MZAEN v MIBP
[2016] FCCA 620
•24 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAEN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 620 |
| Catchwords: MIGRATION – Refugee Review Tribunal – separation of family members – whether the Tribunal failed to correctly apply the law – whether SZRSN is distinguishable – whether the Tribunal considered all the integers of the claim – whether the second applicant was able to participate meaningfully in the hearing notwithstanding her advanced pregnancy. |
| Legislation: Migration Act 1958 ss.36(2)(aa), 477(1), 477(2) |
| Cases cited: SZRSN vMinister for Immigration and Citizenship [2013] FCA 751 |
| First Applicant: | MZAEN |
| Second Applicant: | MZAEO |
| Third Applicant: | MZAEP (MZAEO AS LITIGATION GUARDIAN) |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 991 of 2014 |
| Judgment of: | Judge Riley |
| Hearing date: | 22 December 2015 |
| Date of last submission: | 5 January 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2016 |
REPRESENTATION
| Counsel for the first applicant: | The first applicant appeared in person |
| Solicitors for the first applicant: | The first applicant was not represented |
| Counsel for the second applicant: | Matthew Albert |
| Solicitors for the second applicant: | Victoria Legal Aid |
| Counsel for the third applicant: | Matthew Albert |
| Solicitors for the third applicant: | Victoria Legal Aid |
| Counsel for the first respondent: | Liam Brown |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The time for the filing of the application to this court be extended to
27 May 2014.
The decision of the Refugee Review Tribunal handed down on
18 February 2014 in matter number 1306268 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The title of the proceeding be amended so that the second respondent is the Administrative Appeals Tribunal.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 991 of 2014
| MZAEN |
First Applicant
And
| MZAEO |
Second Applicant
And
| MZAEP (MZAEO as litigation guardian) |
Third Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an extension of time in which to file an application seeking review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicants protection visas.
The first applicant is a national of Lebanon. The second applicant is his now estranged wife. She is a national of Jordan. The third applicant is their first child, who was born on 18 October 2011, and who was two years old at the time of the Tribunal’s decision. The third applicant is a national of Lebanon.
The second child of the first and second applicants was born on
24 August 2013 and was six months old at the time of the Tribunal’s decision. The second child was not a party to the application to the Tribunal presently sought to be reviewed in this proceeding.
The second child filed a separate application to the Tribunal and a separate application to this court. In this court, the second child has been given the name CLT15. CLT15’s application to this court was briefly part of the present application but the matters have since been separated.
The third and fourth children of the first and second applicants were born on 8 October 2014 and 12 December 2015 respectively. They are not parties to this proceeding.
The first applicant came to Australia on a student visa in 2008. He married the second applicant in Lebanon on 19 December 2009, and returned to Australia, leaving his wife in Lebanon. The first applicant visited his wife from December 2010 until February 2011.
In July 2011, the second applicant arrived in Australia on a student visa, by virtue of being a family member of the first applicant. The second applicant lived with the first applicant until they separated in February 2014, allegedly due to his physical and verbal abuse. The first and second applicants reconciled for a week in February 2015, when their fourth child was conceived.
The second applicant was the primary carer for all of her children.
The application to this court was prepared by the first applicant but filed on behalf of all three applicants. Subsequently, the second and third applicants obtained representation by Victoria Legal Aid. However, the first applicant has remained unrepresented. The second and third applicants filed an amended application but the first applicant did not.
Extension of time application
The Tribunal’s decision was made on 18 February 2014. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the Tribunal’s decision. The application to this court was not filed until 27 May 2014. Consequently, the application was about two months late.
Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.
In considering whether to grant an extension of time, the court must consider:
a)the adequacy of any explanation for the delay;
b)any prejudice to the Minister arising from granting an extension of time; and
c)the merits of the substantive application.
The Minister conceded that he would suffer no prejudice as a result of an extension of time being granted, and made no submissions about the adequacy of the explanation for the delay. However, the Minister opposed an extension of time being granted on the basis that the application did not have sufficient prospects of success.
The first applicant explained his delay on the basis that he had poor English and was unable to pay for legal advice. The second and third applicants explained their delay on the basis that the second applicant had poor English and was in the process of separating from the first applicant at the time of the Tribunal’s decision.
I consider that those grounds adequately explain the relatively short delay in filing the application in this matter. Therefore, the question falls to be determined on the basis of the prospects of success of the substantive application.
Consent orders were made on 20 August 2014 by a registrar listing the hearing of the extension of time application “and, as necessary, the substantive application” on 13 May 2015 before Judge Turner. Due to his Honour’s retirement, the matter was relisted to me for hearing on 19 November 2015. Due to other matters running over time, and due to the parties wishing to join CLT15 to this matter, the matter was then adjourned for hearing on 22 December 2015.
I take it from the consent orders made by the registrar that the parties did not consider that a separate hearing was required on the substantive application, in the event that the court was satisfied that an extension of time should be granted. Certainly, the case was fully argued, as if it were the substantive application, with the extension of time application as a minor side issue.
As the following discussion shows, there is substantial merit in the application. In all the circumstances, I consider that it is appropriate to grant an extension of time in this case.
The first applicant’s protection claims
The first applicant’s claims were summarised by the Tribunal as follows:
·His father was kidnapped in Tripoli and taken into Syrian custody. He remained in Massieh prison from 2000 to 2003. In detention he was subjected to ‘horrendous human rights abuses’ and as a result of the ill treatment he passed away a few months after his release
·His family had a history of political activity and ‘staunch resentment’ or revulsion towards the Syrian regime and their Lebanese allies, particularly Hezbollah and the Arab Democratic Party
·The first named applicant’s brother [X] was ‘actively supporting’ the Syrian uprising by providing refuge to Syrian refugees and members of the Free Syrian Army (FSA) in Lebanon
·As a result of his opposition to the Syrian and Lebanese governments and his support for the FSA, Lebanese intelligence forces detained [X] in July 2012. He was accused of harbouring a FSA commander who was recently killed in the Syrian conflict. The applicant had pictures of the FSA commander in [X]’s house as well as a youtube video about his death. [X] was released on the condition that he would refrain from rendering any support to the FSA
·[X] was an active blogger on social network sites denouncing the Syrian government’s brutality and the Lebanese government’s complicity in the crackdown
·Since his release he has received numerous threats and attempts had been made on his life
·Over 50 Lebanese nationals had been ‘directly killed’ by the Syrian military or agents operating inside Lebanon. Cross border shelling and incursions by the Syrian military were a daily occurrence. Family clans allied with Hezbollah are engaging in kidnapping and ‘exerting their own form of justice’. Hezbollah and the Arab Democratic Party have been ‘committing crimes with impunity’. The Lebanese authorities are unwilling to intervene. Opponents of the Syrian regime can no longer express their political opinion or engage in supporting the Syrian refugees
·The applicant has expressed his political views online. He fears persecution in Lebanon because of his own activities and his family’s political profile.
The second applicant’s protection claims
The second applicant claimed that she was at risk of losing her Jordanian nationality because of her Palestinian ancestry.
The Tribunal’s reasons
The Tribunal considered that the first and third applicants were Lebanese nationals and assessed their claims against Lebanon. The Tribunal considered that the second respondent was a Jordanian national and assessed her claims against Jordan.
The Tribunal found that the second applicant is entitled to Lebanese nationality on the basis of having a child to a Lebanese husband. However, the Tribunal accepted that the second applicant did not have a right to enter and reside in Lebanon as she had not made an application for citizenship.
The Tribunal accepted that country information was consistent with the second applicant’s claims that some Jordanians had lost their nationality due to their Palestinian ancestry. However, the Tribunal noted that the second applicant had a Jordanian passport valid until June 2016 and noted various other aspects of her evidence. Based on the evidence before it, the Tribunal did not accept that there was a real chance that the second applicant might lose her Jordanian nationality in the reasonably foreseeable future. The Tribunal’s decision was dated 18 February 2014. All in all, the Tribunal did not accept that the second applicant had a well-founded fear of being deprived of her Jordanian nationality or of suffering serious or significant harm in Jordan.
The Tribunal made the following findings in relation to the first applicant’s claims:
98.The Tribunal accepts that the first named applicant’s father was abducted by the Syrian authorities in 1999 or 2000, imprisoned for about 3 years and tortured in detention. He came out a broken man and died soon after. …
99. The Tribunal gives the applicants the benefit of the doubt and accepts that the first named applicant’s family provided accommodation and assistance to a man who later turned out to be a military commander associated with the Free Syrian Army. The Tribunal also accepts that the Lebanese authorities questioned the applicant’s brother in relation to this man.
100. The Tribunal does not accept that [X] was harmed by the Lebanese authorities or that he has been subjected to threats since his questioning. Both applicants gave evidence that [X] married in mid-2013, that he continued to teach locally, that he continued to live in the family home, and that he was no longer giving shelter to Syrian refugees because he was starting a family and there was no room for refugees in the house.
101. The Tribunal does not accept the first named applicant’s explanation that his other brothers were not targeted (even though they lived in the same house as the Syrian man and [X]) because they are too young. The Tribunal notes that one of the applicant’s brothers was born in 1989 and another one in 1994. While they are young, they are adults, not children.
102.The Tribunal finds that the claims of threats and mistreatment are embellishments meant to enhance the applicants’ claims. In any event, the first named applicant conceded that he did not have a fear of harm in connection with this man or what had happened to his brother. Rather, he feared that because of his political views – which he would like to express in Lebanon – he would be at risk of harm in the future.
103.In relation to the long standing dispute between the applicant’s family and the [Y] family, the Tribunal considers that the murder of the applicant’s uncle – which the Tribunal accepts – some 35 years ago does not mean that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future. The applicant was not even born at the time and during the intervening period the applicant’s family did not retaliate against the [Ys].
104.The Tribunal rejects the first named applicant’s vague assertions that he might be forced to ‘retaliate’ against the [Y] family. On the evidence before it, the Tribunal is not satisfied that the [Y] family has any interest in harming the applicant for any reason.
105. Based on the available country information, the Tribunal does not accept that merely being a Sunni Muslim, a March 14 Alliance voter, someone who is opposed to Hezbollah and the current government of Syria, or someone supporting Syrian refugees is sufficient for the applicant to face a real chance of persecution at the hands of Hezbollah, Shia Muslims, Alawites, Syrian agents operating in Lebanon or anybody else.
106. On the available evidence, the Tribunal does not accept the applicant’s assertion that he has a profile in his home area; or that he is in the top 2% of the population in terms of his online profile. The applicant provided a few pages from his Facebook account. As already noted, a considerable part of the evidence were photographs of what appeared to be deceased people. In the tragic circumstances of this civil war where more than 100,000 people have been killed and millions have fled the country, it is hardly surprising that people living in neighbouring Lebanon would be posting comments in relation to the conflict. The Tribunal is not satisfied that the applicant received a death threat message from an Al Manaa journalist, which he later deleted, because he did not want his wife to see it. As already noted, the Tribunal does not accept that the applicant’s online profile is such that any journalist would notice the applicant and bother to send him death threats.
107. Further, the Tribunal is not aware of cases where Lebanese nationals have been targeted in Lebanon because of ‘posts’, ‘likes’, blogging or other online ‘activities’ alone. In Lebanon’s well-known climate of sectarian divisions it is common for people to engage in vigorous political ‘activism’ online or publish opinion and articles in the media without any consequences. The applicant himself provided some examples of some strong pro-Sunni and anti-Hezbollah opinion pieces (e.g. by Tony Badran) and there are no indications of any negative consequences as a result.
108. On the evidence before it, the Tribunal is not satisfied that the first named applicant has a well-founded fear of persecution for reasons of his religion, political opinion or any other Convention reason.
109.Having considered all of the first named applicant’s circumstances, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm by Hezbollah, Shia Muslims, Alawites, Syrian agents operating in Lebanon or anyone else in Lebanon.
In relation to the third applicant, the Tribunal said the following:
110.For the sake of completeness, the Tribunal observes that there were no claims made in relation to the third named applicant apart from the second named applicant’s assertion that the family may be denied medical care or that the family may live in poverty in Lebanon either because there is general poverty or because she is Palestinian. On the evidence before it, the Tribunal is not satisfied that the third named applicant, who is a Lebanese national by birth, has a well-founded fear of persecution for reasons of his mother’s Palestinian ancestry, her Jordanian nationality or any other Convention reason.
111. The Tribunal’s conclusions are premised on the second named applicant’s right to return to her country of nationality, Jordan, and to be separated from the rest of the family. The second named applicant may choose to apply for Lebanese nationality. This is not a matter which is currently before the Tribunal. The separation of family members, and in particular the separation of young children (the third named applicant and his brother who was born subsequently in Australia) does not constitute persecution for a Convention reasons. (sic) (emphasis added)
112. Having found that Australian does not have Refugees Convention protection obligations in respect of the third named applicant, the Tribunal has considered Australia’s complementary protection obligations pursuant to s.36(2)(aa). The Tribunal has also concluded that the separation of family members would not amount to ‘significant harm’. In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A). Australia’s complementary protection obligations are not triggered by the mere fact that different family members are nationals of different countries and they do not have, at least at present, the right to enter and reside in each other’s countries of nationality. (emphasis added)
113. First, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.
114. Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.
115. Thirdly, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
116. Lastly, the Court in SZRSN v MIAC had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.
117. Having considered the applicants’ claims individually and cumulatively, the Tribunal finds that none of them has a well-founded fear of persecution for any Convention reason. On the evidence before it, the Tribunal also finds that there are no substantial grounds to believe that any one of them faces a real risk of significant harm of any kind for any reason as a necessary and foreseeable consequence of being removed from Australia to their receiving country (Lebanon or Jordan). (citations omitted)
The Tribunal concluded that Australia did not owe protection obligations to any of the applicants.
Ground 1
The first ground of review in the amended application filed by the second and third applicants on 16 October 2015 and further amended on 9 December 2015 is:
The Refugee Review Tribunal erred by failing to consider the integer of separation from family members under s.36(2) of the Migration Act 1958 (Cth).
This ground was said to arise by reason of the facts that, if the second and third applicants were to be removed to their countries of nationality, the second applicant, the mother, would be removed to Jordan and the third applicant, her young child, would be removed to Lebanon and they would then remain separated from one another.
The second and third applicants argued that the Tribunal perfunctorily and wrongly concluded at [111] of its reasons for decision that:
The separation of family members, and in particular the separation of young children (the third named applicant and his brother who was born subsequently in Australia) does not constitute persecution for a Convention reasons.(sic)
The applicant said that statement was contrary to the decision of the Full Federal Court in Minister for Immigration and Citizenship v SZQOT (2012) 206 FCR 145; [2012] FCAFC 141. At [77] of that decision, Yates J said:
On the second issue raised by the appeal, the Minister contends that the Federal Magistrates Court erred in holding that the second respondent failed to consider whether the first respondent’s separation from his wife and child constituted persecution of a kind that would give rise to protection obligations under the Convention. In my view, although the second respondent referred to the humanitarian problem of a separated family, he did not consider this as an integer of the first respondent’s claim of persecution, even though this was placed before the second respondent for consideration. In [64] of his reasons the second respondent appears to have considered that such a claim was incapable of arising under the Convention. I am not persuaded that that is necessarily the case.
At [63] to [65] of SZQOT, Nicholas J said:
63.It is true that on the Reviewer’s finding, the first respondent had no well founded fear of harassment while his wife remained in Thailand and, consequently, no well founded fear of persecution. This appears to have been found on the basis that the first respondent would not be singled out for harassment in the absence of his wife. However, I think there is a difficulty in the Reviewer’s reasoning. It reflects an unduly narrow view of what might properly be regarded as persecution for the purposes of Art 1A(2) of the Convention.
64.Depending on the facts of a given case, it may be open to a decision maker to conclude that a husband had a well founded fear of persecution if, for example, widespread discrimination against couples on racial or religious grounds made it impossible for the husband to live with his wife without fear of them being harassed. The husband and the wife might then be forced to live apart. The husband’s fear of persecution does not necessarily cease once the husband and wife cease to live together unless, of course, the husband and wife do not wish to live together for some reason apart from fear of further harassment.
65.I think this is the claim that the primary judge understood had been overlooked by the Reviewer. I do not think this claim was considered by the Reviewer. Nor do I think it is a claim that is incapable of giving rise to protection obligations under the Convention.
The second and third applicants argued that the Tribunal fell into the same error in its consideration of the complementary protection criteria at [112] of its reasons for decision, where it said:
The Tribunal has also concluded that the separation of family members would not amount to ‘significant harm’. In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A). Australia’s complementary protection obligations are not triggered by the mere fact that different family members are nationals of different countries and they do not have, at least at present, the right to enter and reside in each other’s countries of nationality. (citations omitted)
The second and third applicants argued that SZRSN vMinister for Immigration and Citizenship [2013] FCA 751 was concerned solely with whether removal from Australia can amount to significant harm and did not address whether separation of a very young child from his or her mother can amount to serious harm. The second and third applicants also said there was international authority to the effect that the separation of a child from a parent because of entitlements to enter different countries can amount to serious harm for both the mother and the child.
The second and third applicants gave as an example Mubilanzila Mayeka v Belgium, European Court of Human Rights, Application No 13178/03 (12 October 2006) at [61-63]. Those paragraphs state as follows:
61. The Court reiterates, secondly, that the issue whether a parent qualifies as a “victim” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant’s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent’s enquiries. The essence of such a violation lies in the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities’ conduct (see, mutatis mutandis, Çakıcı v. Turkey [GC], no. 23657/94, § 98, ECHR 1999-IV, and Hamiyet Kaplan and Others v. Turkey, no. 36749/97, §67, 13 September 2005).
62. As regards the Belgian authorities’ conduct towards the first applicant, it is apparent from the material before the Court that the only action the Belgian authorities took was to inform her that her daughter had been detained and to provide her with a telephone number where she could be reached. The Court has no doubt that, as a mother, the first applicant suffered deep distress and anxiety as a result of her daughter’s detention. In view of the circumstances of the case, the Court concludes that the level of severity required for a violation of Article 3 of the Convention was attained in the present case.
63. There has therefore been a violation of Article 3 of the Convention.
Clearly, Mubilanzila Mayeka v Belgium did not deal with the precise issue that has arisen in this case. To similar effect, but also not precisely on point, was the second case referred to by the second and third applicants, the Juan Humberto Sanchez case, 7 June 2003, Inter-American Court of Human Rights (Ser. C) No 99 (2003). At [101], the court said:
101. This Court has stated, before, that the next of kin of the victims of human rights violations may, in turn, be victims. In the sub judice case, abridgment of the right to mental and moral integrity of the next of kin of Juan Humberto Sánchez comes as a direct consequence: of his illegal and arbitrary detention on July 10 and 11, 1992, which took place at the home of his parents, with the latter present as well as some of the younger siblings; of the uncertainty of not knowing the whereabouts of Juan Humberto Sánchez for over a week; of the signs of extreme violence on the corpse when it was found; of the illegal and arbitrary detention and the threats and harassment suffered by the stepfather at the hands of agents of the State; of the illnesses suffered by the mother and the stepfather; of lack of investigation and punishment of those responsible for these facts. All of this causes suffering, anguish, insecurity, frustration, and a feeling of powerlessness of the next of kin vis-à-vis the State authorities. Therefore, the next of kin can be considered to have been the victims of cruel, inhuman, and degrading treatment. (citations omitted)
The first respondent apparently argued that the Tribunal in the present case did not conclude that separation of family members in general could not amount to persecution. Rather, the first respondent argued that the Tribunal did not accept that the separation of the family members in the circumstances of this particular case amounted to persecution.
The first respondent supported that argument as follows:
21.1.First, the Tribunal in [111] dealt with the consequence of any decision by Australia to remove the applicants – the first and third applicants to Lebanon and the second applicant to Jordan. The final sentence in [111] (including its specific reference to the third applicant) must be a reference to the circumstances of the present case rather than a statement of general principle.
21.2Second, this conclusion is particularly apparent from the manner in which the Tribunal dealt with the claim in the context of complementary protection at [112]–[116]. In this context, the Tribunal made a finding that the separation of family members would be a consequence of the decision of Australia to remove the second and third applicants from Australia to different countries. It followed that any harm flowing from any decision of Australia’s would lack the necessary intention on the part of Lebanon or Jordan to constitute significant harm for the purpose of the Act. Equally, it must follow that any harm flowing from such a cause (the removal by Australia) would lack Convention related discrimination – a necessary element of persecution for the purpose of
s 36(2)(a).
I am not persuaded by the first respondent that the Tribunal considered that separation of family members in general could constitute persecution but that the particular circumstances of this case were such that persecution would not arise from separation of family members. The Tribunal said at [111] of its reasons for decision:
The separation of family members, and in particular the separation of young children (the third named applicant and his brother who was born subsequently in Australia) does not constitute persecution for … Convention reasons.
That sentence was clearly intended to mean that, even in cases of young children, the separation of family members is incapable of constituting persecution for a Convention reason.
Similarly, the Tribunal said at [112] of its reasons for decision:
The Tribunal has also concluded that the separation of family members would not amount to ‘significant harm’. In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A). Australia’s complementary protection obligations are not triggered by the mere fact that different family members are nationals of different countries and they do not have, at least at present, the right to enter and reside in each other’s countries of nationality. (citations omitted)
Those sentences were clearly intended to mean that the separation of family members arising from the various family members being nationals of different countries is incapable of amounting to significant harm as defined in the Act.
Therefore, the second and third applicants were correct to say that the Tribunal did not consider the questions of serious or significant harm arising from the separation of family members. The Tribunal did not consider those questions because it understood that it did not need to.
It is not a jurisdictional error to fail to consider an aspect of a claim that could not amount to serious or significant harm. The question for the court, therefore, is whether the Tribunal was correct in its understanding of the law relating to the separation of family members.
The first respondent argued that the Full Federal Court’s decision in SZQOT was distinguishable from the present case because, in the present case, the Tribunal considered the particular circumstances of the case, and concluded that the applicants did not face persecution or significant harm. As stated above, that is not an accurate reading of the Tribunal’s reasons for decision.
The first respondent did not put forward any other basis on which SZQOT could be distinguished. I am unable to discern any. Therefore, I proceed on the basis that SZQOT applies to this case, and that separation of family members is capable of constituting serious harm.
Consequently, as set out in the headnote of SZQOT, the Tribunal should have considered whether any psychological harm that might be suffered by the second and third applicants as a result of their separation would be a consequence of persecution for a Convention reason. It is not open to this court to conclude that any consideration of that question would necessarily be determined in the negative. It follows that the Tribunal has made a jurisdictional error, by failing to consider an integer of the claim, albeit one that was not raised expressly.
SZQOT only applies to serious harm arising under the Convention. It does not apply to significant as harm as defined in the Act. The question of whether the separation of the second and third applicants could amount to significant harm as defined in the Act begins with SZRSN.
In SZRSN at [47] to [49], Mansfield J said:
It should be noted here that only an “act or omission” will fall within either of the above definitions. Being separated from one’s children is, in the present context, not an act or omission but a consequence of an act. The relevant act is the act of removal from Australia. The separation from his children is said to be the cruel, inhuman or degrading treatment. (emphasis added)
The Federal Magistrate concluded that forced removal from one’s children in Australia by the Australian government could not be considered cruel, inhuman or degrading treatment so as to constitute “significant harm” for the purposes of s.36(2)(aa) of the Act for four main reasons:
1.The text of s 36(2)(aa) (which refers to Australia’s “protection obligations”), and the Explanatory Memorandum associated with the Bill that introduced s 36(2)(aa) (Migration Amendment (Complementary Protection) Bill 2011: Explanatory Memorandum, House of Representatives [65]), make it clear that the purpose of s 36(2)(aa) is to ensure Australia complies with its “non-refoulement obligation” that arises from Articles 2 and 7 of the 1966 International Covenant on Civil and Political Rights and associated jurisprudence of the United Nations Human Rights Committee. That obligation is an obligation not to remove anyone from Australia to a country where there are substantial grounds for believing that there is a real risk that the person will suffer “irreparable harm”. The obligation is therefore clearly an obligation to protect non-citizens from harm faced in the receiving country. Being removed from one’s children cannot be characterised as a harm faced in the receiving country.
2.Section 36(2B) sets out the circumstances where a non-citizen should be taken not to be at a real risk of significant harm for the purposes of s 36(2)(aa); for instance, where the non-citizen is reasonably able to relocate to another part of the receiving country where there would be no real risk of significant harm: s 36(2B)(a). These “exceptions” only make sense if the legislature intended that the “significant harm” occurs only in the receiving country.
3.To satisfy s 36(2)(aa), the real risk of significant harm must arise “as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country”. The fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
4.With respect to “degrading treatment”, forced separation from one’s family by removal from Australia cannot constitute “degrading treatment” as defined in s 5(1). “[D]egrading treatment” is an act or omission that, inter alia, is “intended to cause” extreme humiliation and, the Federal Magistrate said, separation from one’s family is a consequence of the act of removal from Australia and “... a consequence cannot be said to have an intention to cause a result (which it itself constitutes)”, so the act of removal itself cannot be said to be “perpetrated by the State with the intention to cause extreme humiliation that is unreasonable”: at [65].
In my view, that reasoning is not shown to be erroneous. An interpretation of the legislation that incorporates removal from one’s family by the Australian government as “significant harm” would be an extremely strained reading, and one not in accordance with the clear intention of Parliament in enacting the complementary protection criterion. That intention was to honour Australia’s non-refoulement obligation. In short, the appellant has failed to identify or demonstrate any error in the application of the term “significant harm” by the Federal Magistrate. Specifically in relation to the findings made by the Tribunal that harm feared by the appellant from gangs and other unidentified people in New Zealand does not meet the threshold of “significant harm” in s 36(2A) of the Act, and does not represent in any event fear of harm for a Convention reason, and that the removal of the appellant from Australia to New Zealand with the consequence of the separation from his children or its effects does not constitute “significant harm” as defined, no error is shown.
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.
Be that as it may. SZRSN was a decision on appeal from this court. As such, it is binding on this court, unless it is distinguishable. The second and third applicants argued that SZRSN was distinguishable from the present case because, in SZRSN, the person who was to be removed from Australia was the New Zealander father of children who would remain in Australia, whereas, in the present case, the mother and her young child would both be removed from Australia. Also, in SZRSN at [47], Mansfied J expressly relied on the context of that case, being that the removal of the New Zealander father from Australia, while his children would remain in Australia.
It seems to me that that is sufficient to distinguish SZRSN from the present case. In the present case, both the second and the third applicants, a mother and young child, would be removed from Australia and would possibly suffer significant harm in their respective receiving countries, being the possible psychological harm of being separated from one another.
By failing to consider this possibility, the Tribunal made the jurisdictional error of failing to consider an integer of the claim, albeit one that was not expressly raised.
Ground 2
The second ground of review in the amended application filed by the second and third applicants on 16 October 2015 and further amended on 9 December 2015 is:
The tribunal erred by failing to consider an integer of the Second Applicant’s claim, namely whether she was at real risk of significant harm in the form of mental suffering amounting to cruel or inhuman treatment by virtue of being separated from and / or denied access to her two young children, one of whom was only six months old.
For the reasons set out above, this ground must succeed.
Ground 3
The third ground of review in the amended application filed by the second and third applicants on 16 October 2015 and further amended on 9 December 2015 is:
The Tribunal erred by misapplying the decision in SZRSN v Minister [2013] FCA 751 to the evaluation of the child applicant’s claims.
For the reasons set out above, this ground must succeed.
Ground 4
The fourth ground of review in the amended application filed by the second and third applicants on 16 October 2015 and further amended on 9 December 2015 is:
The Tribunal erred by conducting a hearing in breach of its obligations under s 420 of the Migration Act, namely by conducting a hearing when one applicant, who is the mother of another applicant, was three days from giving birth.
The second applicant filed an affidavit in support of this ground. She was not cross examined on it and its contents were not otherwise challenged. The second applicant’s evidence was as follows:
2. I attended and gave evidence at a hearing before the Refugee Review Tribunal on 20 and 21 August 2013 in support of my Protection visa application.
3. I gave birth to my son on 24 August 2013.
4. During the hearing, I felt like I was going to have the baby. I felt the baby pushing. It was painful in the part of my body where the baby was. I also had a headache and felt physically, emotionally and mentally exhausted.
5. The pain and my worry about giving birth made me distracted. I could not concentrate on what was being discussed and what I was being asked.
6. During the hearing, I felt everything was too much. I was overwhelmed. I felt as though I had no choice but to have the hearing on the allocated days.
7. I was so stressed that I could not remember everything I wanted to say. I also did not feel like I expressed myself well and nor did I explain my personal history as well as I normally would.
8. My lawyer was not at the hearing. He was on the phone. I did not have the opportunity to speak to him about how I was feeling that day nor ask his help to delay the hearing until I had recovered from giving birth.
9. When I left the room after giving evidence to the Tribunal, I cried because I was tired and my headache and body were too painful.
The second applicant also provided a transcript of the proceedings before the Tribunal. On the first day of the hearing, early in the proceedings, the Tribunal said to the first applicant:
I can see you holding your stomach from time to time. If you need a break at any time, let me know.
Later, the interpreter said:
The hearing today or tomorrow if she have – if she giving birth day, what are we going to do with tomorrow?
The Tribunal replied:
… I’m sorry, I didn’t realise your pregnancy was so advanced.
…
All right. Do you feel fit to give evidence? Can you concentrate and answer questions?
The second applicant said:
Yes.
A little later, the Tribunal said:
Right. Well, what would be your preference, because if we have to adjourn the case we have to adjourn it for I’d say, at least a month so that you can recover from the birth.
The second applicant replied:
Yes. We’ll have our chance, and we’ll come tomorrow. I’ll come tomorrow.
The agent then interjected. The Tribunal member said that he would have appreciated being told the due dates for the baby’s birth. The agent said that he had not been aware of the stage of his client’s pregnancy, and would leave it up to his clients.
The hearing proceeded and was scheduled to resume the following day. The agent in the interim made no suggestion that the second applicant was not well enough to continue with the hearing.
At the commencement of the second day of the hearing, the following exchange occurred between the Tribunal and the second applicant:
Tribunal: Please sit down. Now Mrs X, how are you feeling today?
Mrs X: Fine, thank you.
…
Tribunal: … Was there anything that you wished to give evidence about in addition to what we talked about yesterday? …
There followed a few minutes of discussion between the Tribunal and the second applicant. The remainder of the second day involved discussion between the Tribunal and the first applicant. At the end, the Tribunal gave both the first and the second applicant, and their agent, an opportunity to say anything that they wished to add. Nothing was said regarding the second applicant’s advanced pregnancy.
The second applicant relied on the well known line of authorities, namely, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; (2003) 75 ALD 151; (2003) 198 ALR 293; [2003] FCAFC 126, Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584, Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359; [2003] FCA 140 and SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234. In particular, the second applicant relied upon SZQRU at [19], where the court said:
In some circumstances, the illness of an applicant at the time of a tribunal hearing may give rise to jurisdictional error by depriving him or her of a meaningful opportunity to give evidence and present arguments as s 425 of the Migration Act requires: … there may well be circumstances in which the opportunity is lost though the applicant is present in person, for example where the applicant is genuinely distracted by intractable pain or heavily sedated or confused so that he or she is not in a fit state to give evidence or present arguments. Indeed, SCAR was a case of that kind. But this is not.
The court in SZQRU went on in [19] to [20] to say:
The applicant said he was affected by the medication. There is, however, no evidence to support his statement. Indeed, what material there is points in the opposite direction. Further, unlike in SCAR, the tribunal in this case was aware of the applicant’s situation. The tribunal recorded in its reasons:
The applicant submitted ... police and medical reports relating to a car accident in May 2011 in which [he] was seriously injured. The applicant was clearly in discomfort during the Tribunal hearing and said that he had taken pain killing medication. However, he insisted that he was capable of giving evidence and that he wanted the hearing to proceed; he said that the medication did not make him drowsy. I am satisfied that the applicant was capable of giving evidence, and the manner in which he did so gave rise to no concerns on my part that his evidence was affected by his medical condition or the medication he had taken.
The applicant offered no reason, let alone evidence, to doubt the tribunal’s conclusion. The applicant had plenty of opportunity to adduce evidence about his capacity to participate in the hearing but he did not do so, despite providing the tribunal with some additional evidence after the hearing. There is nothing to indicate that his capacity to make decisions in his own interests was impaired by either his medical condition or the medication. …
The first respondent argued that an advanced state of pregnancy, of itself, does not mean that a person could not participate effectively in a Tribunal hearing. The first respondent argued that there was no evidence, and in particular, no medical evidence, that the second applicant could not participate effectively in the hearing.
It is true that there was no medical evidence. However, there was evidence in the form of the second applicant’s affidavit. That evidence was not challenged. Its gist is that the second applicant was too overwhelmed and exhausted to say all that she wished to say, or to express herself well. That is not consistent with what she told the Tribunal during the hearing.
In any event, the applicant has not adduced any evidence that, if she had felt better during the hearing, she would have said anything differently or additionally that could have altered the outcome.
It is also clear that the second applicant was represented during the Tribunal process by a solicitor and migration agent. The solicitor attended the Tribunal hearing by telephone, and became aware during the first day of the Tribunal hearing of how advanced the second applicant’s pregnancy was. He could have spoken to the applicant between the first and second days of the Tribunal hearing to obtain instructions. If he had thought it would have been advantageous, he could have asked the tribunal for further time, after the second applicant gave birth, to put in further evidence or submissions. He did not do so.
In all the circumstances of this case, I am not persuaded that the second applicant was not afforded a meaningful opportunity to put her case. This ground is not made out.
Ground 5
The first ground of review in the application filed on 27 May 2014 and relied upon by the first applicant is:
The decision of the tribunal is affected by any error law.
For the reasons set out above in relation to ground 1, this ground has merit.
Ground 6
The second ground of review in the application filed on 27 May 2014 and relied upon by the first applicant is:
failed to take into account relevant considerations.
For the reasons set out above in relation to ground 1, this ground has merit.
Conclusion
Although the matter required an extension of time, it was listed for final hearing at the same time as the hearing of the extension of time application, in the event that an extension of time was granted.
The extension of time has been granted. The matter was fully argued at the hearing. For the reasons explained above, the applicants’ grounds have merit. The matter will be remitted for further hearing according to law. As the matter was procedurally unusual, I will hear the parties on the question of costs.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 24 March 2016
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