EZC18 v MHA

Case [2019] FCA 2143

FEDERAL COURT OF AUSTRALIA

EZC18 v Minister for Home Affairs [2019] FCA 2143

Appeal from: EZC18 v Minister for Home Affairs & Anor [2019] FCCA 464
File number: SAD 46 of 2019
Judge: BESANKO J
Date of judgment: 19 December 2019
Catchwords: MIGRATION — appeal from an order made by the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal — where the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a protection visa — where the appellant contended that he was at significant risk of committing suicide if returned to the United Kingdom — whether suicide amounts to an arbitrary deprivation of life within the terms of ss 36(2A)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) — whether s 36(2A)(a) is restricted to the risk of being arbitrarily deprived of life by a third party or third parties — whether the issue of whether suicide amounts to an arbitrary deprivation of life is determined by reference to the receiving country’s response to the risk of suicide — whether the primary judge erred by limiting the operation of s 36(2A)(a) to states or state agencies
Legislation:

Acts Interpretation Act 1901 (Cth) s 15AB

Migration Act 1958 (Cth) ss 36, 65, 198, 501

Migration Amendment (Complementary Protection) Bill 2011 (Cth)

Cases cited:

Alcan (NT) Alumnia Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Case of Fernandes De Oliveira v Portugal [GC] no 78103/14, ECHR 2019/11
Keenan v United Kingdom (2001) 33 EHRR 38
MZAAJ v Minister for Immigration & Border Protection [2015] FCCA 151
MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478
Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2; [2012] 2 All ER 381
SZDCD v Minister for Immigration and Border Protection [2019] FCA 326

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Date of hearing: 2 October 2019
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 48
Counsel for the Appellant: Mr S Ower QC with Ms L Gavranich
Solicitor for the Appellant: Camatta Lempens Pty Ltd Lawyers
Counsel for the First Respondent: Mr P Macliver
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent entered a Submitting Notice, save as to costs

ORDERS

SAD 46 of 2019
BETWEEN:

EZC18

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

19 DECEMBER 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BESANKO J:

INTRODUCTION

  1. This is an appeal from an order made by the Federal Circuit Court of Australia on 1 March 2019. On…

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EZC18 v MHA [2019] FCA 2143
Case
[2019] FCA 2143
Decision Date

CaseChat Overview and Summary

In the matter of EZC18 v MHA, the appellant sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal), which affirmed a delegate's decision to refuse a protection visa under the Migration Act 1958 (Cth). The appellant, a British citizen with a history of residing in Australia, contended that he faced a significant risk of committing suicide if returned to the United Kingdom, which he argued amounted to an arbitrary deprivation of life under sections 36(2A)(a) and 36(2)(aa) of the Act. The appellant's application for judicial review was dismissed by the Federal Circuit Court of Australia on 1 March 2019, and he now appeals that decision. The central legal issues before the court were whether suicide constitutes an arbitrary deprivation of life under the Act, whether the relevant sections are limited to risks posed by third parties or state agencies, and if the assessment of such risks should consider the receiving country's response. The court examined the statutory language, relevant case law, and international obligations.

The court found that the term "arbitrarily deprived of life" in the Act implies harm intended by a third party, such as extrajudicial killings, rather than self-inflicted harm. The court distinguished between subjective loneliness and social isolation, which can be common experiences, and the specific context of solitary confinement in penal settings. The appellant's risk of suicide was attributed to personal circumstances rather than actions by UK authorities or others they could not restrain. The court concluded that the appellant's case did not meet the statutory criteria for protection as it did not involve harm from a third party or state agency. The court also noted that the appellant was not likely to face direct discrimination or harm from UK authorities.

The appeal was dismissed, and the decision of the Federal Circuit Court was upheld. The court found that the appellant's risk of suicide did not amount to an arbitrary deprivation of life under the Act, as it did not involve a third party or state agency imposing harm. The appellant's circumstances, while serious, did not meet the statutory criteria for protection as defined in the Act. Consequently, the appellant's application for a protection visa was correctly refused. The court's decision clarifies the scope of protection available under the Act and reinforces the requirement that harm must emanate from a third party or state agency to qualify for protection.

Orders

Orders of the court

1. The appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

This is an appeal from an order made by the Federal Circuit Court of Australia on 1 March 2019. On that day, the Federal Circuit Court made an order that the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) be dismissed. The Tribunal’s decision was to affirm the decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). THE FACTS The facts which follow are taken from the reasons for judgment of the Federal Circuit Court (EZC18 v Minister for Home Affairs & Anor [2019] FCCA 464). They are not in dispute. The appellant is a British citizen. He was born in Cumnock, Scotland on 24 January 1932. In June 1964, he migrated to Australia with his now deceased spouse and three children. He has never applied for, nor been granted, Australian citizenship. He has lived in Australia since June 1964 pursuant to a permanent resident visa issued under the provisions of the Act. On 10 March 2016, the appellant was convicted of two counts of sexual exploitation of a minor in the District Court of South Australia and sentenced to four years imprisonment. A non‑parole period of one year was fixed. The victims of his crimes were two of his granddaughters who were each under 14 years of age at the time of the offending. The appellant is in poor health. He suffers from the following medical conditions: 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. The appellant has a hearing loss, blindness in one eye, suffers from arthritis and has mobility issues. He has been diagnosed with a form of dementia. On 22 August 2016, a delegate of the Minister cancelled the appellant’s permanent resident visa pursuant to the provisions of s 501(3A) of the Act. This section provides that any migration visa held by a person is to be cancelled if that person does not pass a character test because he or 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 then Minister declined to revoke the delegate’s decision to mandatorily cancel the appellant’s visa. The appellant has completed his sentence of imprisonment and is now in immigration detention. On 13 March 2018, the appellant applied for a protection visa pursuant to s 36 of the Act on the basis that Australia had an obligation to provide him with protection. The primary judge summarised the various grounds upon which the appellant claimed to be at risk, if not granted protection, 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances, the Tribunal decided to affirm the decision of the delegate.THE DECISION OF THE FEDERAL CIRCUIT COURT The primary judge also noted that the expression “arbitrarily deprived of life” is not defined in the Act. His Honour referred to the general principles of statutory interpretation and, in that context, to Alcan (NT) Alumnia Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) at [14]; s 15AB of the Acts Interpretation Act 1901 (Cth) and the Second Reading Speech to the Migration Amendment (Complementary Protection) Bill 2011(Cth) and Articles 6 and 7 of the International Covenant on Civil and Political Rights 1966 (the ICCPR) and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (the CAT). The primary judge also considered the definitions in the Act of “torture”, “cruel” or “inhuman treatment” and “degrading treatment or punishment”. The primary judge referred to the decision of the High Court in SZTAL and the decision in MZAAJ v Minister for Immigration & Border Protection [2015] FCCA 151 and on appeal, MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478. The primary judge said that he agreed with the submission made by the Minister to the effect that the ordinary meaning of the words “arbitrarily deprived” read in the context of the Act and the policy underlying their introduction, means that the harm is concerned with matters such as extrajudicial killing and the like. The primary judge said that the risk of significant harm facing the appellant in this case is not one which emanates specifically from any state based authority or its agents or proxies. The appellant faces the risk of death at his own hand because of loneliness and social isolation compounded by old age and poor health. The primary judge said that these are risks likely to be faced by many individuals in both this country and the UK. The primary judge observed that loneliness is subjective and he said that, in his view, in a qualitative sense, it is different from 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 primary judge referred to definitions of the words “arbitrary” and “deprive” in the Oxford English Dictionary. The primary judge said that, in his view, there is a consistency between the various forms of significant harm delineated in s 36(2A) in that each requires an intended consequence. His Honour said that this followed from the specific use of the word “intend” and in the context of “deprivation of life”, the use of the transitive verb. The primary judge noted findings of the Tribunal that the appellant 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 harm by others whom the government was either unable or unwilling to restrain. The primary judge said:The direct harm, in this case, would come from the applicant himself by dint of his circumstances.

Ratio Decidendi

Legal Principle Established

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