GLD18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

GLD18 v Minister for Home Affairs [2020] FCAFC 2

Appeal from:

GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201

CAC19 v Minister for Home Affairs & Anor [2019] FCCA 3336

File numbers: VID 835 of 2019
VID 1276 of 2019
Judges: ALLSOP CJ, MORTIMER AND SNADEN JJ
Date of judgment: 5 February 2020
Catchwords:

MIGRATION – appeals of decisions to refuse appellants protection visas under complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) – consideration of scope of s 36(2)(aa) and meaning of “significant harm” in s 36(2A) – whether Tribunal in each case erred in applying decision in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (SZRSN) – whether decision in SZRSN correct – whether Tribunal in each case misapplied decision in SZRSN to appellants’ individual circumstances

MIGRATION – whether Tribunal in VID 835 of 2019 erred in concluding s 36(2A) “does not encompass harm arising from mental illness or harm” – whether Tribunal in VID 835 of 2019 erred in applying decisions in CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (CSV15) and CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 – whether decision in CSV15 correct

MIGRATION – whether Tribunal in VID 1276 of 2019 erred in failing to “deal with” certain country information relevant to appellant’s protection claims

Legislation:

Migration Act 1958 (Cth) ss 5, 36(2)(aa), 36(2A), 36(2B), 351, 417

Migration Amendment (Complementary Protection) Act 2011 (Cth)

Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth)

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Cases cited:

CAC19 v Minister for Home Affairs & Anor [2019] FCCA 3336

CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089

CRI026 v Republic of Nauru [2018] HCA 19; 355 ALR 216

CSV15 v Minister for Immigration and Border Protection [2018] FCA 699

GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201

Minister for Home Affairs v Omar [2019] FCAFC 188

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431

Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; 207 FCR 211

Minister for Immigration and Citizenship v SZQOT [2012] FCAFC 141; 206 FCR 145

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505

MZAEN v Minister for Immigration and Border Protection [2016] FCCA 620; 306 FLR 76

Plaintiff M150/2013 v Minister for Immigration and Border Protection [2014] HCA 25; 255 CLR 199

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235

SZRSN v Minister for Immigration and Anor [2013] FMCA 78

SZRSN v Minister for Immigration…

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Details
Case
[2020] FCAFC 2
Decision Date

CaseChat Overview and Summary

The appellants, GLD18 and another individual, challenged decisions by the Minister for Home Affairs to refuse their applications for protection visas under the complementary protection criterion in section 36(2)(aa) of the Migration Act 1958 (Cth). The Federal Court of Australia was tasked with determining whether the Administrative Appeals Tribunal (the Tribunal) erred in its application of previous decisions, particularly SZRSN v Minister for Immigration and Citizenship [2013] FCA 751, when assessing the appellants' eligibility for protection visas. The appellants argued that the Tribunal had misapplied the decision in SZRSN to their individual circumstances, and that the Tribunal had incorrectly interpreted the scope of section 36(2)(aa) and the meaning of "significant harm" in section 36(2A).

The court examined whether the Tribunal had correctly applied the principles established in SZRSN and other relevant cases. It found that the Tribunal had not erred in its interpretation of the legislation. The appellants' claims for protection were grounded in harm that was disconnected from the circumstances prevailing in the receiving country, the United Kingdom. The court emphasised that there were no putative actors or perpetrators of harm in the United Kingdom, nor were there alleged circumstances that could subject the appellants to significant harm once they were returned. The court also addressed the Federal Circuit Court decisions that had questioned the correctness of SZRSN, reaffirming that Federal Circuit Court judges are bound to follow decisions of this Court unless they can be lawfully distinguished.

The court dismissed the appeals, concluding that the Tribunal's decisions were consistent with the correct application of the law. The appellants' arguments did not establish any error on the part of the Tribunal that would warrant the granting of a protection visa.

The court ordered that the appeal be dismissed and that the appellant pay the first respondent's costs of the appeal, to be fixed by way of a lump sum. If the parties could not agree on the amount of costs, the matter would be referred to a Registrar for determination.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

3. On or before 4 pm on 19 February 2020, the parties file any agreed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4. In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP CJ
Finally, in relation to GLD18, the appellant’s grief and severe distress at his son’s death, and his wish to be able to visit his son’s grave, can be readily understood at a human level, including its religious aspects. However, the harm the appellant may genuinely experience nevertheless falls into the same category as the other kinds of harm articulated on behalf of both appellants in these appeals. It is disconnected from the circumstances prevailing in the receiving country – here, the United Kingdom. His arguments are not on this basis distinguishable from the principles set out in SZRSN, and in these reasons. There are no putative actors or perpetrators of harm in the United Kingdom (whether as agents of the State or otherwise), who it is claimed through their acts or omissions will “subject” the appellant to any of the categories of harm in s 36(2A). There are no alleged circumstances prevailing in the United Kingdom, which could be said to arise from intentional conduct on the part of any person or persons, to which the appellant will be exposed and from which there are substantial grounds to believe he cannot be protected by the United Kingdom once he is returned, always bearing in mind the exceptions in s 36(2B). The other Federal Circuit Court decisions Although the first two grounds of appeal raised by both appellants are to be dismissed, something should be said about the decisions of the Federal Circuit Court referring to SZRSN, including the two decisions which are the subject of these appeals. In GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201 at [7], the Federal Circuit Court described SZRSN as a decision not “completely free of doubt”, basing that statement on the Federal Circuit Court’s decision in MZAEN v Minister for Immigration and Border Protection [2016] FCCA 620; 306 FLR 76. Whether or not an individual judge of the Federal Circuit Court considers any “doubt” attaches to a decision of this Court, a Federal Circuit Court judge is bound to follow a decision of this Court unless it can be lawfully distinguished. As a member of a court whose orders are subject to the exercise of appellate jurisdiction by this Court, a Federal Circuit Court judge is obliged and required to follow a decision of this Court, whether the decision is made in this Court’s original or appellate jurisdiction. That was the approach correctly taken by the Federal Circuit Court judge in CAC19 at [28]:In my view, the decision in SZRSN is binding upon me and I am bound to follow it and will do so. It was not the approach taken in MZAEN. At [49]-[50], and having extracted the relevant passages from Mansfield J’s judgment in SZRSN, the Federal Circuit Court stated:It seems to me that the reasoning in SZRSN may be not entirely correct. Section 36(2)(aa) of the Act provides that a person is entitled to a protection visa where: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.That paragraph of the Act does not focus on the removal, as SZRSN does, but on the necessary and foreseeable consequences of the removal. Such consequences, in the present case, would include the possible consequence that the second and third applicants, being a mother and her young child, would suffer psychological harm, in their receiving countries, from being separated from each other.

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP CJ

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