GCLV v Minister for Immigration
[2020] FCCA 270
•14 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GCLV v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 270 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered there was before it claims that included a claim of a real chance of arbitrary deprivation of life – whether having considered there was such a claim the Tribunal proceeded on the incorrect basis that the arbitrary deprivation of life required an intention to inflict harm – jurisdictional error found. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36(2), 36(2A), 36(2B), 476, 477(1), 477(2), 501(3A), 501(6), 501(7)(c), 501CA |
| Cases cited: SZDCD v Minister for Immigration and Border Protection [2019] FCA 326 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 |
| Applicant: | GCLV |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1384 of 2019 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 January 2020 |
| Date of Last Submission: | 30 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr J F Gormly, by direct access |
| Solicitors for the First Respondent: | Ms A Lucchese of Sparke Helmore Lawyers |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s.477(1) of the Act for making an application for relief under s.476 of the Act in relation to the decision of the second respondent (Tribunal) made on 12 April 2019 is extended to 6 June 2019.
The decision of the Tribunal made on 12 April 2019 affirming the decision (delegate’s decision) of a delegate of the first respondent made on 21 February 2019 not to grant the applicant a Protection (Class XA) visa is quashed.
The Tribunal review the delegate’s decision according to law.
The first respondent pay the applicant’s costs set in the amount of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1384 of 2019
| GCLV |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The principal question that arises in this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) is whether, in the course of reviewing a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa), there was before the second respondent (Tribunal) a claim that if the applicant were to return to El Salvador there would be a real chance he would be arbitrarily deprived of life.
If that question is answered in the affirmative, a second set of questions arises; and these are whether the Tribunal considered that claim and, if it did, whether, as the applicant claims, the Tribunal applied an incorrect understanding of the expression “arbitrarily deprived of his or her life” in s.36(2A)(a) of the Act.
Extension of time
This statement of the issues assumes I am satisfied it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act extending the 35 day period prescribed by s.477(1) for making an application to this Court for a remedy under s.476 of the Act. I am so satisfied.
The applicant applied to this Court for relief in relation to the Tribunal’s decision 20 days outside the 35 day period prescribed by s.477(1) of the Act. The applicant has explained his delay. The applicant says he believed he could not apply to this Court without first paying the outstanding Tribunal fee of $1,764 which he could not afford to pay; he is in immigration detention; and he did not have the benefit of legal assistance. I find the explanation adequate, contrary to the submissions of the Minister.[1]
[1] First Respondent’s Written Submissions, [17]
Further, as should appear from these reasons for judgment, and contrary to the Minister’s submissions,[2] there is sufficient merit in the ground on which the applicant proposes to rely to warrant the making of an order under s.477(2) of the Act. Even if I had found the applicant’s explanation for delay inadequate, the apparent merits of the ground would nevertheless have led me to conclude it is necessary in the interests of the administration of justice to make an order under s.477(2) of the Act extending time.
[2] First Respondent’s Written Submissions, [18]
I propose, therefore, to order under s.477(2) of the Act that the 35 day period prescribed by s.477(1) of the Act be extended to 6 June 2019.
Background to the applicant’s claims for protection
The applicant is a national of El Salvador. He arrived in Australia on 17 July 1983 when he was 22 years of age as the holder of a K4721 visa (Special Humanitarian Programs – Central Americas). In 1994 the applicant was granted a class BF Transitional (Permanent) visa (BF visa).
In the words of the Tribunal, the applicant appears to have “had settlement problems and fell into petty crime”, accumulating “a criminal record involving a number of periods in jail”.[3] On 4 July 2017 the applicant appeared in Burwood Local Court. He was convicted of an offence or offences relating to shoplifting, and was sentenced to 12 months imprisonment with a non-parole period of 4 months with conditions. On 23 November 2017 the District Court of New South Wales varied the order, resulting in the applicant being sentenced to 12 months imprisonment with a non-parole period of 6 months.
[3] CB128, [2]
On 27 September 2017 the Minister issued to the applicant a notice under s.501(3A) of the Act cancelling the BF visa. Subsection 501(3A) of the Act provides, among other things, that the Minister must cancel a visa held by a person if the Minister is satisfied the person does not pass the “character test” as defined in s.501(6) of the Act because the person, among other things, “has been sentenced to a term of imprisonment of 12 months or more” and, for that reason, the person has a “substantial criminal record” as defined by s.501(7)(c) of the Act.
On 26 October 2017 the applicant submitted a request under s.501CA of the Act for the revocation of the cancellation of the BF visa. A delegate of the Minister, on 10 September 2018, decided not to revoke the cancellation of the BF visa; and, on 30 November 2018, the Tribunal, differently constituted, affirmed the delegate’s decision.
Claims for protection
On 31 January 2019 the applicant applied for a Protection visa. In his application the applicant stated he left El Salvador because he had been a political prisoner for two and half years; and that if he returns to El Salvador he will be killed, terrorized, degraded, tortured, and killed by security because he had been a political prisoner. The delegate was not satisfied the applicant had a well-founded fear of significant harm because of the events the applicant experienced in El Salvador before he was received by Australia.
Additional claims before the delegate
Although the applicant’s only express claim was based on his treatment in El Salvador before he was received by Australia, the delegate considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act; and the delegate considered matters in addition to the applicant’s claims of fearing harm because he had been a political prisoner. The delegate considered, among other things, “the applicant’s ongoing health condition in terms of whether the absence or inadequacy of medical treatment in El Salvador would amount to cruel or inhuman treatment or punishment or degrading treatment or punishment”.[4]
[4] CB91
The delegate answered this against the applicant; and in doing so the delegate relied on the following understanding of the meaning of “cruel or inhuman treatment or punishment” within the meaning of s.36(2A)(d) of the Act, and of “degrading treatment or punishment” within the meaning of s.36(2A)(e) of the Act:[5]
To meet the definition of cruel or inhuman treatment or punishment, an act or omission must be intended to inflict either severe pain or some level of pain or suffering. To meet the definition of degrading treatment or punishment, an act or omission must be intended to cause extreme humiliation.
I am satisfied that there would not be intent by the medical professional or the El Salvador government to inflict pain or suffering or cause extreme humiliation even if the treatment the applicant receives is of a lesser standard than in Australia, such acts or omissions would not be intentionally inflicted by the medical professional or the El Salvadorian government.
[5] CB92
Before the Tribunal
Matters relevant to what counsel for the applicant submits revealed, or ought reasonably to have revealed, to the Tribunal that the applicant made a claim based on arbitrary deprivation of life were presented by the applicant during the hearing before the Tribunal in response to questions it asked. Counsel for the applicant relies on a number of passages from the transcript of the hearing before the Tribunal.[6] The first is the following (errors in original):[7]
The only family I’ve got is my – my mother is here. I’ve got no one else ….. So I go to El Salvador, and I get deported or taken back, whatever it is, and I just get kicked out of the airport, and where do I go? I go - $200 – go and sit at the one single room for one night, two nights, and then that’s it. That’s the end of me. I just walk down the street to look for a job or look for somewhere to stay. The truth – the original – the – my original thing to come here was because I was a political prisoner and a political refugee from El Salvador to Australia. I don’t know if I still – I’m still under the – under ….. criteria.
[6] A transcript of the hearing before the Tribunal is annexure A to the affidavit of H Simpkin filed on 20 January 2020
[7] T16.15
The second passage is:[8]
But which of your relatives? Do you have brothers and sisters there or anyone? --- No, nobody down there, and that’s the truth.
[8] T4.10
The third passage is:[9]
[Tribunal Member]: Maybe economically it’s gone from bad to worse, and we know there are gangs in El Salvador - - -
[Applicant] Yes.
[9] T12.10
The fourth passage is where the applicant said he was a teenager when he left El Salvador, a “hard-life teenager. I didn’t go to school”.[10]
[10] T24.39
The fifth passage is:[11]
There’s no, like – there’s charity agencies in El Salvador or there’s a Salvation Army in El Salvador. I don’t think there is anything like that there. The country is very poor because of all of the political stuff that has been happening over the years.
[11] T26.27
The final passage is (errors in original):[12]
I would love to share everything that might be relevant for you. It might be relevant for you compared to other things I would love to mention. I would love those things to go in my favour, obviously, yes? But, I mean, to hear if I’m allowed to say those things – whatever I’m asked, I will be answering and say, “Yes. Well, this I can do. This what I will be able to do”. And this what I’ve done and this what I’ve got. I’ve got nothing. Where I was staying at . . . before, my place been robbed a few times. The woman I was with, she let her people come into the place to rob me everything. I’ve got nothing there left, so I’m stressed out. I know that’s probably irrelevant to this.
[12] T28.5
Tribunal’s reasons
The Tribunal was not satisfied the applicant was a “refugee” within the meaning of s.5H of the Act, and, for that reason, it was not satisfied the applicant satisfied the criteria prescribed by s.36(2)(a) of the Act. The applicant does not challenge this part of the Tribunal’s reasons and, for that reason, it is not necessary for me to say anything further about it.
The Tribunal was also not satisfied the applicant met the complimentary criteria prescribed by s.36(2)(aa) of the Act; that is, the Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to El Salvador there is a real risk he will suffer significant harm.[13] The Tribunal’s reasoning may be summarised as follows:
a)The Tribunal first referred to the meaning of “real risk”, noting that it meant “real chance” as that notion is used when assessing whether a person has a well-founded fear of persecution.[14]
b)Second, the Tribunal referred to when a person is taken to suffer “significant harm”, noting that this is exhaustively defined in s.36(2A) of the Act. The Tribunal considered the definition consisted of “three definitions”,[15] these being where a person will be arbitrarily deprived of his or her life; or where the death penalty will be carried out on the person; or where the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
c)Third, the Tribunal noted that “[e]ssentially, all three of these definitions require that there be an intention to inflict harm by some act or omission” (emphasis in original).[16]
d)Fourth, the Tribunal identified the circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm, these being the circumstances identified in s.36(2B) of the Act relating to relocation.[17]
e)Fifth, the Tribunal found that the harm the applicant identified in his claims “appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment””.[18]
f)Sixth, the Tribunal considered that the applicant’s claims for complementary protection for the most part rely on the same facts and matters as his claim for refugee status and, because these claims failed because they did not meet the “real chance test” of harm, they could not succeed as complementary protection claims.[19]
g)Seventh, the Tribunal considered separately the applicant’s “health and family circumstances”, and “his claims about detriment potentially suffered in the event of removal to El Salvador”. The Tribunal found these “do not raise any intentional element and thus do not involve significant harm as exhaustively defined in the Act”.[20]
[13] CB133, [49], [50]
[14] CB132, [39]
[15] CB133, [42]
[16] CB133, [42]
[17] CB133, [43]
[18] CB133, [45]
[19] CB133, [46]
[20] CB133, [48]
Ground of application
The applicant filed an amended application containing two grounds. At the hearing before me counsel for the applicant said the applicant relies only on ground 1, which is as follows:
The Tribunal asked itself the wrong question at AAT [25], [40], [42], [45] and [48] in considering whether the applicant would suffer significant harm under s 36(2A)(a) Migration Act 1958 (the Act) as if ‘arbitrary deprivation of life’ required an intention to inflict harm.
In his counsel’s written submissions, the applicant assumes there was before the Tribunal a claim that there was a real risk that if he were returned to El Salvador the applicant would face the real risk of significant harm, including being arbitrarily deprived of life (ADL claim). The Minister, however, submits the applicant made no such claim, and the Tribunal could not reasonably have supposed the applicant made such claim.[21] The first question that arises, therefore, is whether the applicant made or could reasonably have been supposed by the Tribunal to have made the ADL claim.
[21] First Respondent’s Written Submissions, [22]
Did the applicant make the ADL claim?
At the hearing before me counsel for the applicant submitted that the ADL claim arose from the statements the applicant made to the Tribunal which I have reproduced above. Counsel further submitted the Tribunal itself recognised the applicant made the ADL claim. Counsel particularly relies on the following passage from the Tribunal’s reasons (Relevant Paragraph):[22]
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[22] CB133, [45]
The Minister, on the other hand, submits the Tribunal intended “arbitrary deprivation of life” in this passage to refer to the applicant’s claim that he would be detained and killed by the government, given his history as a political prisoner, which, the Minister submits, the Tribunal considered in the paragraph that follows the Relevant Paragraph.[23] I do not accept that submission.
[23] First Respondent’s Written Submissions, [22]
First, in the Relevant Paragraph, the Tribunal refers to the harm the Tribunal considered the applicant identified “in his claims”. On a reasonable reading of those words in the context in which they appear, by “in his claims” the Tribunal intended to refer to all of the claims the Tribunal understood the applicant made. These included the claims the Tribunal identifies in paragraph 48 of its reasons, namely, claims “about detriment potentially suffered in the event of removal to El Salvador”. When read with the Tribunal’s reference earlier in the same sentence to the applicant’s “health and family circumstances”, the claims the Tribunal understood the applicant made included a claim “about detriment potentially suffered in the event of removal to El Salvador” because of the applicant’s “health and family circumstances”. Had the Tribunal, as the Minister submits, intended to restrict the expression “arbitrary deprivation of life” to that part of the applicant’s claims that he would be detained and killed by the government, given the applicant’s history of a political prisoner, it is reasonable to suppose the Tribunal would have expressly stated so.
Second, although in the paragraph following the Relevant Paragraph the Tribunal considered the applicant’s claims based on his having been a political prisoner in El Salvador, that is not the only claim to which the Tribunal referred. The Tribunal said the applicant’s complementary protection claims “are for the most part the same as his refugee claims” (emphasis added).[24] In the second and third paragraphs following the Relevant Paragraph the Tribunal referred to claims it understood formed part of the applicant’s claims based on complimentary protection that did not form part of what the Tribunal understood was the applicant’s refugee claims. The claims the Tribunal understood formed part of the complementary protection but not the refugee claims were those based on El Salvador’s gang culture, and the applicant’s claims about detriment he would suffer based on his “health and family circumstances”. On a fair reading of its reasons, the Tribunal understood the harm the applicant identified in his claims which the Tribunal set out in the Relevant Paragraph to include, not only the harm he claimed he would face based on his history as a political prisoner, but also the harm he claimed he would face because of El Salvador’s gang culture, and the detriment he would suffer based on his “health and family circumstances”.
[24] CB133, [46]
Third, the Minister does not make any submission about which element or elements of the definition of “significant harm” under s.36(2A) of the Act the Tribunal set out in paragraph 40 of its reasons the Tribunal had in mind when it concluded in paragraph 48 of its reasons that the applicant’s claims in relation to health and family circumstances did not involve significant harm. The natural inference is that the Tribunal relied on “all three of these definitions” of “significant harm” it identified in paragraph 40 of its reasons. That inference is particularly strengthened by the Tribunal stating at paragraph 42 of its reasons that “all three of these definitions require that there be an intention to inflict harm by some act or omission” (emphasis in original), and by the Tribunal giving as the reason for not accepting the applicant’s claims based on the detriment the applicant claimed will occur to him because of his “health and family circumstances”, that those circumstances “do not raise any intentional element and thus do not involve significant harm as exhaustively defined in the Act”. That suggests that the Tribunal was of the view that the harm the applicant claimed he would suffer based on his health and family circumstances included the arbitrary deprivation of life.
The Minister also submits the applicant did not claim his health issues were life threatening, and he did not claim that any deprivation of life would be arbitrary.[25] The Minister submits that, in “these circumstances, the Tribunal did not consider that the applicant would be arbitrarily deprived of his life due to his health”.[26] The difficulty with these submissions is that, as I have found, the Tribunal did consider that the harm the applicant identified in his claims included a claim that he faced a real risk of an arbitrary deprivation of life; and the ultimate finding the Tribunal made on this aspect of the applicant’s claims is that those circumstances did not involve significant harm because they “do not raise any intentional element”.[27]
[25] First Respondent’s Written Submissions, [21], referring to SZDCD v Minister for Immigration and Border Protection [2019] FCA 326, at [3], and [48] (Gleeson J); and SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, at [90]
[26] First Respondent’s Written Submissions, [21]
[27] CB133, [48]
I am satisfied, therefore, that there was before the Tribunal, and the Tribunal understood there was before it, claims based on the applicant’s health and family circumstances that identified the harm arising from those circumstances to include the arbitrary deprivation of life. I am also satisfied the Tribunal considered or purported to consider those claims, including the claim to the extent it relied on the arbitrary deprivation of life, and did not accept those claims because the claims did “not raise any intentional element”.
Incorrect understanding of “arbitrary deprivation of life”?
There is no dispute between the parties that the notion of “arbitrary deprivation of life” does not require an actual subjective intention to arbitrarily deprive a person of his or her life; and the parties rely on the judgment of Gleeson J in SZDCD v Minister for Immigration and Border Protection, and in particular on the following passages from her Honour’s judgment:[28]
In my view, the FCCA judge erred in finding that an “actual subjective intent” to arbitrarily deprive the appellant of life is required by s 36(2A)(a). The requirement of a relevant intention in relation to other sub-paragraphs of s 36(2A) arises from the definitions in the Act of the words in those sub-paragraphs. There are no comparable definitions in relation to s 36(2A)(a).
[28] SZDCD v Minister for Immigration and Border Protection [2019] FCA 326, at [49]
In his lawyer’s written submissions, the Minister submits the Tribunal did not find that “arbitrary deprivation of life” required an intention to inflict harm; rather the Tribunal found there was no intention to inflict torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.[29] The Minister refers to paragraph 48 of the Tribunal’s reasons as support for this submission.
[29] First Respondent’s Written Submissions, [21]
The Tribunal does not say in paragraph 48 of its reasons there was no intention to inflict torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal said that the applicant’s claims based on his health and family circumstances “do not raise any intentional element”. This must be read with what the Tribunal said earlier in its reasons about the meaning of “significant harm”. As I have already noted, the Tribunal considered that “significant harm” consisted of “three definitions”,[30] and that “[e]ssentially all three of these definitions require that there be an intention to inflict harm by some act or omission” (emphasis in original).[31] In other words, contrary to the Minister’s submission, the Tribunal did find that the arbitrary deprivation of life, like the other two “definitions” comprising the definition of “significant harm” in s.36(2A) of the Act, requires an intention to inflict harm.
[30] CB133, [40], [42]
[31] CB133, [42]
The Minister also submits the Tribunal defined “significant harm” and recognised that an intention to inflict harm “was required for s.36(2A)(c)-(e) of the Act”.[32] That is not a correct description or characterisation of what the Tribunal said. The Tribunal said that “all three of the definitions” it was of the view comprised the definition of “significant harm” in s.36(2A) of the Act required an intention to inflict harm.
[32] First Respondent’s Written Submissions, [21]
I am satisfied the Tribunal proceeded on the basis that the notion of “arbitrary deprivation of life” referred to in s.36(2A)(a) of the Act required an intention to inflict harm and, in proceeding in this way, the Tribunal misunderstood the tasks it was required to undertake when reviewing the delegate’s decision. The Tribunal, therefore, made a jurisdictional error, and its decision is liable to be quashed.
Disposition and costs
In addition to making an order under s.477(2) of the Act, I will order that the Tribunal’s decision be quashed, and that the Tribunal review according to law the delegate’s decision. Ms Lucchese, who appeared for the Minister, and Mr Gormly, who appeared for the applicant, agreed that costs should follow the event and that those costs should be set in the amount of $7,467. I propose also to order, therefore, that the Minister pay the applicant’s costs set in the amount of $7,467.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 14 February 2020
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