EZC18 v MHA
[2019] FCCA 464
•1 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EZC18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 464 |
| Catchwords: MIGRATION – Application for review of decision of Administrative Appeals Tribunal – applicant citizen of the United Kingdom resident in Australia for in excess of fifty years – application for protection visa on the basis of complementary protection obligations – applicant elderly person in poor health convicted of sexual offences involving minors – as a consequence applicant has failed character test – AAT accepted evidence that applicant had significant risk of suicide if returned to UK – statutory construction – has AAT correctly considered complementary protection criteria – is applicant at serious risk of suffering harm as a consequence of being arbitrarily deprived of his life – interpretation of the phrase – reference to context and other extraneous materials – no jurisdictional error established – AAT correct to hold arbitrary deprivation of life must emanate from a third party – AAT followed normal practices of statutory interpretation – harm must have a casual link to treaty obligations – AAT entitled to find applicant was not at risk of suffering serious harm as consequence of being arbitrarily deprived of life – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss: 5H; 5J; 36; 65; 198(6); 474; 501(3A) Migration Regulations 1994 (Cth): Schedule 2 |
| Cases cited: Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration v Guo (1997) 191 CLR 559 Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Craig v South Australia (1995) 184 CLR 163 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR27 SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936 MZAAJ v Minister for Immigration & Border Protection [2015] FCCA 151 MZAAJ v Minister for Immigration & Border Protection [2015] FCA 478 Appellant S395/2002 v Minister for Immigration & Border Protection (2003) 216 CLR 473 Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2004) 126 FCR 54 PJB v Melbourne Health [2011] VSC 327 [80]-[83] |
| Applicant: | EZC18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 386 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 14 December 2018 |
| Date of Last Submission: | 14 December 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 1 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Finlayson |
| Solicitors for the Applicant: | Diaspora Legal |
| Counsel for the Respondents: | Mr d'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for review filed 13 September 2018 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,728.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 386 of 2018
| EZC18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a British citizen. He was born in Cumnock, Scotland on 24 January 1932. He migrated to Australia, with his now deceased spouse and three children, in June 1964. He has never applied nor been granted Australian citizenship. He remained living in Australia, pursuant to a permanent resident visa, issued under the provisions of the Migration Act 1958.[1]
[1] Hereinafter referred to as “the Act”
On 10 March 2016, the applicant was convicted of two counts of sexual exploitation of a minor, in the District Court of South Australia, and sentenced to four years imprisonment, with a non-parole period of one year. The victims of the crimes were two of his granddaughters, who were each under fourteen years of age at the time of offending.
The applicant is in poor health. He suffers from atrial fibrillation; type 2 diabetes; hypertension; hypercholesterolaemia; hypothyroidism; congestive cardiac failure; cardiovascular disease; and various lung diseases. In the past he has suffered from bowel cancer. He has hearing loss; blindness in one eye; suffers from arthritis; and has mobility issues. He has also been diagnosed with some form of dementia.
On 22 August 2016, a delegate of the Minister for Immigration & Border Protection cancelled the applicant’s permanent resident visa pursuant to the provisions of section 501(3A) of the Act. This requires that any migration visa held by a person is to be cancelled if that person does not pass a character test because he/she has been convicted of a sexually based offence, involving a child, and has been sentenced to a term of full-time imprisonment.
On 8 November 2017, the Minister for Immigration & Border Protection[2] declined to revoke his delegate’s decision to mandatorily cancel the applicant’s visa. The applicant has now finished his sentence of imprisonment and is now in immigration detention.
[2] Hereinafter referred to as “the Minister”
On 13 March 2018, the applicant applied for a protection visa pursuant to section 36 of the Act, on the basis that Australia had an obligation to provide him with protection.
The various bases, on which the applicant claimed to be at risk, if not granted protection, can be summarised as follows:
·If returned to the United Kingdom, he would die or commit suicide;
·He is not entitled to social security in the United Kingdom;
·The British charity responsible for assisting repatriated prisoners would not be able to assist the applicant because of his numerous health concerns;
·Given the period of his absence from the United Kingdom, the applicant could not be guaranteed housing or social care in Britain;
·It would be medically unsafe for the applicant to be returned to the United Kingdom;
·His separation from his partner would cause him severe emotional hardship;
·The applicant’s age, health problems and lack of support, in the United Kingdom, meant that he faced significant impediments to being resettled in that country;
·His cognitive impairment would make it impossible for him to function on resettlement.
The application for protection was supported by a medical report of a psychiatrist, Dr Jules Begg, dated 12 March 2018. Dr Begg diagnosed the applicant as suffering from a major depressive disorder and, due to his other circumstances, considered that the applicant was at “high risk of suicide if he is deported”.[3]
[3] See Casebook at 46
On 14 March 2018, a delegate of the Minister declined to grant the applicant a protection visa. As a consequence, he applied for a review of this decision in the Administrative Appeals Tribunal.[4] On 7 August 2018, the AAT affirmed the decision not to grant the applicant a protection visa.
[4] Hereinafter referred to as the “AAT”
On 13 September 2018, the applicant commenced proceedings in this court seeking judicial review of the decision of the AAT and in particular that a writ of certiorari be granted to quash the decision of the AAT. The grounds of the application are as follows:
“The Tribunal erred in its jurisdiction in the reasoning at paragraph 49 in holding that suicide could not be harm inflicted by a third party and therefore not within the scope of arbitrary deprivation of life within the meaning of s36(2A) of the Migration Act and in the reasoning at paragraph 50 that there must be a third party involved in the infliction of harm to bring it within the scope of s36(2A) of the Migration Act.
Because of the erroneous reasoning in ground 1, failed to consider whether 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.”
The applicable legal framework under the Act
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of a protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·being subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering persecution if returned to a particular country.
Subsection (2A) defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life;
·being subject to the death penalty;
·being subject to torture;
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
Section 36(2A) is limited by the provisions contained in section 36(2B) which indicates that a person seeking complementary protection is not taken to be at risk of suffering significant harm if:
·he/she could reasonably relocate to a safe area of the country concerned;
·he/she could seek protection from state based authorities in that country;
·the real risk faced was a generic one rather than one germane to the person concerned.
In Minister for Immigration & Citizenship v SZQRB[5] the Full Court of the Federal Court had held that the risk threshold for complementary protection (real risk) under s.36(2)(aa) of the Migration Act is equivalent to the real chance test which applies with respect to Convention obligations enshrined in s.36(2)(a) of the Act, namely that there is a real chance that the person will suffer significant harm.[6]
[5] Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505
[6] Ibid at 551 [248] per Lander & Gordon JJ and 557 [297] per Besanko & Jagot JJ
The expression real chance derives from Chan v Minister for Immigration & Ethnic Affairs.[7] In the case, Mason CJ said as follows:
“… I prefer the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring …”
[7] Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 389
In both Chan and another case Minister for Immigration v Guo,[8] the High Court has indicated that a fear can be well-founded even if there is no certainty or even probability that it will be realised; or even though there is only a ten percent chance that persecution will occur. However far-fetched possibilities of persecution must be excluded.
[8] Minister for Immigration v Guo (1997) 191 CLR 559
Accordingly, in order to satisfy the criteria attaching to the grant of complementary protection visa, the applicant must satisfy the decision maker concerned that he has a substantial and distinct risk of suffering significant harm if returned to the UK.
In this particular case, the applicant does not contend that he is a refugee for the purposes of section 5H. The grounds for his application turn on the complimentary protection provisions. It is his position that as there is evidence, in the form of the assessment of Dr Begg, that he will commit suicide, if returned to the United Kingdom. As a consequence it is contended, on his behalf that there is a real chance that he will suffer significant harm through the arbitrary deprivation of his life within the terms envisaged by section 36(2A).
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[9]
[9] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[10]
[10] See Craig v South Australia (1995) 184 CLR 163
In order to be successful in his application for review, it will be necessary for the applicant to demonstrate an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own discretion for that of the Tribunal.
The decision of the AAT
The AAT summarised the applicant’s claim for protection in the following terms:
“The applicant is an 86 year old Scotsman who has lived in Australia for 54 years. He left Scotland following a mining disaster in which four of his colleagues were interned in the collapsed mine shaft. He has considerable medical issues. The applicant fears returning to the UK for the reason of dying on the flight. He also has threatened suicide as he does not want to die alone in Scotland. The applicant had two brothers who both passed away and has no friends or relatives in the UK. The applicant also fears his living circumstances were he to return claiming that other than two weeks accommodation he would not have a place to stay. He is a convicted paedophile having being found guilty of crimes two years earlier.”[11]
[11] See Casebook at 245 [10]
The evidentiary findings of the AAT, with which the applicant has no quibble, can be summarised as follows:
·The applicant is in poor health and visits a medical practitioner at least monthly;
·It did not reject Dr Begg’s view that the applicant was at high risk of suicide, if deported;
·He had previously lived with his partner of sixteen years, who provided care for him;
·The applicant would qualify for a part UK/Australian pension but would experience difficulty obtaining suitable accommodation for himself if returned to the UK. However a socio-economic hardship suffered by him would not be for a Convention reason;
·It was accepted that the applicant belonged to a specific social group, namely that of convicted paedophiles, returning to the UK and he would come to the notice of UK authorities as a result;
·He would not be subject to any form of persecution because of his membership of a social group comprising convicted paedophiles;
·It was not accepted that any aged care facility or the police would subject the applicant to any form of persecution as a consequence of his membership of this group;
·The UK had health systems in place to provide service to elderly and infirm individuals, such as the applicant;
·The possibility of the applicant suffering harm as a result of having to travel for an extended period of time by aeroplane was remote and, as such did not amount to him being at real risk of suffering significant harm.
The applicant does not seek to challenge any of these findings on jurisdictional grounds. The focus of his review application is on the evidence provided to the AAT by Dr Begg that he was at significant risk of committing suicide, if returned to the UK because of his resulting separation from his carer, other family members and the community in which he had lived for the past fifty-four years.
In these circumstances, his counsel, Mr Finlayson submits that AAT erroneously interpreted the expression and concept of a person who is arbitrarily deprived of life, as contained in section 36(2A) of the Act. In his contention, a person can be arbitrarily deprived of life, if the action is occasioned by his/her own hand, if a state based authority fails to take adequate precautions or put in place sufficient measure to prevent the suicide in question occurring. The emphasis, in his submission, being on the meaning of arbitrarily in the context of the complementary protection provisions.
In this context, the AAT had available to it a paper prepared by Aida Ziganshina entitled Independent Research on Arbitrary Deprivation of Life.[12] Essentially, in Ms Ziganshina’s thesis, an action result in a person being deprived of life can be authorised by domestic law and still remain arbitrary. The expression is to be interpreted broadly, whilst bearing in mind it will have a variety of meanings depending on context.
[12] See Case Book at 220 - 242
By way of example, it is submitted that the suicide of a person in lawful custody may be characterised as arbitrary, if the state authority concerned has acted negligently through failing to provide adequate safeguards to prevent the self-harm in question. Such state authorities are accountable to a higher standard as a consequence of their deprivation of the liberty of the person who is subject to their control.
Ms Ziganshina cited a United Nations Special Rapporteur, Manfred Nowak, who defined arbitrariness as difficult to define in abstract, but in the context of deprivation of life it is a concept linked to ideals of justice and covered both intentional and unintentional acts and one which contained elements of unlawfulness, injustice, capriciousness and unreasonableness.
In this context, it is contended, on behalf of the applicant, given the fact that the AAT accepted he is at significant risk of suicide because of his idiosyncratic circumstances on return to the UK, it is axiomatic that Australia owes him complementary protection obligations and it is immaterial that his death may be self-initiated.
Essentially, Mr Finlayson contends that there is nothing pertaining to the process of removing a person from of Australia, who has had his/her visa cancelled on character grounds, which can envisage the death of that person. Therefore, in this case, as there is cogent evidence available to indicate that the removal process may result in such an outcome, it is an arbitrary one in the sense envisaged by section 36(2A)(a) of the Act..[13]
[13] See Applicant’s written submissions at 9
The AAT considered Ms Ziganshina’s thesis to be a helpful insight into international jurisprudence but found it was not bound to consider any possible breaches, by Australia, of the International Covenant On Civil and Political Rights when considering the complementary protection criterion under the Act.[14]
[14] See Case Book at 251 [38]
The AAT noted that the expression arbitrarily deprived of life was an expression not defined within the applicable legislation. In these circumstances, the adverb arbitrarily should be given it ordinary meaning, which it found to be concerned with “capriciousness, unpredictability, injustice and unreasonableness” in the sense of “not being proportionate to the legitimate aim sought”. Finally, the AAT found that the natural reading of section 36(2A) required the harm arbitrarily inflicted on the person concerned to emanate from a third party.
In the context of the issue of the applicant’s circumstances, if returned to the UK, leading him to feel isolated and lonely and at risk of suicide and whether these factors engaged the complementary protection obligations of Australia, the AAT found as follows:
“The applicant has claimed that he will face harm for reasons and loneliness and suicide (this was reported by him and others to the Tribunal). I find that loneliness does not amount to serious harm or significant harm in of itself but can be contributing factor to increasing the likelihood of suicide, which is. But while the threat is regrettably credible and should be taken into consideration by the Department if planning for deportation proceeds. I find that any possibility of self-harm exacerbated by loneliness or otherwise does not have a nexus with the Act’s requirements of a well-founded fear of persecution being for reasons of race, religion, nationality, political opinion and membership of a particular group.
I also note that the complementary protection language of s.36(2A) is passively worded such as ‘the non-citizen will be arbitrarily deprived’ or a non-citizen ‘will be subjected to cruel …’. This is indicative of the correct interpretation being that the harm is inflicted by a third party upon the non-citizen. I do not accept that either suicide or loneliness could be considered as harm inflicted by a third party upon the applicant. For these reasons I find that the applicant does not have a well-founded fear of harm or face a real risk of significant harm on the basis of self-harm.
I have also turned my mind to consider the circumstances cumulatively. The applicant may at any one time be without a home and without access to medical support and face loneliness and thoughts of suicide. Such a circumstance will aggravate the risks identified above but the same reasoning applied earlier remains true in such circumstances. Specifically, the harm must be for reasons prescribed in the Act for s.36(2)(a) to be met. Similarly, there must be a third party involved in the infliction of harm to meet s.36(2)(administrative assessment) and/or the concept of arbitrary deprivation of life needs to be present which, even when considered cumulatively, it is not.”[15]
[15] Ibid at 253 [48] – [50]
On this basis the AAT affirmed the decision of the ministerial delegate not to grant the applicant a protection visa. As previously indicated, it is this decision which is subject to judicial review in the current proceedings.
Discussion
The difficulty arising in this case is that the expression arbitrarily deprived of life is not defined within the Act. Other aspects of significant harm, listed in section 36(2A) such as torture; cruel or inhuman treatment or punishment; and degrading treatment or punishment are defined. Necessarily, in my view, these definitions provide context to assist the court, in determining the issues arising in this case, as will the overall legislative intent underpinning the provision.
In these circumstances, in my view, it is necessary for the court, as did the AAT, to follow normal practices of statutory interpretation. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[16] the High Court said as follows:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (citations removed)
[16] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR27 at [47]
In SZTAL v Minister for Immigration & Border Protection[17] in the specific context of refugee law, particularly the provisions relating to complementary protection, the majority of the High Court said as follows:
“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”
[17] SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936 at 939 at [14]
In addition, section 15AB of the Acts Interpretation Act 1901 (Cth) authorises the use of extrinsic material, such as explanatory memoranda and second reading speeches in circumstances where it is necessary to confirm that the meaning of the provision is the ordinary meaning conveyed by its text. Of particular relevance in this case, section 15AB(2)(d) authorizes reference to a treaty.
In this context, counsel for the Minister, Mr d’Assumpcao relies on the second reading speech of Mr Bowen, formerly Minister for Immigration & Citizenship, when the bill which introduced the complementary protection provision of section 36 into the Act, was debated in the House of Representatives, as well as the Explanatory Memorandum to the bill concerned, the Migration Amendment (Complementary Protection) Bill 2011.
Mr Bowen indicated that the purpose of the bill was to honour Australia’s non-refoulement obligations arising under its ratification of the International Covenant on Civil and Political Rights[18] and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[19] Particularly relevant were Articles 6 & 7 of the ICCPR.
[18] Hereinafter referred to as ICCPR
[19] Hereinafter referred to CAT
Accordingly, in my view, it is appropriate, for this court, in its interpretation of section 36, to look to both the ICCPR and the CAT to determine the meaning of significant harm in the context of the person concerned being arbitrarily deprived of life.
Articles 6 & 7 of the ICCPR read as follows:
“Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.[1] This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
The predominant focus of Article 6 is on state sanctioned executions and genocides, which are by their nature intended to occur. In each case, either a state based authority (in the case of an execution) or a ruling clique has determined on the killing of a particular ethnic or religious group (in the case of genocide). Judicially authorised executions are recognised but only in closely prescribed circumstances.
In the case of the applicant in the present case, neither the UK nor Australian authorities actively intend his death, in the sense that either state actively seeks it or has put in place formative steps to ensure that it will definitely occur at some specific time, as with an execution. Accordingly, in the current case, the authorities do not mean the applicant’s death to occur, but they can foresee its possibility, given the applicant’s idiosyncratic circumstances, particularly his psychiatric prognosis.
Necessarily given the applicant’s accepted state of psychological infirmity, his death at his own hand, is a foreseeable consequence of his forced removal from Australia, which is known to the relevant authorities in this country. The question for the court, which arises, is whether this situation is equivalent to an arbitrary action, of the state, likely to lead to the deprivation of life. As will be seen, in SZTAL, Edelman J referred to this concept as oblique intention.
As indicated above, the Migration Act[20] provides definitions of torture; cruel or inhuman treatment or punishment; and degrading treatment or punishment; which are likely to be of assistance in ascertaining the prerequisite level of intention applicable to the actions of state based authorities within the area of complementary protection obligations.
[20] See section 5
Torture is defined as follows:
“torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”
Cruel or inhuman treatment is defined as follows:
“cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”
Degrading treatment or punishment is defined 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.”
The expression significant harm is defined solely by reference to the categorisations contained in section 36(2A). In my view, this is significant. It is an essential prerequisite, for the grant of a complementary protection visa, that a person is at real risk of significant harm in the sense envisaged by section 36(2A), when read as a whole.
IN SZTAL the High Court, by reference to the second reading speech, explained why the legislature had seen fit to enact the complementary protection provisions of the Act, in addition to those which were directed towards providing sanctuary to those individuals accepted to be refugees.
Edelman J explained that, prior to the amendment, there was a lacuna in the Act, applicable to individuals who were not refugees according to the strictures of the 1951 Refugee Convention but who would be at risk of suffering harm in the senses envisaged by the ICCPR and the CAT, which Australia has ratified and accordingly has obligations to ensure compliance with their directives.
This obligation created a potentially lengthy and stressful process involving such individuals, who fell within the purview of either the ICCPR or the CAT, but who were not necessarily refugees, applying administratively for refugee status, being refused and then applying for direct ministerial intervention on another convention basis.
As a consequence the Act was amended to establish an efficient and transparent scheme to consider the claims of such individuals, whilst allowing Australia to meet its non-refoulement obligations and reflect the country’s “longstanding commitment to protecting those at risk of the most serious forms of human rights abuses”.[21]
[21] The words of Mr Bowen from the second reading speech.
In SZTAL the applicants concerned had left their country of origin (Sri Lanka) illegally to seek asylum in Australia. Their claims for asylum had been rejected. As a consequence of their illegal departure from Sri Lanka, they were potentially liable to be imprisoned, on their return, in a custodial environment, which would not meet international standards. The issue arising being whether this would amount to significant harm on the basis that it was intentionally inflicted pain or suffering emanating from a state based authority.
The majority (Kiefel CJ, Nettle & Gordon JJ) said as follows:
“In the present cases the question for the Tribunal was whether a Sri Lankan official, to whom knowledge of prison conditions can be imputed, could be said to intend to inflict severe pain or suffering on the appellants or to intend to cause them extreme humiliation by sending them to prison. That question was to be answered by the application of the ordinary meaning of "intends", as the Tribunal concluded.
As has been explained, evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention. In some cases, the degree of foresight may render the inference compelling. But in the present matters, having regard to the evidence before the Tribunal (including evidence about what the Sri Lankan authorities might know), the Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict the requisite degree of pain or suffering or humiliation.” (citations removed)[22]
[22] Supra at 943 [28] – [29]
Edelman J considered the proposition, which he referred to as oblique intention, regarding whether intention, in the context of a person suffering severe pain or suffering, could be attributed to a state based authority once knowledge of the consequence of a particular act could be predicted by that authority with a sufficient degree of certainty. He rejected the proposition holding that intention should be given its ordinary meaning, namely, in this context, the person intending to inflict suffering must mean to do so.
In this context, it is germane that the consideration of whether a person will be arbitrarily deprived of life does not specifically depend on any attribution of intent to any person, unlike the other instances of significant harm delineated in the section.
As previously indicated, it is the submission of Mr Finlayson that the concept can include unintended acts, which are analogous to those of negligence or wilful disregard. Essentially, the authority may not intend, in the sense of mean or will it to happen, for a person to lose his/her life, but be well aware, nonetheless, that this will be a foreseeable consequence of its actions.
Essentially, he would submit that the court cannot extrapolate the meaning of arbitrarily deprived of life from the more exhaustively defined concept of significant harm in section 36(2A) which require the attribution of intent.
MZAAJ v Minister for Immigration & Border Protection [23] Judge Riley was dealing with a judicial review matter, in respect of a complementary protection claim, concerning a Sri Lankan Tamil, who suffered significant diabetes and kidney disease requiring regular dialysis. Again, given it developmental status, Sri Lanka could only provide limited dialysis, which had the potential to have life threatening consequences for the applicant, if returned there.
[23] MZAAJ v Minister for Immigration & Border Protection [2015] FCCA 151
Her Honour dealt with this point succinctly as follows:
“…the Tribunal was aware that the definition of significant harm included the arbitrary deprivation of life as the Tribunal set out that aspect of the definition in paragraph 15 of its reasons for decision. The Tribunal discussed in its reasons for decision the possibility of the applicant facing cruel or inhuman treatment or punishment and degrading treatment or punishment. However, the Tribunal did not discuss in its reasons the possibility of the applicant facing arbitrary deprivation of life.
That would seem to be because the Tribunal did not consider that the prospect of the applicant dying as a result of being unable to access dialysis in Sri Lanka would fall within the concept of the arbitrary deprivation of life. It seems to me that the Tribunal was correct in so concluding.
The concept of arbitrary deprivation of life concerns such things as extrajudicial killing and the excessive use of police force. It does not concern the consequences of scarce medical resources in developing countries.”[24]
[24] Ibid at [40] – [42]
On appeal, Pagone J again dealt with the issue in brief terms. He said as follows:
“The words “arbitrarily deprived” are to be given their ordinary meaning. In this case the Tribunal found that any lack of adequate medical treatment would not result from the first appellant’s ethnicity or particular circumstances but from the general circumstances faced by all Sri Lankans. The Tribunal did not expressly mention s 36(2B)(c) in its reasons but did find, for the purposes of that provision, that the risk of harm from inadequate medical treatment was a risk faced by all Sri Lankans when concluding that the first appellant would be excluded from the operation of the complementary protection regime.”[25]
[25] MZAAJ v Minister for Immigration & Border Protection [2015] FCA 478 at [6]
In this context, counsel for the Minister, Mr d’Assumpcao submits as follows:
“…the ordinary meaning of the words ‘arbitrarily deprived’ read in the context of the Act and the policy underlying their introduction, mean that the harm is concerned with matters such as extrajudicial killing and the like.”[26]
[26] Minister’s written submissions at [14]
I agree with this submission. The risk of significant harm facing the applicant in this case is not one which emanates specifically from any state based authority or its agents or proxies. The applicant faces the risk of death, at his own hand, because of the travails of loneliness; social isolation; compounded by old age and poor health. These are risks likely to be faced by many individuals, in both this country and the UK.
As the AAT found, these dangers do not depend on membership of any of the particular groups delineated in the Refugee Convention. In addition they are not attributes which can be necessarily inflicted upon one person by another. Loneliness is subjective. In my view, in a qualitative sense, it is different to the loneliness or sense of social isolation, which would flow from a person being subject to solitary confinement in a penal context. In addition, such confinement would arise as a direct result of the intention of the authority directing the confinement.
The Oxford English Dictionary defines arbitrary in the following terms:
·Dependent on will or pleasure;
·Based on mere opinion or preference as opposed to the real nature of things;
·Capricious, unpredictable, inconsistent;
·Unrestrained in the exercise of will or authority;
·Despotic or tyrannical.
The same dictionary defines verb deprive as “strip, dispossess, debar from enjoying”. It is a transitive verb which necessitates in its usage that it has a direct object. Accordingly, for the applicant to suffer significant harm, pursuant to this criterion, a decision maker must be satisfied that another actor is intent on dispossessing another person of his/her life in a despotic or tyrannical fashion or otherwise subject to whim or caprice.
Despotism and tyranny are attributes of some form of malign authority, inimical with any consideration of internationally sanctioned standards of human rights. In my view there is a consistency between the various forms of significant harm delineated in section 36(2A) in that each requires an intended consequence. This follows from the specific use of the word intend and in the context of deprivation of life the use of a transitive verb.
It is also clear that section 36(2A) was created to give substance to Australia’s non-refoulement obligations at an International level. Section 36(2B) limits these obligations by the principle of internal relocation and in cases where the harm faced is generic in nature. In my view, the harm concerned, given the tenor of the second reading speech, must also have a causal connection to one of Australia’s obligations under either ICCPR or CAT.
In Appellant S395/2002 v Minister for Immigration & Border Protection[27] McHugh and Kirby JJ, albeit in the context of the protection owed to refugees, spoke of Australia’s obligation to protect individuals from the harm their governments wished to inflict or were powerless to prevent. They further said as follows:
“Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.”
[27] Appellant S395/2002 v Minister for Immigration & Border Protection (2003) 216 CLR 473 at [40]
In this case, the AAT carefully considered the state based assistance, which would be available to the applicant upon his repatriation to the UK. It concluded that he would have reasonable access to health treatment and some social security support.
As such, the applicant was not likely to be subject to any direct form of discrimination or harm emanating from the UK authorities or subject to the infliction of any sort of harm by others, whom the government was either unable or unwilling to restrain. The direct harm, in this case, would come from the applicant himself by dint of his circumstances.
The AAT did find that the applicant was an ill 86 year old man, who would struggle to find accommodation, in the short term, in Scotland. It found that these circumstances did not amount to persecution for the purposes of the Act. As previously indicated there is no challenge to this finding. The AAT found as follows:
“While it is the case that the applicant will need to wait to be placed into housing, he is not being waitlisted for reasons of membership of a particular social group. Research undertaken by his daughter and submitted to the tribunal suggests that he will be prioritised if he meets certain needs based criteria. Similarly, there is no evidence that non-state actors such as charities who may provide social housing, would exclude the applicant for any of the particular social groups identified above.
In considering complementary protection I note that the way s.36(2)(aa) is structured, there has to be an act or omission by which the requisite level of pain or suffering is intentionally inflicted (for cruel or inhuman treatment or punishment and torture) or which is intended to cause extreme humiliation (for degrading treatment). It has not been put to the Tribunal nor does it arise from the material that there is an element of intentionality behind any socio- economic hardship he will encounter.”[28]
[28] See Case Book at 249 [30] – [31]
In these circumstances, the situation facing the applicant may be regarded as one characterised by the relevant authorities having a callous disregard for his safety and well-being but not, in my view, one characterised by those authorities having a tyrannical or capricious intent to end his life. The distinction is a fine one but is significant given the context and intent of the relevant legislation.
In the second reading speech, in my view, Mr Bowen gave an example of a person who would be entitled to Australia’s protection, although not a refugee, according to the complementary protection provisions, which would fall within the rubric of being at risk of suffering serious harm because of the risk of suffering arbitrary deprivation of life. He said as follows:
“Applicants who fall outside these categories are not considered refugees and, consequently, their applications must be rejected by the Department of Immigration and Citizenship and also by the Refugee Review Tribunal.
But some of these people are fleeing significant harm—be they women fleeing so called ‘honour killings’ or, in some certain circumstances depending on the nation, people fleeing persecution on the basis of their sexual preference.
These people can fall outside the categories recognised by our current protection visa process.
So their applications will be rejected at first instance—and again at review—even where Australia’s non-refoulement obligations and other international treaties ensure that we cannot and will not send them back to their countries of origin.”[29]
[29] Australia, House of Representatives, Parliamentary Debates (Hansard) 24 February 2011, 1356
The example given of the honour killing is apposite to the current matter. The victim of an honour killing will have been axiomatically arbitrarily deprived of life in an unrestrained and tyrannous manner. The death will involve the actions of others and be meant, by them, to occur. If it occurs with the passive disregard of the relevant authorities, it will be tantamount to the commission of significant harm, which the government condones. It will be antipathetic to the principles of human rights to which Australia adheres. As such, in my view, it will not be analogous to the situation confronting the applicant.
In the current matter, neither the Australian nor the UK governments condone the applicant engaging in self-harm. Any potential self-harm is unlikely to have the involvement of another individual actor and, if it does, it will arise with the acquiescence of the applicant. As such, there is no suggestion of any direct act or omission attributable to any government agency.
The AAT, in my view, considered the central issue in this case – namely whether the applicant was entitled to the grant of a protection visa, on complementary protection grounds, on the basis that he was at real risk of suffering significant harm, if repatriated to the UK, because there was a psychiatric diagnosis that he was at risk of committing suicide.
That suicide represents significant harm in a generic sense cannot be doubted. However, it is clear that, for complementary protection purposes, the significant harm must fall within one of the categorisations provided by section 36(2A). The AAT found that it did not.
In its decision, the AAT applied Departmental policy, which indicated as follows:
“…the policy guidelines state, ‘If a non-citizen’s life expectancy would be threatened by being removed due to a pre-existing medical condition (both terminal and non-terminal in nature), this would not amount to an arbitrary deprivation of life. Deprivation of life due to natural causes is not arbitrary’.”[30]
[30] See Case Book at 250 [36]
In my view, this is consistent with the principles delineated in MZAAJ, which dealt with the cases of a returnee who was liable to suffer harm as consequence of non-availability of first world medical services. In this case, the applicant’s depression and vulnerability are, to some extent, pre-existing conditions, which are liable to exacerbation if he is returned to the UK. However, the AAT was satisfied that he would be able to access appropriate medical services in the UK.
Whether death by suicide can be characterised as one arising through natural causes raises difficult philosophical issues, which I am both disinclined and ill-equipped to discuss. However, I am satisfied that it is an event which would not involve direct state intervention and in addition, if the authorities in the UK are adequately alerted the applicant could be provided with appropriate medical supports and safeguards.
What is fundamentally different between this case and other cases involving honour killings; exposure to violence because of sexual preference; or the return of a person to an environment in which family violence is prevalent and condoned; is that each of these exemplars of harm involves the actions of others; whilst in the applicant’s case, his harm is potentially self-actioned and self-directed.
Section 36 is directed towards ensuring Australia meets it international human rights obligations as entailed in its ratification of the Refugees Convention; the ICCPR; and the CAT. Each of these, in my view, is directed to provide protection, for individuals, from the despotic actions of states and any actors within states, whose tyrannical activities are not subject to the control of state based authorities, who have passively provided its imprimatur to such activities.
I appreciate that Article 2 of the ICCPR places emphasis on every human being’s inherent right to life. This statement prefaces sub-articles dealing with the imposition of the death penalty; genocide; the right to seek commutation or pardon in respect of a penalty of death; and negates it imposition for youths and pregnant women.
It is in the context of such matters – all involving state actions – that the phrase arbitrarily deprived of life appear. In this context, I agree with the submissions of counsel for the Minister, Mr d’Assumpcao that the Article is concerned with the concept of extra-judicial killings, which are state initiated. In my view, the Article does not create any obligations upon contracting states, in respect of ensuring the sanctity of life, in a more generic sense.
Other cases have considered the concept of arbitrariness in both judicial and administrative contexts. In Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri[31] the Full Court, after referring to various international covenants, considered that the concept of arbitrariness, albeit in the context of detention, was not to be equated only with ‘against the law’ but should be more broadly interpreted and take into account the proportionality and justice of the particular situation.
[31] Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2004) 126 FCR 54
Bell J (of the Victorian Supreme Court) took a similar approach in PJB v Melbourne Health,[32] which was a case concerned with the human rights of a disabled person, subject to guardianship, who wished to remain living in his home. Bell J said as follows:
“I therefore conclude that the human right in s 13(a) not to have your privacy, family, home or correspondence ‘arbitrarily’ interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.”
In the current matter, there is no suggestion that any act of illegality can attach to the actions of either Australian government officials in deporting the applicant or of the UK authorities in receiving him.[33] If the applicant’s status as a non-citizen is confirmed his deportation can be the only legal consequence of such confirmation. In these circumstances, governmental actions, although of great moment to the applicant personally, cannot be characterised as unpredictable.
[33] See Migration Act at section 198(6)
As such, in my view, the actions of the authorities in following a legal direction to remove the applicant from Australia cannot be described as being unjust or illegitimate notwithstanding the possibly severe consequences they hold for the applicant personally.
Conclusions
In these circumstances, I do not consider that the decision of the AAT is vitiated by any species of jurisdictional error. In my view, it correctly applied the criteria relevant to whether there was a real risk that the applicant would suffer significant harm, if returned to the UK, arising under section 36(2)(aa) and 36(2A) of the Act.
In my view, it was legally open to the Tribunal to find that Australia did not owe the applicant a complementary protection obligation on the basis that he was not subject to a real risk of being arbitrarily deprived of his life, if returned to the UK.
The Minister has sought costs. Given the review application has been dismissed, I will follow the normal course and award costs in the first respondent’s favour pursuant to the applicable cost scale in an amount of $6,728.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 1 March 2019
[32] PJB v Melbourne Health [2011] VSC 327 [80]-[83]
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