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…
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- AGLC
- MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620
- Case
- [2016] FCCA 620
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Refugee Review Tribunal erred in finding that the third applicant, a Lebanese national, did not have a well-founded fear of persecution for a Convention reason, nor did he face a real risk of significant harm under Australia's complementary protection obligations. Specifically, the court considered whether the separation of family members due to differing nationalities and potential destinations constituted persecution or significant harm, and whether harm arising from the act of removal itself could trigger Australia's protection obligations.
The court upheld the Tribunal's reasoning that the separation of family members, while potentially distressing, did not amount to persecution for a Convention reason or "significant harm" under complementary protection provisions. The court noted that the second applicant had a right to return to Jordan, and the separation was a consequence of differing nationalities and the applicants' potential destinations. Furthermore, the court affirmed that harm arising from the act of removal itself, as distinct from harm in the receiving country, would not satisfy the criteria for complementary protection. This was based on the interpretation that protection obligations relate to harm in the receiving country, and that the act of removal cannot itself be the "significant harm" as it must be a consequence of removal. The court also considered that the "intention" requirement for degrading treatment was not met by the consequence of removal.
Ultimately, the court found no error in the Tribunal's conclusion that none of the applicants had a well-founded fear of persecution for any Convention reason, nor did they face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to their receiving country.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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)