriate healthcare.
Consequently, the Minister states at [22] that the consideration of the DFAT information “could not have resulted in the Tribunal reaching a different view” in relation to the application of s36(4)(a) or s36(4)(b), and therefore any failure to consider that information could not have materially affected its decision that the Applicants were not owed protection obligations under s36(3).
Suicide as a form of significant harm
In response to the Applicants’ submissions regarding suicide, the Minister submits that the Applicants did not contend that there would be a real risk they would suffer significant harm in Nepal on the basis that suicide may constitute an arbitrary deprivation of life. The Minister contends at [23] that the material before the Tribunal:
a)contained “a few passing references” to suicidal ideation;
b)did not squarely raise a claim about the operation of s36(4)(b); and
c)would have required “constructive or creative activity by the Tribunal’” as it did not emerge clearly from the material: see NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 (“NABE”) at [58].
Further, the Minister maintains that the authorities on this issue indicate that suicide does not constitute significant harm for the purposes of s36(4)(b), so such an error cannot constitute jurisdictional error.
With regards to this, the Minister contends at [24] – [30] that:
a)what constitutes significant harm is exhaustively defined in s36(2A) by reference to the five elements there listed;
b)in order to satisfy the statutory definitions it must be ‘intentionally inflicted’ and/or ‘intended’;
c)‘arbitrary deprivation of life’ is not defined;
d)Collier J in CSV15 v Minister for Immigration and Border Protection at [34] observed that ‘significant harm’ is framed in terms of harm suffered by a non-citizen because of acts of other people and did not encompass the harm the appellant contends that she would suffer from depression if she returned to India;
e)Reeves J in CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 (“CHB16”) agreed that self-inflicted harm does not fall within the concept of ‘significant harm’ to which s36(2A) is directed;
f)similarly in EZC18 v Minister for Home Affairs, Besanko J found at [41] that the harm to which s36(2A)(a) refers “must be inflicted by a third party”;
g)Allsop CJ and Mortimer J in GLD18 observed at [81] that s36(2A) “looks to the conduct of an actor or perpetrator and to identify the visa Applicant as the subject of that actor or perpetrator”;
h)In GLD18, Allsop CJ and Mortimer J noted at [31] that the purpose of the complementary protection “is not a general humanitarian visa criterion’ and ‘not designed to protect visa Applicants form all harm in all circumstances”; and therefore
i)the Applicants’ argument that the Tribunal fell into jurisdictional error by failing to consider that suicide for want of mental health care could constitute significant harm cannot be sustained.
Ground 3 – Breach of section 499 for failure to consider DFAT Report
The Minister contends [31] that the Tribunal did consider the most recent DFAT country information. The Minister submits at [18] – [20] that:
a)the Tribunal expressly noted that in accordance with Ministerial Direction No 56, it was required to take into account country information prepared by DFAT: see Tribunal decision at [22];
b)the Tribunal stated it took into account “all available evidence before it” in reaching its decision: see Tribunal decision at [32];
c)in relation to the Applicant’s medical problems, the Tribunal noted “Further documents were provided on 3 and 29 August 2016, including country information about Nepal and India, several letters and medical reports, including reports that they both suffer from serious mental health problems.”: see Tribunal decision at [80]; and
d)the Applicants were invited to a second hearing before the Tribunal to discuss the newly raised claims of mental health problems
(see Courtbook (“CB”) at 397) where the Applicant’s provided 67 pages of new documents, including links to country information, which was considered by the Tribunal: see Tribunal decision at [91], [165];Further, the Minister submits at [21] – [22] that even if the Tribunal did not consider the DFAT country information, that failure was insufficiently material to constitute a jurisdictional error, principally as the country information would have made “no difference” to the decision of the Tribunal.
Consideration
Ground 1 – the Tribunal erred in its construction of section 36(3)
Section 36(3) of the Act provides as follows:
“(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the
non-citizen is a national.”
At [141] – [148] of its decision, the Tribunal found that the Applicants have the right to enter and reside in Nepal. By their written submissions at [12], the Applicants accept that, in the abstract, the reciprocal rights of entry and residence for Indian citizens in Nepal are rights to which s36(3) of the Act applies.
However, the Applicants submit at [13] that, because of hardship facing them – being significant mental health issues and difficulty in accessing adequate health services in Nepal – the right to enter Nepal was in fact no right at all: see also Applicant’s submissions at [19].
At [24] – [25], the Applicants refer to SZRTC where Flick J, referring to the judgment of Rares J in SZMWQ, stated at [48]:
“It has previously been left open for future consideration “whether a person who has a ‘right to enter and reside’ in another country may so confront economic or physical circumstances that he may not truly be said to have such a ‘right’…”: SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 at [110], (2010) 187 FCR at 139. A right to cross a border into a third country but to thereafter remain in economic or physical conditions so devoid of any acceptable standard may be found to not constitute a right of the kind being described.”
The Applicant’s also submit at [14] that, as the Tribunal found that it would be unreasonable for the Applicants to remain in India,
the circumstances of this case demand a finding that the right to enter Nepal does not constitute a right of the kind found in s36(3) of the Act. On that basis, the Applicants submit at [27] that the Tribunal’s finding that the Applicants are not entitled to protection by Australia as a result of their right to reside in Nepal is a misconstruction of s36(3) and constitutes jurisdictional error.
In SZMWQ, the Full Court of the Federal Court considered the meaning of a "right to enter and reside” as that expression is used in s36(3).
In SZMWQ at [25], Rares J noted the Appellant’s submission that a person could not meaningfully have a right to ‘reside’ in the country if that person had no ancillary rights such as a right to work and to access welfare that would enable him or her to establish a residence.
That submission was rejected by each of the members of the Full Court (Rares, Besanko and Flick JJ) in SZMWQ. At [30] – [34] of SZMWQ, Rares J stated:
“30. Contrary to the appellant’s submission, Hill J did not suggest in WAGH 131 FCR at 283-284 [63]-[64] that the right to reside referred to in s 36(3) included a right effectively to establish an abode by having sufficient means of support from employment, third parties or access to welfare services. He explained that the essential feature of the right to reside in s 36(3) was that it would be practically likely that the person would obtain effective protection in the other country: WAGH 131 FCR at 283 [63], 284 [64]. He identified this as being the difference in his construction of the right in s 36(3) from that of Lee J, whose view was that the other country had to acknowledge that it would (rather than be likely to) accord protection to the person: WAGH 131 FCR at 283 [62].
31. Here, on the findings of the tribunal, the appellant had a right to reside in Spain that he could exercise effectively and he would be protected there from the persecution of which he claimed to have a well-founded fear.
32. Essentially, s 36(3) is directed to excluding Australia’s obligations to grant protection under the Convention to a person who has a right to enter and reside in another country, but has not taken all possible steps to avail himself or herself of that right.
It is not sufficient that, by exercising such a right outside Australia, the person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle, that do not arise for a Convention reason (i.e. a well-founded fear of persecution). Unfortunately, experience has shown that there are many countries in the world without social welfare to which persons flee in an attempt to avoid persecution. If there is a country that will offer a refugee from Convention related persecution the right to enter and reside, where he or she will not suffer the persecution claimed, the mere fact that the country has no social security system at all could not enliven a protection obligation to that person in Australia were he or she to arrive here. It was common ground that ss 36(4) and (5) did not operate to exclude s 36(3) in relation to the appellant if he were to go to Spain.
33. The Full Court has held that the words “all possible steps” should be given their literal and grammatical meaning:
NBLC v Minister for Immigration and Multicultural Indigenous Affairs(2005) 149 FCR 151 at 152[2] per Wilcox J, 154 [12] per Bennett J and 165 [63]-[64] per Graham J. They found that the expression should not be construed as meaning the lesser standards of “all steps reasonably practical in the circumstances”, “all reasonably available steps” or “all reasonably possible steps”. Subsequently, Callinan, Heydon and Crennan JJ had emphasised in NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 that the task of construction of a provision such as s 36(3) involved the Court ascertaining what the Australian law was having regard to what, and how much of an international instrument, Australian law required be implemented. That task involved ascertaining the extent to which Australian law adopted, qualified or modified the instrument by a constitutionally valid enactment. Next, the Court had to construe only so much of the instrument, and any qualifications or modifications of it, as Australian law required: NBGM 231 CLR at 71-72 [61].
34. The right to enter and reside in the other country described in s 36(3) is not the same as the right that Australia would grant to the non-citizen were he or she to be given a protection visa under s 36(2). Section 36(3) describes a more qualified right. First, it is merely a right to enter and reside in the other country; it is not a right equivalent to recognition of the non-citizen as entitled to all the attributes of citizenship or even refugee status in the other country.”
(Emphasis added)
In relation to the Applicant’s submissions that the comments made by Flick J at [110] of SZMWQ were such as to found a ground that the Tribunal must examine and consider an individual’s ability to obtain employment, welfare benefits or, as in this case, medical/mental health services, that submission was rejected by Flick J at [82] of SZMWQ, where his Honour stated:
“82. Although an error in the construction of s 36(3) may thus be accepted as a jurisdictional error, it is considered that the first Ground of Appeal is to be rejected for either of two reasons, namely:
the Tribunal whose decision was under review did not make any finding either that the right to reside would only be “negated” if an applicant for refugee status was exposed to “extreme hardship” or that the present Appellant would face “extreme hardship”; and/or
s 36(3), properly construed, simply addresses the right to “enter and reside” in a third country and does not incorporate any requirement to necessarily examine such matters as a person’s ability to obtain employment or to access welfare benefits upon taking up residence.”
Further, Flick J noted at [110] that even where people are “…fleeing persecution are housed by another country in tents or make-shift accommodation and have no ability to obtain employment and where their ability to move freely throughout a country may be seriously circumscribed. But their ability “to enter and reside” in the country to which they have fled may nevertheless still fall within the ambit of the qualification expressed in s 36(3).”
The Tribunal was not in error in reaching the conclusion that it did in relation to the construction of s36(3) of the Act and the Applicants’ right to reside in Nepal. On that basis, this ground of review must fail.
Ground 2 – Failure to consider suicide as a form of significant harm
In essence, the Applicants say that the Tribunal erred in its consideration of whether the Applicants would face a well-founded fear of persecution or real risk of significant harm in Nepal within the meaning of s36(4) because it erred in:
a)finding that the withholding of health care in Nepal would not be for a Convention reason; and
b)failing to consider whether suicide would constitute significant harm within the meaning of s36(4)(b).
At [32] of their submissions, the Applicants refer to clause 2.16 of the DFAT Report dated 21 April 2016 (being the most current country information that was then before the Tribunal) which stated that free public health services applied only to citizens of Nepal. The Applicants submit at [33] that because the Applicants would have not have access to free healthcare services because of their nationality that constituted persecution for a convention reason and also constitutes a ground under s36(4) of the Act.
The Tribunal’s finding at [157] of its decision that the Applicants’ inability to access fertility treatment services, treatment for back or mental health services (neither of which are to the same standard in Australia or at all in Nepal) would not be for a convention reason.
The Applicants also submit that the failure on the part of the Tribunal to consider that suicide may constitute an arbitrary deprivation of life for the purposes of s36(2A)(a) of the Act constitutes a jurisdictional error. The Applicants referred to the judgement of Snaden J in GLD18,
where his Honour stated at [103] that:“With respect to those who think otherwise, I would be slow to conclude that “significant harm” extends no further, conceptually, than to harm that a visa applicant might endure at the hands of others. It might well be that an applicant could, for want of adequate mental health, subject him or herself to the sort of harm upon which complementary protection is premised. If, for example, there was a basis for thinking that a visa applicant, upon
(and because of) his or her removal from Australia, would be inclined to self-harm, and that that inclination might extend to or beyond the standard of “cruel or inhuman treatment or punishment” (perhaps because it involved the intentional self-infliction of severe pain), there is no obvious reason why that might not qualify as a risk of the kind to which s 36(2)(aa) of the Act is directed.”There was no error in the consideration given by the Tribunal in considering whether the applicant's lack of access to free healthcare in the pool would constitute significant harm in Nepal.
At [160] – [164] of the Tribunal’s decision, the Tribunal considered that the five types of harm identified in s36(2A) each require deliberateness or a denial of health care on a discriminatory basis. The Tribunal held at [165] that there was no evidence before the Tribunal that Nepalese authorities would deprive the Applicants of health services or psychiatric care available to the public or that there was evidence of intentional deliberate or discriminatory denial of services. In circumstances where no contrary information was before the Tribunal that medical treatment would be intentionally withheld from the applicant for a convention reason there is no error apparent in the Tribunal's decision in relation to this ground.
This is particularly the case given that there was no evidence there was any person engaged in persecution and I accept that the harm associated with a lack of access to healthcare is not for one of the five convention reasons.
I also note that at [108] of the Tribunal’s decision, the Tribunal indicates the Second Applicant conceded that she did not fear that medical treatment would be refused for a convention reason. The Tribunal did note in their reasons at [108] that it in most countries around the world people only get medical treatment if they pay for it regardless of race, religion, nationality, membership of the political social group or political opinion. The provision of free essential health services to its citizens does not constitute persecution of non-citizens for a convention reason: see Applicant A v theMinister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 258; Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] 204 CLR 1; Hussein Ali Haris v Minister for Immigration and Multicultural Affairs [1998] FCA 78.
As to the ground that the Tribunal was an error in failing to consider the contention that the risk of suicide is a form of significant harm,
this ground fails as the approach taken by the Tribunal was consonant with authority binding on it.
The First Respondent submits that the risk of suicide on the part of one or more of the Applicants was a form of significant harm that should have been considered by the Tribunal, was never clearly raised before the Tribunal. A medical report in relation to the Second Applicant that was before the Tribunal and dated 1 August 2016 states that: "she has suicidal ideation but no current plan": see CB at 357 – 358.
Another report dated 11 August 2016 (see CB at 393) regarding the First Applicant, noted that he had “suicidal ideation but no current plan”,
and a further report dated 6 October 2016 from the Second Applicant's General Practitioner stated that she had been experiencing suicidal ideation: see CB at 402.
Irrespective of whether the contention was squarely put, or put in a way that would have been reasonably apparent to the Tribunal, self-inflicted harm is not harm of a kind that falls within the type of harm covered by s36(2A) of the Act. This view is clearly expressed by Alsop CJ and Mortimer J in GLD18 where their Honours stated at [30] – [31] that:
“30. The other two categories of significant harm in
subss 36(2A)(a) and (b) are self-explanatory in the sense that both involve positive acts.
31. The immediate observation to make, and the proposition with which the appellants’ arguments failed to grapple in a satisfactory way, is that each category of harm looks to the conduct of an actor or perpetrator, and identifies the visa applicant as the subject of the conduct of that actor or perpetrator.”
At [46] their Honours made reference to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (per Lander and Gordon JJ), where their Honours observed that:
“46. As we have explained above, the touchstone for the engagement of the complementary protection criterion in
s 36(2)(aa) is 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”. In SZQRB at [98], Lander and Gordon JJ observed that the statutory definition of “significant harm” in s 36(2A) “recognises the type of harm from which the CAT and ICCPR seek to protect” individuals. That is, harm arising from the treatment of individuals in the country to which they are to be removed
(the “receiving country”), by agents or perpetrators located in that country, the protection of visa applicants from such harm being consistent with Australia upholding its international obligations. That approach to the purpose of this visa criterion is also consistent with the observations of the High Court in CRI026 v Republic of Nauru [2018] HCA 19; 355 ALR 216 at [16]-[49], where the Court examined in detail the nature of a State’s complementary protection obligations under international law.: see also GHB16 v Minister for Immigration and Border Protection [2019] FCA 1089; EZC18 v Minister for Home Affairs [2019] FCA 2143.(Emphasis added)
The Applicants are effectively asking me to ignore those binding decisions in favour of the obiter comments made by Snaden J in GLD18 at [103] as set out above. His Honour was not expressing a concluded view and the view that he did express appears to be at odds with a body of authority. I note the Minister’s submissions at [29] that his Honour’s reference to "those who think otherwise" include Bell and Nettle JJ who dismissed an application for special leave on the point decided by Reeves J in CHB16, on the basis that there was no reason to doubt the correctness of the Federal Court's decision in CHB16: see CHB16 v Minister for Immigration and Border Protection and & Anor [2019] HCASL 377.
It seems that if I were to adopt the approach put by the Applicants in their submissions, I would find myself not following binding authority. As was stated by the majority in GLD18 at [61]:
“61. Whether or not an individual judge of the Federal Circuit Court considers any “doubt” attaches to a decision of this Court, a Federal Circuit Court judge is bound to follow a decision of this Court unless it can be lawfully distinguished. As a member of a court whose orders are subject to the exercise of appellate jurisdiction by this Court, a Federal Circuit Court judge is obliged and required to follow a decision of this Court, whether the decision is made in this Court’s original or appellate jurisdiction.”
This ground of review must fail.
Ground 3 – Breach of section 499 for failure to consider DFAT Report
The Applicants submit at [42] that, by reason of the Ministerial Direction No. 56, made under s499(1) of the Act, the Tribunal is obliged to take into account a DFAT report, containing country information assessment made for the purposes of protection status determination processes.
The Applicants submit that the ‘DFAT Country Information Report Nepal’ dated 21 April 2016 was such a report, the Tribunal decision made no reference to the DFAT report and, accordingly, the Tribunal was in breach of its obligations.
It is further submitted at [47] that the contents of the DFAT report – in particular those part of those parts but relating to the provision of healthcare and the fact that healthcare is only provided to Nepali citizens – were critical to the decision that the Tribunal was required to make. On that basis, the Applicants submit at [48] that the Tribunal's failure to have regard to the DFAT report was material and therefore a jurisdictional error.
A fair reading of the Tribunal's decision indicates that it did have regard to the country information, including the DFAT report.
The Tribunal noted that it was required to take into account country information prepared by DFAT: see Tribunal’s decision at [22]. At [32] of its decision, the Tribunal stated that it took into account all available evidence before it in order to reach its decision. At [80] of its decision, the Tribunal referred to documents provided by the Applicants on
3 August 2016 and 29 August 2016 “including country information about Nepal and India”. The Tribunal referred to country information that it considered in the course of reaching its decision concerning the right to enter and reside in Nepal: see Tribunal’s decision at [165] and [174].
It is reasonable to infer that the Tribunal considered all of the available country information for the purposes of reaching its decision,
including the country information that is specifically referred to in the Tribunal’s decision.
Further, even if there had been a failure on the part of the Tribunal to take into account the country information contained in the DFAT report regarding free mental health and medical treatment, because of the Tribunal’s findings in relation to the lack of access to free medical assistance not constituting a risk of significant harm, the failure to have regard to that particular information is not material. There was no probative material in the DFAT country information to the effect medical care would intentionally be withheld from the Applicants for a convention reason, or at all, if they were to reside in Nepal.
I accept the First Respondent’s submission at [21] of their submissions that a failure to consider that information could not materially affect the Tribunal's decision that the Applicants were not owed protection obligations by operation of s36(3) and therefore could not constitute a jurisdictional error: see Hossain v Minister for Immigration (2018) 264 CLR 123 at [30] – [31] per Kiefel CJ, Gageler and Keane JJ.
This ground of review must fail.
Conclusion
For these reasons, each ground of review as set out above must fail.
As such, the application for judicial review filed on 29 November 2016 and amended on 16 March 2020 must be dismissed.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 20 January 2021
Corrections
Amendment of Counsel for the Respondent’s name from ‘Ms Amarnoo’ to ‘Ms Amamoo’.
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