MZAIU v MIBP
[2015] FCCA 1898
•29 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAIU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1898 |
| Catchwords: MIGRATION – Application for judicial review of refusal of protection visa – consideration of whether the Tribunal had an obligation to consider the applicant’s particular circumstances in its application of section 36(3) of the Migration Act 1958 (Cth) – claim that the Tribunal failed to consider the applicant’s claims cumulatively – application remitted to Administrative Appeals Tribunal. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Baker v Minister for Immigration and Citizenship [2012] FCAFC 144 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 MZZKA v Minister for Immigration and Border Protection [2014] FCA 633 MZZUT v Minister for Immigration and Border Protection & Anor [2014] FCCA 2054 NBLC; NBLB v Minister for Immigration and Multicultural Affairs & Anor [2005] FCAFC 272 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingaham (2000) 168 ALR 407 SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 SZRTC v Minister for Immigration & Citizenship [2014] FCAFC 43 SZSMG v Minister for Immigration & Anor [2014] FCCA 776 |
| Applicant: | MZAIU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1500 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 5 May 2015 |
| Date of Last Submission: | 5 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 29 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Knowles |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Mosley |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
That the decision of the Refugee Review Tribunal made 30 June 2014 be quashed.
A writ of mandamus issue is directed to the Tribunal requiring it to determine the applicant’s application according to law and the matter be remitted to the Administrative Appeals Tribunal for rehearing.
The first respondent pay the applicant’s costs fixed in the sum of 6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1500 of 2014
| MZAIU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made 30 June 2014 affirming a decision of the Minister’s Delegate refusing to grant the applicant a Protection (Class XA) visa (“the visa”).
The amended application filed 24 April 2015 raises two matters of complaint summarised as:
i. That in its application of s.36(3) of the Migration Act 1958 (Cth) (“the Act”), the Tribunal failed to consider the applicant’s circumstances in determining that he could relocate to Nepal from India. That is, the applicant says the Tribunal misunderstood the relevant legal test that it was obliged to apply when assessing the applicant’s right to enter and reside in Nepal;
ii. That the Tribunal failed to consider the applicant’s various claims cumulatively and that it was obliged to do so.
Background
The applicant is from India. He was born and always lived in Tamil Nadu in Southern India. The applicant claims to be homosexual. He says that he suffers from a psychological illness, namely post-traumatic stress disorder.
The applicant claimed to have been persecuted in India because of his sexual orientation.
The applicant came to Australia on a student visa in 2009. He made an application for a Protection visa on 12 November 2012. The Minister’s Delegate refused the application on 8 March 2013. On 28 March 2013 the applicant applied for a review hearing before the Tribunal. That hearing took place over three separate days on 4 and 24 April and 12 June 2014.
After the second day of the hearing the applicant was invited to make comment or submissions as to whether or not he had taken all possible steps to avail himself of a right to enter and reside in Nepal. The applicant claimed that he would face a real chance of serious or significant harm due to his homosexuality whether he returned to India or Nepal. In respect of Nepal, the applicant lodged written submissions made on his behalf on 5 June 2014 and set out at CB 169 which include the following:
We submit, in the alternative that if (the applicant) is found to have a s36(3) right to enter and reside in Nepal that he faces a real chance of serious or significant harm in that country on the basis of one or more of the following:
(a) his Tamil race; and/or
(b) his membership of one or more of the following particular social groups;
a. Gay men; and/or
b. Gay men of Tamil/Indian origin;
c. Gay men of Tamil/Indian origin without any family support or social networks; and/or
d. Gay men of Tamil/Indian origin without any family support or social networks suffering from post-traumatic stress disorder.
Relevantly, the Tribunal accepted the particulars of the applicant’s claim being that:
·He is an Indian citizen;
·He is of Tamil ethnicity;
·He is homosexual;
·He suffers from the psychological illness;
·He does not speak Nepali or other languages in common usage in Nepal;
·He has no family or other support in Nepal.
The Tribunal then found that the applicant had a right to enter and reside in Nepal and that he had not taken all possible steps to avail himself of that right within the meaning of s.36(3) of the Act [103].
The Tribunal considered whether the applicant would suffer persecution or significant harm in Nepal and concluded at [138]:
For all of the above reasons I find the applicant, not taking any particular steps to modify or conceal his sexual orientation, or any other Convention-protection attribute, does not face a real chance of serious harm in Nepal and that his fear of persecution in Nepal is not well-founded. I therefore find that s.36(4)(a) is not enlivened to exclude s.36(3) from applying to the applicant in relation to Nepal.
The Tribunal also concluded at [144] that any fear the applicant had of being removed from or deported back to India from Nepal was not well-founded. At [145-146] the Tribunal concluded:
[145] For the reasons above, find that s.36(3) applies to the applicant in respect of Nepal and Australia is taken not to have protection obligations in respect of the applicant. For this reason, he doesn’t not (sic) met the criterion contained in either s.36(2)(a) or s.36(2)(aa).
[146] For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
The Application to this Court.
Ground 1.
This ground of complaint focuses on s.36 of the Act and in particular sub-section (3). The section provides:
(1A) An applicant for a protection visa must satisfy:
(a) the criterion in subsection (1B); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because 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; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Ineligibility for grant of a protection visa
(2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non-citizen committed a serious non-political crime before entering Australia; or
(iii) the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non-citizen is a danger to Australia's security; or
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
Specifically the applicant addresses the phrase in subsection (3) of “…a right to enter and reside in…”. The applicant argues that it is incumbent on the Tribunal to consider an applicant’s particular circumstances in order to assess, in a realistic and practical sense, that the applicant has a right to enter and reside in a country.
The applicant argues this point also in respect of another phrase in s.36(3) being “…taken all possible steps to avail himself of…”. Counsel for the applicant again say that a determination of fact should consider the circumstances specific to an applicant in concluding what steps that applicant could or should have taken. For example, the Tribunal, in respect of this applicant, should have taken into account his characteristics and the circumstances that would confront him in Nepal in considering “all possible steps” and “reside”.
My colleague Judge O’Dwyer considered the construction of s.36(3) recently in SZSMG v Minister for Immigration & Anor.[1] It was argued that the Tribunal should have considered an applicant’s ability to lawfully support himself if residing in the United Kingdom. His Honour noted at [15]:
Again, the alleged failure of the Tribunal to consider the Applicant’s capacity to subsist in the UK, is not an error on the part of the Tribunal. Once s.36(3) is engaged, as it is in this case, then there is no need to consider, as the law presently stands whether the Applicant would be able to subsist in the UK. There is nothing in the Act that requires a decision maker to look beyond s.36(3) if it is found to be engaged, save for the exceptions provided for in s.36(4)-(5A). These exceptions do not apply in this case.
[1] [2014] FCCA 776.
The strict and limited interpretation of s.36(3) proceeds from the Full Court in SZMWQ v Minister for Immigration and Citizenship[2] where Rares J at [32-36] says:
[2] [2010] FCAFC 97
[32] Essentially, s 36(3) is directed to excluding Australia’s obligations to grant protection under the Convention to a person who has a right to enter and reside in another country, but has not taken all possible steps to avail himself or herself of that right. It is not sufficient that, by exercising such a right outside Australia, the person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle, that do not arise for a Convention reason (i.e. a well-founded fear of persecution). Unfortunately, experience has shown that there are many countries in the world without social welfare to which persons flee in an attempt to avoid persecution. If there is a country that will offer a refugee from Convention related persecution the right to enter and reside, where he or she will not suffer the persecution claimed, the mere fact that the country has no social security system at all could not enliven a protection obligation to that person in Australia were he or she to arrive here. It was common ground that ss 36(4) and (5) did not operate to exclude s 36(3) in relation to the appellant if he were to go to Spain.
[33] The Full Court has held that the words “all steps"” should be given their literal and grammatical meaning: NBLC v Minister for Immigration and Multicultural Indigenous Affairs [2005] FCAFC 272; (2005) 149 FCR 151 at 152 [2] per Wilcox J, [12] per Bennett J and [63]-[64] per Graham J. They found that the expression should not be construed as meaning the lesser standards of “all steps reasonably practical in the circumstances”, “all reasonably available steps” or “all reasonably possible steps”. Subsequently, Callinan, Heydon and Crennan JJ had emphasised in NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54 that the task of construction of a provision such as s 36(3) involved the Court ascertaining what the Australian law was having regard to what, and how much of an international instrument, Australian law required be implemented…
[34] The right to enter and reside in the other country described in s 36(3) is not the same as the right that Australia would grant to the non-citizen were he or she to be given a protection visa under s 36(2). Section 36(3) describes a more qualified right. First, it is merely a right to enter and reside in the other country; it is not a right equivalent to recognition of the non-citizen as entitled to all the attributes of citizenship or even refugee status in the other country…
…
[36] Thirdly, s 36(3) is satisfied so long as the person’s right to enter and reside in another country exists, however it arose or is expressed. This suggests that apart from ss 36(4) and (5), the content or incidents of the right to enter and reside described in s 36(3) is not to be the concern of the Minister or decision-maker. Thus, any such right will not satisfy s 36(3), if the non-citizen would have a well-founded fear that he or she would be persecuted for a Convention reason in the country offering the right to enter and reside (s 36(4)) or he or she could be refouled from there to another country where that persecution could occur (s 36(5))
Notably, Flick J in SZMWQ (supra) took the same view as Rares J at [82]:
Although an error in the construction of s 36(3) may thus be accepted as a jurisdictional error, it is considered that the first Ground of Appeal is to be rejected for either of two reasons, namely:
• the Tribunal whose decision was under review did not make any finding either that the right to reside would only be “negated” if an applicant for refugee status was exposed to “extreme hardship” or that the present Appellant would face “extreme hardship”; and/or
• s 36(3), properly construed, simply addresses the right to “enter and reside” in a third country and does not incorporate any requirement to necessarily examine such matters as a person’s ability to obtain employment or to access welfare benefits upon taking up residence.
The second limb of the applicant’s argument was considered by Graham J in NBLC; NBLB v Minister for Immigration and Multicultural Affairs & Anor.[3] At [62-65] his Honour says:
[62] In dealing with this issue the primary judge said, in my view correctly, “Section 36(3) directs attention at taking steps to avail oneself of a right to enter and reside in a country. [It] is not directed to the consequences of entering and residing in a country".
[63] The relevant right in respect of which a non-citizen must take all possible steps to avail himself is the bare right, if it exists, to enter and reside in a country, not a right to enter and reside comfortably in a country.
[64] I am disinclined to the view that “all possible steps” should be construed as “all steps reasonably practicable in the circumstances”, “all reasonably available steps” or “all reasonably possible steps”. Indeed, I would conclude, given the object underlying the Act, that “all possible steps” means what it says and should not, in the context, be read down in any way.
[65] Section 15AA(1) of the Acts Interpretation Act 1901 (Cth) provides:-
“15AA(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
In s 4 of the Act which records the object of the Act it is indicated that the Parliament intended that it should be the only source of non-citizens’ rights to enter or remain in Australia. Given the progressive tightening of the terms of the Act and the extrinsic material referred to above it is evident that a strict approach should be adopted to the construction of s 36(3).
[3] [2005] FCAFC 272
These above authorities are consistent in a strict and narrow construction of s.36(3). It follows, in my view, that it would not be open to the Tribunal to enter into any evaluative process based on the applicant’s particular circumstances in respect of the phrases “…enter and reside in…” and “…taken all possible steps…”. Rather the statute itself at ss.36(4), (5) and (5A) provides the circumstances in which s.36(3) will not apply. The applicant’s particular circumstances can be and were considered by the Tribunal in respect of each of these exceptions.[4]
[4] See Tribunal’s reasons [104-115] and [131-138].
Counsel for the applicant, however, whilst acknowledging the above authorities say that each individual applicant should be assessed in respect of his or her own circumstances as to whether that person can “reside” or “has taken all possible steps”. Counsel gleans some support from Flick J in his Honour’s above mentioned reasons in SZMWQ (supra) at [110] where his Honour observes:
… a question as to whether a person who has a “right to enter and reside” in another country may so confront economic or physical circumstances that he may not truly be said to have such a “right”.
Later in SZRTC v Minister for Immigration & Citizenship[5] Flick J continued this theme at [46-48] saying:
[46] At some point in time this Court may have to construe in greater detail what is meant by the term “reside”. But the precise perimeters of that term are in no need of present resolution…
[47] It remains a question of fact in each individual case to determine whether the ability of a claimant to enter another country constitutes a “right” and a question of fact as to whether the conditions in which a claimant lives in that country constitutes “residence” and whether the period of time during which a claimant can remain constitutes “temporary residence”. A period of time during which a claimant may remain, for example, may be so transitory as to not constitute “temporary” residence.
[48] It has previously been left open for future consideration “whether a person who has a ‘right to enter and reside’ in another country may so confront economic or physical circumstances that he may not truly be said to have such a ‘right’...”A right to cross a border into a third country but to thereafter remain in economic or physical conditions so devoid of any acceptable standard may be found to not constitute a right of the kind being described.
[5] [2014] FCAFC 43
These comments of his Honour are clearly prospectively sympathetic of particular circumstances that may confront individuals required to relocate and enter and reside in another country. They are, however obiter comment and I am satisfied that there is no current requirement at law for a Tribunal to examine or evaluate any particulars or circumstances of an applicant with respect to s.36(3) of the Act other than those provided by statute at ss.36(4), (5) and (5A). No issue is taken here by the applicant with the process taken by the Tribunal in accordance with settled authority with respect to s.36(3). Effectively, the applicant is inviting this Court to find that the Tribunal here should have moved towards a personal and particular evaluation, outside of the statutory exceptions. I am not persuaded, given the proper reading of the statute, that it was open to the Tribunal to do so. It follows that this ground of complaint must fail.
Ground 2.
The applicant here asserts that the Tribunal failed to consider cumulatively how the various particulars of his claim might affect the chance of the applicant suffering harm in Nepal or the seriousness and significance of such harm.
The applicant raised various matters which may affect the chances of him suffering harm in Nepal including:
·His nationality;
·His ethnicity;
·The colour of his skin;
·His homosexuality;
·His inability to speak to Nepalese or other languages spoken in Nepal;
·His psychological illness;
·His lack of family and other support.
The applicant argues firstly, that the Tribunal failed to consider the cumulative effect of each of the above with any other factor and, secondly, the cumulative effect of all of these factors together.
It is trite to observe that the failure of the Tribunal to consider an applicant’s claim constitutes failure to consider a relevant consideration and can cause the Tribunal’s decision to be infected by jurisdictional error.[6]
[6] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
At [19-23] of his Honour’s reasons in MZZKA v Minister for Immigration and Border Protection[7] Bromberg J said
[7] [2014] FCA 633
[19] The formation of the state of satisfaction required for the purposes of ss 36(2)(a) and 36(2)(aa) of the Migration Act involves two steps, which were explained in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (at [34]) (Kenny, Griffiths and Mortimer JJ) as:
...first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
[20] The Tribunal may fall into error if it fails to correctly understand the basis, or the bases, upon which an applicant claims a well founded fear of persecution. The jurisdictional error, in such a case, is the failure of the Tribunal to perform the statutory task imposed on it by the relevant provisions of the Act: MZYTS at [31].
[21] The Tribunal must address, cumulatively, all of the essential elements of the claim or claims raised by the material or evidence: HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [7] (Merkel J).
[22] The Tribunal’s consideration of such material must be “real or active”: MZYTS at [39]. As Kirby J said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (at 595):
...the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief.
[23] As the Full Court emphasised in MZYTS, the task for a court on review is not to assess the quality of the Tribunal’s reasons, but rather to consider what the Tribunal’s reasons, as they are, reveal about the Tribunal’s performance of its statutory task…
The applicant’s claims are put using the alternative conjunctives “and/or” (CB 169) enlisting the factors which he says impact on him facing a real chance of serious or significant harm in Nepal (as set out above).
My reading of the Tribunal’s reasons does not find the applicant’s claims repeated with the alternative conjunctions “and/or”. Rather, the reasons have a tendency to use only the conjunctive “or”. At [131] the Tribunal makes findings thus:
I do however find that because it may be apparent that he is Indian, and not Nepali, or that he is homosexual and not heterosexual, or that his skin is of a darker or different tone to an ‘average’ Nepali, or he does not speak Nepali, that he may experience discrimination for (sic) non-state actors. As I put to him I find that country information does not suggest that that discrimination will be so widespread that he will not find work, accommodation, and access to basic healthcare, or that he will suffer serious or significant harm in the process or as a result of seeking these necessities even if he is refused them at times. (My emphasis).
However, significantly, in the following paragraph at [132] in finding that the applicant’s claims do not constitute serous or significant harm the Tribunal again uses the conjunctive “or” as follows:
I accept the submission that physical harm is not the only form of harm that can place a person in need of international protection and that an accumulation of instances of harm can amount to harm requiring international protection. The evidence which was put to the applicant and that I accept is that much of the discrimination in Nepal emanates from gay men’s own families. That is, only some small amount of discrimination emanates from outside the family. The applicant not having family in Nepal, will not suffer much of the extant discrimination in the country. Country information does not suggest that Indian citizens (be they Tamil, homosexual, Nepali-speaking, or dark-skinned) or homosexuals in Nepal generally, are refused employment or services or access to accommodation and property to such a regular extent, or are harassed, verbally or physically, to the point, that the accumulated experience of having to endure these hardships, or individual instances of such hardship, are grave enough to mean that their ability to subsist is itself threatened, or to otherwise constitute serious or significant harm, and on the evidence, I find they do not.
The Tribunal’s reasons at [136] deal with the applicant’s claim in respect of his psychological condition. It does so, however, separately and distinctly and not considered together or cumulative with any other factors such as his homosexuality or his lack of family support or his lack of proficiency in Nepalese.
Middleton J in MZZUT v Minister for Immigration and Border Protection & Anor[8] at [14-15] says:
[14]There is no doubt that the Tribunal must correctly construe and consider each claim (including each element or integer of each claim and the cumulative effect of each claim) made by an applicant…
[15] The Tribunal will fall into jurisdictional error if it fails to consider the component integers of each claim made by an applicant... This includes claims that are expressly raised by an applicant or are apparent on the material before the Tribunal.
[8] [2014] FCCA 2054
Notably, the Tribunal here accepts that the applicant will suffer some discrimination [131] and will have difficulties with his language [133]. There is, however, no distinct identifiable consideration whether there will be a cumulative effect of the two or even if there would be a cumulative effect by reason of his mental illness. Undoubtedly, such an obligation to consider these factors cumulatively existed in the Tribunal. Similarly, the Tribunal deals separately and specifically with the applicant’s language barriers at [133]. There is, however, no cumulative consideration together with his psychological illness or any other factors.
The applicant’s argument is summarised therefore as:
1. The applicant put a number of integers or claims in respect of severe or significant harm;
2. He put them forward for consideration separately and cumulatively (CB169);
3. The Tribunal’s reasons show separate considerations but no cumulative considerations;
4. Once there is a finding of the applicant suffering discrimination then there is a need to take into account the other factors in order to properly assess whether or not the applicant would be subject to severe or significant harm.
Counsel for the respondent argues that it is not obligatory for the Tribunal in its reasons to set out separately any independent cumulative considerations. That is, the reasons themselves can be demonstrative of that cumulative consideration. I am referred to, in that respect, the decision of the Full Court in Baker v Minister for Immigration and Citizenship[9] [42-45] where their Honours observed:
[9] [2012] FCAFC 144
[42] First, the primary judge was plainly correct to emphasise at the outset the relevance of the well-established principle to the effect that the reasons of administrative decision makers ought not to be construed minutely and with an eye keenly attuned to the perception of error. This is a particularly important principle having regard to the appellant’s submissions concerning the primary judge’s reading of [86] of the Tribunal’s reasons for decision.
[43] Secondly, and partly related to that first principle, we consider that the primary judge was correct to emphasise the need to appreciate that it is usual for administrative decision-makers (and indeed others) to express their reasons sequentially. For example, expressions of conclusion in a particular sequence do not necessarily indicate that there has been a failure to consider the evidence as a whole. The primary judge cited the following passage from Gleeson CJ’s judgment in Applicant S20 at [14]:
Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.
[44] Although that passage dealt directly with sequential reasons in relation to evidence given by different witnesses, we consider that its underlying principle, which recognises the need to read a decision-maker’s reasons as a whole, applies equally to a case such as here, where the Tribunal’s reasons deal sequentially with different issues or considerations. All the more so in our opinion where, having dealt with relevant individual primary and other considerations, the Tribunal uses language which expressly indicates that it has given consideration to particular matters both singularly and cumulatively, as is indicated in the sentence in [86] of the Tribunal’s reasons which we have emphasised in the passages set out in paragraph 30 above.
[45] Thirdly, and related to the second matter dealt with immediately above, we also agree with the emphasis given by the primary judge to the need for the Tribunal’s reasons for decision to be read as a whole. To approach the matter otherwise is to ignore the High Court’s admonition in Wu Shan Liang at 272 that:
... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
Counsel puts emphasis on the Tribunal in this matter utilising the word “concomitant” in respect of its findings at [128] and in the following terms:
For the reasons above, I make concomitant findings in favour of each of the propositions above based on country information put to him at hearing.
Counsel offers a definition of “concomitant” which I am content to accept as “related, associated, attendant or parallel” Counsel refers the Court to the Tribunal’s reasons at [114] where the following appears:
It was acknowledged that he would face language and cultural barriers there and in other parts of Nepal and attendant challenges finding work. It was suggested to him that while he may experience some discrimination in accessing healthcare, employment and accommodation, country information did not suggest that Indians or Tamil Indians, or homosexual men, whether or not they spoke Hindi or Nepali, and whether or not they were suffering from post-traumatic stress disorder, or a person with any combination of these attributes or who was a member of any social groups, did not or could not find work, accommodation, and access basic healthcare, or that they suffered serious or significant harm in the process or as a result of seeking these necessities. It was further suggested that country information suggested that any discrimination he might encounter appeared not to be widespread and it seemed there was only a remote chance that he would experience sustained discrimination either from the state or non-state-actors.
Counsel further refers the Court to the reasons of the Tribunal at [128] and [138] where phrases such as “For the reasons above…” and “For all of the above reasons…” appear as they do also at [145] and [146]. Counsel argues generally that such wording can cause the Court to reasonably infer a holistic and hence cumulative consideration of the factors set out in the applicant’s claim.
I accept as a general proposition the comments of the Full Court in Baker (supra). I accept that the Court should not take an over-zealous approach to judicial review in seeking out errors. In so doing, I accept that it is open for a Court conducting a review to make inference from the reasons itself and that it is not necessary for those reasons to distinctively or separately set out its obligations under headings such as “Cumulative consideration”. Rather, the use of particular language and sequencing in the reasons may readily provide the necessary inferences.
Nevertheless, since the complaint is made by the applicant and the requirement for cumulative consideration is indisputable, there must be a degree of critically objective review of the reasons themselves to determine whether the inferences can properly be taken. That is, whilst it might not be for the Court to be over-zealous in its critical analysis, there remains a requirement for critical appraisal and it would be equally remiss of a Court of judicial review to give only cursory or overly generous interpretations to reasons which, after all, have a primary function to inform the reader of the considerations of the author.
The language in the reasons at [132], in my view, is persuasive and enlightening as to the process of the Tribunal. Whereas the applicant puts his claims (CB 169) clearly utilising the alternative conjunctive “and/or” the Tribunal specifically words its consideration using only the conjunctive “or” noting, in my view, alternatives of consideration.
Each of the applicant’s claims are accorded separate consideration in separate paragraphs of the reasons without any clear connection or cumulative consideration either as a whole or considerations of combinations of claims.
The use of the word “concomitant” does not assist me. Indeed, the synonym “parallel” might well denote a separateness of consideration and certainly not a cumulative consideration. Similarly, I have had regard to the Tribunal’s language at [114] where there appears the phrase “…or a person with any combination of these attributes”. However, on reflection that paragraph appears within the context of suggestions put to the applicant to elicit comment or submissions. There appears later a heading “Findings on right to enter and reside in Nepal” from which follows evidence of the Tribunal’s considerations and particularly at [131] and [132]. It is here that the lack of the conjunctive “and” is most apparent.
I have considered the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingaham[10] where his Honour at [48-49] says:
[48] Ground 5 alleges that the Tribunal acted beyond jurisdiction in that it erred in law in considering whether the prosecutor had a well-founded fear of persecution and whether it was reasonable for him to relocate to Colombo by failing to consider the cumulative effect of his claims and the evidence in support of them.
[49] Ground 5 therefore expressly alleges jurisdictional error. While the ground is cast in the language of the failure to consider a relevant consideration, (ie “the cumulative effect of the prosecutor's claims and the evidence in support of them”), it is in substance a quarrel with the overall finding of fact made by the Tribunal – that the prosecutor did not have a well-founded fear of persecution for a Convention reason. The language of “cumulative effect” adds nothing. The absence of a substantive complaint of an error of law in this ground (as opposed to a quarrel with a factual finding dressed up as an error of law), combined with the failure to make out Grounds 3 and 4 compel, the conclusion that Ground 5 is not made out.
[10] (2000) 168 ALR 407
In the matter now before me there is a set of distinct claims made by the applicant. The factual basis is generally accepted by the Tribunal. The argument, therefore, as to “cumulative consideration” cannot be seen as a “dressing up”. There is no argument here of failure to consider an integer per se. The argument is rather a failure to cumulatively consider sets of claims or the whole aggregation of those claims. There is an obligation at law to consider the claims cumulatively. That obligation is reinforced in decisions post his Honour’s comments in Ex Parte Durairajasingaham (supra). To my mind the obligation reflects the potential for such accumulation of claims to impact on the requirement of serious and significant harm. An obvious example is the potential cumulative effect of an applicant without family support who also suffered a psychological illness. It may be perfectly reasonable and open for a Tribunal to singularly consider firstly, a claim of lack of family support and, secondly, the claim of a psychological illness and to reach different conclusions as separate factors than it would cumulatively.
Conclusion.
On my reading of the Tribunal’s reasons I am not persuaded that I can draw an inference of cumulative consideration of the factors set out by the applicant. Therefore absent any direct evidence of cumulative consideration, the Tribunal has, in my view, failed to take into account a relevant consideration and therefore misapplies the statutory task imposed on it. It follows that I find merit in this ground of complaint by the applicant and that he should be accorded the relief he seeks.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 29 July 2015
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