GLD18 v Minister for Home Affairs & Anor

[2019] FCCA 2201

FEDERAL CIRCUIT COURT OF AUSTRALIA

GLD18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2201

Catchwords:
MIGRATION – Application for judicial review – student visa-dependent separated spouse seeking complementary protection on the basis of suffering significant harm if separated from daughter and site of son’s grave in Australia – harm arising from the act of removal itself – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa)

Cases cited:
SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620
Minister for Immigration and Citizenship v SZQOT [2012] FCAFC 141.
AUB16 & Ors v Minister for Immigration & Anor [2017] FCCA 2634
COH17 v Minister for Immigration & Anor [2018] FCCA 1656.

Applicant: GLD18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 3760 of 2018

Judgment of: Judge Riethmuller

Hearing date: 2 August 2019

Date of Last Submission: 2 August 2019

Delivered at: Melbourne

Delivered on: 2 August 2019

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

AND THE COURT NOTES THAT:

A.The Applicant is currently held in detention.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3760 of 2018

GLD18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore, as corrected)

1. In this matter, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.  The applicant is a citizen of the United Kingdom. The applicant came to Australia as a dependent of his then wife on her student visa. The applicant and his spouse have separated and he seeks to have contact with his daughter who remains living with her mother.

2. The applicant’s migration history is set out in the decision. The substance of the applicant’s claims are set out at paragraph 18 of the decision where the Tribunal says:

   18. The applicant has put forward a claim for complementary protection on the basis that he will suffer significant harm if he is separated from his daughter and the site of his son’s grave in Australia. In particular, the applicant expressed concern for his mental health as a result of losing access to his daughter. Owing to his deep religious faith, he would suffer harm as a result of being unable to visit the site of his son’s grave, which is important as a Catholic tradition. He further outlined that he has no financial support in Scotland and would be homeless upon return.

3. The applicant’s significant claim relates to the harm that he says he will suffer separating from his child and being unable to attend at his son’s grave in Australia if he is removed. The applicant says that that comes within the broad ambit of section 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).

4. The Tribunal considered itself bound by a decision of the Federal Court in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751. The Tribunal found:

   26. In SZRSN v MIAC, the applicant claimed that significant harm would arise from separating him from his Australian children. In that matter, the Federal Court found that harm arising from the act of removal itself will not meet the definitions of significant harm in s36(2A).

   27. The applicant claims harm arising from separation from his daughter and the site of his son’s grave and further claims that he would have difficulty finding somewhere to live. I note that while he may experience financial hardship, access to accommodation would not be withheld from the applicant. In fact, the applicant highlighted several organisations that may be in a position to assist with securing accommodation for people in his situation. I find that the claimed harm would arise from the act of removal itself, which is not a harm faced as a result of an act within the receiving country. I therefore find that this does not fall within the definition of s.36(2A).

   28. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   29. There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfied s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s36(2).

   30. Given that there are no protection obligations arising in this matter, I have not considered the applicant’s right to enter and reside in any country apart from Australia under s36(3).

Grounds of the Application

1. The applicant’s grounds for judicial review are as follows:

   1. The Tribunal (AAT) fell into jurisdictional error in that it failed to interpret or apply the law correctly.

   2. The AAT failed to consider relevant considerations.

   3. The AAT fell into jurisdictional error in that it was unreasonable. 

2. The applicant was not able to identify particulars to these specific grounds, but pleads his case on the basis that he seeks to challenge the correctness of the decision in SZRSN. The applicant accepts that this Court is bound by the decision in SZRSN and that this challenge must take place in the Full Court.

3. The decision in SZRSN has been applied on a number of occasions.  It is not a decision that is completely free of doubt, in that Judge Riley in MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620 said:

   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.

4. Her Honour in MZAEN was relying upon reasoning from the Full Court in Minister for Immigration and Citizenship v SZQOT [2012] FCAFC 141.

5. On at least one previous occasion, I have been confronted with the difficulty of determining whether I ought to apply the reasoning in SZRSN or MZAEN (the former being binding upon me as an appeal decision from a higher Court and the latter having significant persuasive precedential value as a decision of another judge of this Court). In AUB16 & Ors v Minister for Immigration & Anor [2017] FCCA 2634, the facts much more closely resembled those in MZAEN than the facts in SZRSN. 

6. As a result, I felt obliged on that occasion to follow the decision in MZAEN.  Neither the decision in MZAEN nor the decision in AUB16 appear to have been the subject of appeals. 

7. More recently, Judge J. Smith of this Court was critical of the reasoning in MZAEN in COH17 v Minister for Immigration & Anor [2018] FCCA 1656.

Conclusion

1. Ultimately, it seems that there is room for argument as to the correct interpretation of the way in which the provisions of section 36(2)(aa) properly apply in cases with unusual features such as those in this case. The facts of this case, however, seems to be so close to the circumstances in SZRSN that it is clearly appropriate that I apply that decision in this case.

2. I therefore formally dismiss the current application on the basis that the applicant has not established a ground of judicial review as a result of with the reasoning of the Federal Court in SZRSN.

3. To the extent that the grounds appear to raise other issues there was no argument addressed to those issues and nothing that would support those grounds. I therefore dismiss those grounds.

   [Further argument ensued].

Costs

1. In this matter, the applicant has been unsuccessful. Costs ordinarily follow the event. The amount sought by the Minister is, in my view, reasonable, it being less than the scale fee. I therefore order costs- in the sum of $5,000.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date: 14 August 2019

Correction (11/9/2019)

On the coversheet and in Paragraph [7]  the case citation MZAEN & Ors v Minister for Immigration & Anor [2016] FCA 620 was corrected to [2016] FCCA 620