SZRTN v MIAC
[2013] FCCA 583
•21 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRTN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 583 |
| Catchwords: MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal asked the right question – whether Tribunal applied the wrong test – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.5, 36, 476 |
| Cases cited: Aronson , Dyer and Grove, Judicial Review of Administration Action (3rd edition) Thomson Law Book Co 2004 (current edition 5th edition (2013)) |
| Applicant: | SZRTN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1910 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 12 April 2013 |
| Date of Last Submission: | 12 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Cutler |
| Solicitors for the Applicant: | Migration Professionals |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application made on 24 September 2012 amended on 14 February 2013 and further amended on 12 April 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1910 of 2012
| SZRTN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 4 September 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 14 February 2013 and further amended in Court on 12 April 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 10 August 2012, which affirmed the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.
Relevant Background
The applicant was born in “Western Samoa” in 1981 (CB 14 and [4] at CB 75). He arrived in Australia “[i]n about 1985-1986 when [he] was aged about 5 years old” (CB [8] at CB 75).
On 29 May 2012 the applicant applied for a protection visa (CB 41 to CB 40, including attachments). On 14 June 2012 he applied again for a protection visa. On this occasion he was assisted by a different migration agent, who is also a lawyer (CB 40 to CB 150). Included in that documentation was a Statutory Declaration, declared by the applicant on 7 June 2012, in which he set out, and expanded upon, his claims to protection (CB 75 to CB 79).
The applicant advanced the following factual assertions in support of his claims to protection:
1.He was born in 1981 in Western Samoa. In 1983, he travelled to New Zealand with his family. He and his family remained in New Zealand until “about 1985-1986”, when the applicant’s father brought him to Australia ([4] – [8] at CB 75)
2.“Shortly after arriving in Australia”, in 1986, the applicant’s father “abandoned” him. Since 1986 the applicant only saw his father on two occasions (once in 1999 and once in 2012) ([10] at CB 75 to CB 76).
3.From age 5 years to 14 years, the applicant lived with his aunt and uncle and their children. He did not attend school ([11] at CB 76). He was not allowed out of the house and, although he attended church, he was told by his aunt and uncle that he could not tell anyone he was not “legal” as “the police would come and take [him] away” ([15] at CB 76).
4.At 13 or 14 years of age, the applicant ran away from home ([17] at CB 76). The applicant stayed with friends from church and “slept rough” for 3 to 4 years. He did not contact his family until he was “about 18 years of age” ([18] at CB 76 to [19] at CB 77). He spent some time in prison ([20] at CB 77).
5.The applicant has since reconciled with his aunt and uncle and has “a loving fiancé” ([24] at CB 77).
6.The applicant feared being returned to Western Samoa because he does not speak the language and has no family there ([29] – [30] at CB 77). Further, the applicant feared “significant threats” to his “personal security, human rights and human dignity” if he returned to Western Samoa ([32] at CB 78). In particular, that he had no work history, no driver’s licence and no “particular skills” that would allow him to “live as other Western Samoans live” ([36] at CB 78).
On 27 June 2012, the applicant’s representative provided written submissions in support of the applicant’s protection visa application to the Minister’s department (CB 115 to CB 150). Included with those written submissions were Statutory Declarations completed by a number of persons, including the applicant’s fiancé (CB 121 to CB 123).
The Delegate
From the material presented and, in particular, the applicant’s representative’s submissions, the delegate understood the applicant’s claims to the protection visa to be:
1.The Refugees Convention “ground” of “imputed nationality” (CB 162.3). This was understood to be based on the applicant’s absence from Samoa “since he was a toddler” and his lengthy stay in Australia.
2.That the applicant would suffer “significant harm” if he returned to Samoa, thereby engaging the complementary protection criterion at s.36(2)(aa) of the Act (CB 162.4).
The delegate found that the Refugees Convention ground of “imputed nationality” was stated as the essential and significant reason for the harm feared by the applicant (CB 163.4). While the delegate accepted that the applicant had had a “very unfortunate upbringing” (CB 165.2), he was not satisfied that the applicant would be “targeted” or “subjected to persecutory harm” by reason of his detachment from Samoan culture, or his illiteracy (CB 165.3).
Further, that the applicant’s claims were not supported with reference to country information. With respect to complementary protection, the delegate found that he was not satisfied that the applicant would face significant harm if returned to Samoa (CB 168.2).
The Tribunal
On 11 July 2012, again with the assistance of a “immigration law” “specialist” (also a registered migration agent) (CB 170), the applicant applied to the Tribunal for review of the delegate’s decision (CB 170 to CB 192).
Prior to the scheduled hearing, on 3 August 2012, the applicant’s representatives provided written submissions to the Tribunal (CB 216 to CB 222). On 6 August 2012, the applicant attended the Tribunal hearing, along with three witnesses (his aunt, uncle and cousin) and two “support” persons (his “partner” and his “partner’s sister”) (CB 226 to CB 227).
In its decision record the Tribunal recorded that, at the hearing, the applicant ([50] at CB 249):
“…made it clear that he was renouncing the claims set out in his two protection visa applications, as well as in the most recent submission from his advisor, that he feared persecution for a Convention reason in Samoa.”
[The applicant appears to have previously applied for a protection visa (see [24] at CB 242 and [3] above). I note, the Tribunal appears to have proceeded to deal with the information in the “earlier” application as if it was part of the application before it. In any event, no issue was taken by the applicant before the Court in relation to this.]
The applicant still claimed to fear that his “lack of education, ignorance of Samoan culture and language and lack of family connections” would make it “difficult” for him if returned to Samoa ([50] at CB 249). In this context, the Tribunal understood the applicant to be claiming that he faced a real risk of “significant harm” if returned to Samoa. That is, that the applicant was advancing claims on complementary protection grounds (with reference to s.36(2)(aa) of the Act) ([50] at CB 249).
The Tribunal therefore found that the applicant did not have a well founded fear of persecution for a Refugees Convention reason and proceeded to consider the applicant’s claim under s.36(2)(aa) of the Act ([52] at CB 250).
The Tribunal accepted that the applicant “grew up” in Australia and, if he returned to Samoa, he would have to leave behind his family and friends, including his fiancé ([54] at CB 251). However, the Tribunal did not accept that the applicant had no Samoan language ability, or that he knew nothing about “various aspects of Samoan culture” (first and second dot points at [53] at CB 250). The Tribunal accepted that the applicant had no immediate family in Samoa, but found that members of his extended family did live there and that he would not be “entirely without family connections” (third dot point at [53] at CB 251).
While the Tribunal accepted that Samoa had a small developing economy, and that its economy had encountered problems recently, it was not satisfied that the applicant would have “no employment prospects” (fourth dot point at [53] at CB 251). Nor did the Tribunal accept that the applicant would be denied access to the public health, or education, systems in Samoa (fifth dot point at [53] at CB 251). In addition, the Tribunal found that the applicant would not be “unable to benefit from remittances from his relatives in Australia” (sixth dot point at [53] at CB 251).
The Tribunal accepted that the applicant would face “difficulties” and that returning to Samoa would “involve a major adjustment for him” ([54] at CB 251). However, it was not satisfied that those difficulties would “…involve cruel and inhuman treatment, degrading treatment or arbitrary depravation of life” ([55] at CB 252). As a result, the Tribunal was not satisfied that the applicant’s difficulties, individually and cumulatively, were such as to bring him within the scope of Australia’s complementary protection provisions ([55] at CB 252).
Application to the Court
The grounds of the application to the Court, as further amended, are as follows:
“1. The Tribunal has taken into account an irrelevant consideration, or alternatively, misconstrued the test to be applied by considering that ‘discrimination’ is an element of cruel, inhuman or degrading treatment for the purpose of determining whether there is a real risk the Applicant will suffer significant harm.
2. The Tribunal has misapplied the statutory test of whether there is a real risk the Applicant will suffer significant harm in that it failed to consider:
(a) the meaning of cruel, inhuman or degrading treatment; and/or
(b) whether breaches of the Applicant’s socio-economic rights can amount to cruel, inhuman or degrading treatment.
(c) the meaning of ‘substantial grounds for believing”
Particulars
The relevant socio-economic factors are that the Applicant does not speak Samoan, does not understand Samoan culture and would have no employment prospects in Samoa. The Applicant also relies on ground (4) as a particular of this claim.
3. In determining whether there is a real risk that the Applicant will suffer significant harm, the Tribunal failed to consider the information put forward by the Applicant being the information listed in paragraphs 29 and 31 of the RRT decision record dated 13 August 2012, namely:
(a) Excerpt from Samoa’s national report to the UNHCR
(b) Extract from the Encyclopedia of New Zealand
(c) The ‘Faaulufalega thesis’
(d) Country information from US State Department, DFAT, UNHCR and UNICEF
4. The Tribunal failed to consider the RRT’s ‘Complementary Protection Training Manual’ as information relevant to the determination of whether it is likely that the Applicant will suffer significant harm.”
Leave was granted to the applicant, at the final hearing, to file in Court a further amended application that inserted a third paragraph into ground two. (See as inserted above at [18])
The applicant explained that ground one remained the same, ground two was as amended, ground three was not pressed, and that ground four was “reduced” to a subset of, or a particular to, ground two. That is, ultimately, the applicant only pressed two grounds before the Court (ground one and ground two, as amended and incorporating ground four).
Before the Court
At the final hearing, Mr P Cutler of counsel appeared for the applicant. Mr T Reilly of counsel appeared for the first respondent. The Court had before it written submissions filed on behalf of both parties, as well as the affidavit of Kim Lee Hunter, sworn on 14 February 2013, filed by the applicant and which annexed a transcript (“T”) of the Tribunal hearing. The Court Book was also put before the Court. The applicant provided a copy of the Refugee Review Tribunal’s (“RRT”) relevant training manual (“Complementary Protection Training Manual” (January 2012), McAdam, J and Albert, M) (“the Manual”) as an “aide memoir”.
Consideration: The Flaw in the Applicant’s Submissions
It must be said that both the applicant’s grounds bear a close connection to each other and would have benefited greatly from the applicant having regard to the relevant terms as defined in s.5 of the Act.
In any event, the applicant’s attack, as I understood it from the application as further amended, was as follows. First, predominantly with reference to ground one, the Tribunal erroneously considered that “discrimination” was an element of “cruel, inhuman or degrading treatment” in its assessment of whether there was a real risk the applicant would suffer “significant harm” if he returned to Samoa.
Second, and predominantly with reference to ground two, the Tribunal misapplied the relevant statutory test because it failed to consider the meaning of “cruel, inhuman or degrading treatment” and whether the applicant’s “socio-economic rights” could amount to such treatment.
Further, the applicant asserted that the Tribunal failed to understand the meaning of “substantial grounds for believing” (as it appears in s.36(2)(aa) of the Act) also and failed to have regard to the Manual which would have assisted in the Tribunal’s understanding of “substantial grounds for believing”.
The applicant submitted that the test, namely “substantial grounds for believing”, was outlined with reference to authorities in the Manual. These authorities were Cabal v United Mexican States (No 2) [2000] FCA 445, Cabal v United Mexican States (No 3) [2000] FCA 1204 and Rahardja v Republic of Indonesia [2000] FCA 1297. From these authorities, the applicant submitted that the test was “something less than the balance of probabilities”. Further, that from the Tribunal’s decision record it was not clear what threshold the Tribunal had applied.
Referring to Judicial Review of Administrative Action by Mark Aronson, Bruce Deyer and Matthew Groves (3rd edition) Thomson Law Book Co 2004 [I note the applicant relied on the 3rd edition which has been superseded by the current edition 5th edition (2013)] (“Aronson, Dyer and Groves”), the applicant submitted that it was difficult in some matters to discern between an error of law and an error of fact. He submitted that Glass JA set out a relevant three step test in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156:
“determining the facts by way of primary findings and inferences, directing himself at so the law and applying the law to the facts found.”
The applicant submitted that, using that test, it was clear from the Tribunal’s decision record that there was no discussion by the Tribunal of it applying the law to the facts, making an error of law.
Further, the applicant asked the Court to refer to the test quoted in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 389 (originally from Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287) which, relevantly, provided:
“1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.
2. The ordinary meaning of a word or its non-legal meaning is a question of fact.
3. The meaning of a technical legal term is a question of law.
4. The effect of construction of a term whose meaning or interpretation is established is question of law.”
I understood the applicant’s reference to the authorities set out above and the tests said to be derived from them, to be put for the purpose of arguing that the Tribunal fell into error because it did not consider the meaning of relevant terms as set out in s.36(2)(aa) of the Act.
Further, the Tribunal’s failure to consider the meaning of relevant terms was said to be revealed because the Tribunal made no reference to available sources for the relevant meanings of these terms. In part, the Tribunal failed to refer to the Manual. The Manual contained references to international jurisprudence which, in the applicant’s submission, would have assisted the Tribunal in its consideration by providing an understanding of the relevant terms.
I should also note that some reference was made in submissions to the Tribunal having dealt with the Refugees Convention claim in some detail, in considering the relevant legal definition and legal framework. Yet, by comparison, it was said that the Tribunal failed to direct this level of detail to the applicant’s complementary protection claims.
The short answer to the applicant’s assertion, expanded upon below, is that the meanings of these terms were defined in the Act (s.5 of the Act). The Tribunal had regard to these definitions (see [17] at CB 241). In these circumstances, there was, at least, no obligation on the Tribunal to consider the Manual or extrinsic international jurisprudence.
Consideration: the Definitions and the Tribunal’s Analysis
During the Tribunal hearing, and in his evidence, the applicant made clear that he had abandoned the application (before the Tribunal) so far as it was relevant to s.36(2)(a) of the Act, instead relying only on s.36(2)(aa) of the Act. In light of that, the applicant’s application for a protection visa was ultimately only pressed before the Tribunal on the basis of the complementary protection criterion set out at s.36(2)(aa) of the Act:
“(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”
The term “significant harm” is defined at s.5 of the Act:
"’significant harm’ means harm of a kind mentioned in subsection 36(2A)”
Section 36(2A) of the Act is in the following terms:
“(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.”
Each of the key phrases are also defined in s.5 of the Act:
"‘torture’ means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
"‘cruel or inhuman treatment or punishment’ means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
"‘degrading treatment or punishment’ means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”
[Emphasis in the original.] [Note: “Covenant” is defined in s.5 as: “the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986”.]
As against this specific point in the applicant’s submissions, the Minister agreed that “discrimination” was not an element in the relevant statutory definition of the complementary protection provision. Therefore, had the Tribunal sought to import this concept as part of the definition it would have fallen into error (see further below).
The applicant relied on, in particular, [53] (at CB 250) to [55] (at CB 252) of the Tribunal’s analysis. The applicant submitted that [53] (at CB 250 to CB 251) was a “list of facts” which he did not otherwise dispute, but which make repeated reference to “discrimination”.
Paragraph 54 (at CB 251 to CB 252) is in the following terms:
“I do not underestimate the difficulties the Applicant would likely face in returning to take up residence in Samoa, a country he left at the age of two or three. I accept, as he said at the hearing, that this would involve a major adjustment for him, for which he would have to prepare himself mentally. I also accept that it would not be at all easy or congenial for him to make such a transition, and that in doing so he would be forced to accept a standard of living markedly lower than that he has enjoyed in Australia. He would face the added problem of leaving behind his friends and family members he grew up with in Australia. I accept, although with some hesitation, that among these figures is a person who is his fiancée. I also accept that he would be recognised as a person who had spent much of his life in Australia.”
In the applicant’s view, [55] (at CB 252) represents the Tribunal’s final conclusion:
“Having considered all the information before the Tribunal, however, I am unable to be satisfied that the Applicant would be seen as a non-Samoan or that any difficulties he might face in Samoa would result from discriminatory treatment, either by the Samoan authorities, members of his own extended family or society at large. Nor, even without the element of discrimination, am I satisfied that there difficulties, considered individually and cumulatively, would represent significant harm sufficient to bring him within the scope of Australia’s complementary protection provisions. Specifically, I am not satisfied they would involve cruel and inhuman treatment, degrading treatment or arbitrary deprivation of life.”
In essence, the applicant’s attack was explained before the Court as follows. The error of law was that the Tribunal identified the relevant complementary protection law, made factual findings about the applicant’s claims, however, in reaching its conclusion, it did not “satisfy” the “legal test”. “Discrimination” did not initially appear to feature in these submissions (see further below).
In any event, that failure to “satisfy” the “legal test” was said to derive from the Tribunal’s omission in properly making the “bridge” between the facts and the law. The applicant said that that was revealed because the Australian law is derived from international treaties which have been the subject of overseas jurisprudence. Further, the Tribunal’s failure to consider any of the international jurisprudence, and its failure to have regard to the Manual, which, amongst other things, discussed that jurisprudence, revealed that the Tribunal was not in a position to find that the applicant was “not eligible” for complementary protection because it did not consider “what complementary protection means, not just what it says in the Act” (the applicant’s oral submissions before the Court).
The applicant’s submissions sought to emphasise that there is a “difference” between a finding about words which have their natural English meaning” and “words which have a technical legal meaning”. The Tribunal’s error is said to be revealed because there was no discussion by the Tribunal, of either the ordinary, nor technical, meaning in its decision record.
As the Minister submitted, the Act provides definitions for each of the relevant terms at s.36(2A) of the Act. Importantly, the definition of “significant harm” at s.5 of the Act limits such harm to those “…of a kind mentioned in subsection 36(2A)”. I agree with the Minister that that makes that definition of “significant harm” exhaustive. As set out above, it is important to note that the Tribunal acknowledged this definition in its decision record (see [17] at CB 241). The “technical” meanings of phrases, derived from academic studies, also do not assist in light of the definition in the Act.
The above provides the basis for rejecting the applicant’s submission that the Tribunal fell into error in not having regard to international jurisprudence, or the Manual.
The difficulty for the applicant is also, in my respectful view, clear when regard is had to Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (per Lander, Jessup and Gordon JJ) (“MZYYL”). That Full Federal Court case involved consideration of the complementary protection provisions of the Act. The following is, in my respectful view, self explanatory and provides the answer to the applicant’s contention that the Tribunal should have looked at sources external to the Act:
“[20] It is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely ss 36(2)(aa) and 36(2B), construed in the way that has been indicated.”
This can be understood in the context of [18] of MZZYL:
“[18] The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria ‘that engage’ Australia’s express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC) (collectively the International Human Rights Treaties): Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s.5 of the Act of ‘torture’ and ‘cruel or inhuman treatment or punishment’. Unlike s.36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of ‘torture’ in the Complementary Protection Regime is different from that in the CAT: see s.5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Sections 36(2B)(a) and (b) have adopted a different and contrary position. Sections 36(2B)(a) and (b) relieve Australia from its protection obligations in s.36(2)(aa) if those two particular circumstances are satisfied.”
To the extent that the applicant sought to rely on the proposition that the Tribunal also fell into error by not having regard to the Manual, some parallel can be drawn between the Manual, and the authorities referred to there, and the United Nations High Commission for Refugees (“UNHCR”) Handbook (“the Handbook”).
At best, the authorities provide that the Handbook “does no more than provide a source of guidance and assistance” (see Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 at [10] per Finn J). See also Shah v Minister for Immigration & Multicultural Affairs [2000] FCA 489 at [9] per Tamberlin J: “…While some useful guidance can be obtained from the Handbook it is not determinative in any sense…”. In Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 per Hill J, the Court noted the “dangers” inherent in using the Handbook as an aid to the interpretation of relevant terms.
Further, as with the reference to Aronson, Dyer and Groves in the current case, the “opinions” from international commentators on refugee law have sometimes been useful and sometimes approved by the Courts in Australia (for example, J.C. Hathaway, “The Law of Refugee Status”. Butterworths (Canada) 1991). However, it cannot be said that that is always the case.
In any event, in the current case, given there is no binding obligation on the Tribunal to refer to the Manual, external authorities or international commentators, no error is revealed. Further, in the particular circumstances presented here, the definitions set out in s.5 of the Act, exhaustive as to meaning, make the extrinsic material irrelevant.
Consideration: Further Answers to the Applicant and his Grounds
The applicant’s argument also fails at another level. The task for the applicant in these proceedings, if he wanted to reveal jurisdictional error on the part of the Tribunal, was not simply to establish that the Tribunal failed to have regard to international jurisprudence and the Manual and the like, but that the Tribunal was wrong in its understanding, or application, of the relevant statutory test.
As the Minister submitted, the applicant did not attempt the latter. Rather, the applicant sought to rely on only establishing the former. In the circumstances, that does not assist him.
The applicant also sought to propose error in the Tribunal’s decision record with the Tribunal’s focus on the words “substantial grounds for believing” as they appear in s.36(2)(aa) of the Act.
In submissions, the applicant referred the Court to a part of the Manual dealing with various legislation and authorities for the purpose of developing his argument that the Tribunal applied the wrong test in relation to the phrase “substantial grounds for believing”. In essence, the applicant’s argument was that the relevant test posited by the phrase established a standard that was “something less than the balance of probabilities”. The applicant’s attack on the Tribunal’s decision was expressed as being that, when the Tribunal expressed its lack of satisfaction (that there was a real risk of significant harm), it was “not clear…how high [a] threshold [it] was applying”. That is, that the Tribunal set the relevant “bar” “too high” (in this regard the applicant also referred the Court to Aronson, Dyer and Groves).
The Minister did not dispute that the Tribunal would have fallen into error if it had applied a balance of probabilities test. This was said with specific reference to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 296 ALR 525 (“SZQRB”) at
[242]-[248] per Lander and Gordon JJ, [297] per Besanko and Jagot JJ and [342] per Flick J.
I agree with the Minister that the Tribunal did not fall into the error proposed by the applicant. First, contrary to the applicant’s position, the Tribunal’s actual relevant findings were reliant upon, and analysed in light of, the relevant statutory language. As set out above, this is the exhaustive basis for the relevant definitions and, therefore, meanings.
Second, as against this, I cannot see, and certainly not on a fair reading of the decision record, that the Tribunal imposed a standard inconsistent with that explained in SZQRB. As was said, the test is “is there a real chance that [the applicant] will suffer significant harm (as that is defined in s.36(2A)) were he to be returned to” the country where he claims he will suffer such harm (SZQRB at [246] per Lander and Gordon JJ).
The relevant parts of the Tribunal’s analysis in relation to complementary protection are set out at [53] (at CB 250) to [55] (at CB 252). Further, the relevant criteria are set out at [17] (at CB 241). I note that [53] (at CB 250) deals with the Tribunal’s analysis as to whether the applicant would suffer discrimination, which is also the subject of ground one (see further below).
In relation to ground two, and “particular c” of that ground, once the applicant’s argument as to the reference to the materials extrinsic to the Act is taken away, there was little left of the applicant’ attack. The Tribunal’s analysis was directed to the matters at s.36(2A) of the Act, as defined in s.5. I agree with the Minister that there is nothing in that analysis to say that the Tribunal applied a balance of probabilities test.
Further, the Tribunal’s finding was that it was not satisfied ([57] at CB 253):
“…that the information before the Tribunal provides any basis for finding there are substantial grounds to believe that as a necessary and for finding there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Samoa, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.”
That is reflective of the relevant statutory language and, at least on a fair reading as the Minister submits, reflects an understanding of the relevant standard of proof.
The finding of, in effect, no basis (“any basis”) is reflective of the findings made by the Tribunal, all of which were reasonably open to the Tribunal on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). In all, ground two, as amended before the Court and ultimately submitted, is not made out.
Ground one posits a specific aspect of what is said to be the Tribunal’s misunderstanding of the relevant test. That is, that in determining the real risk of significant harm the Tribunal incorrectly proceeded on the basis that the matter of “discrimination” was an element of “cruel, inhuman or degrading treatment”. The applicant also contended that the Tribunal fell into error by taking into account an irrelevant consideration in regard to discrimination.
To the extent that the applicant’s argument in ground one relies on the error asserted in ground two, then that basis is not available to the applicant given what is set out above. (That is, the “real” meaning of “complementary protection”).
The resolution of ground one depends upon, at least, a fair reading of [53] (at CB 250) and [55] (at CB 252) of the Tribunal’s decision record (see [39] above). The applicant says that, by dwelling extensively on matters of “discrimination”, the Tribunal “imported” this element into the relevant test. As noted above, the Minister agreed that “discrimination” is not an element of the statutory definition of the complementary protection provisions.
I agree with the Minister that Tribunal decision records are to be read fairly (Minister for Immigration & Ethnic Affairs v Wu ShanLiang [1996] HCA 6; (1996) 185 CLR 259. However, it also must be noted that that does not extend to excusing any ambiguity in a Tribunal decision record (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 per Stone J).
In this light, the following stands in answer to the applicant’s complaint. First, the Tribunal dealt extensively with the matter of discrimination because, on a plain reading of the applicant’s claims, discrimination was, in essence, the basis on which the applicant and his agent said he would suffer significant harm if he were to return to Samoa. See the representative’s “pre-hearing” submissions of 3 August 2012 (CB 216). Once the “imputed nationality” argument is removed, what remains is (CB 216.7):
“4. Should he be returned to Samoa, [the applicant] fears that he will be subject to severe discrimination threatening his ability to subsist.”
[Emphasis added.]
In the same submission under the heading of “Complementary Protection” the agent proceeded to address, and only address, “severe discrimination”.
The Tribunal understood that this was the basis of the applicant’s claim to complementary protection (see [30] at CB 245 to [31] at CB 246).
At the Tribunal hearing, once the applicant had disavowed any claims to persecution under the Refugees Convention ([35] at CB 247), the applicant proceeded to put forward his reasons as to why he did not want, or would not, go back to Samoa ([36] at CB 247 to [46] at CB 249).
The Tribunal saw these claims as, at least inferentially, raising a claim that the applicant would suffer discrimination if returned to Samoa. That was even though the applicant was not clear that there would be “any overt act of discrimination” ([50] at CB 249). The Tribunal accepted “discrimination” was linked to the applicant’s claim to engage Australia’s complementary protection obligations ([50] at CB 249).
What relevantly follows in the Tribunal’s decision record ([53] at CB 250) is, as the Minister submits, the Tribunal addressing the applicant’s claims, as put by him and his agent, to fear significant harm. Had the Tribunal not dealt with these matters then it may be that the applicant would have sought to complain of some failure to deal with a claim, or an integer of a claim (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630).
Paragraph 55 of the Tribunal’s decision record (at CB 251) on which the applicant primarily bases his attack is in my view, to be at least fairly, understood as follows. In the first sentence the Tribunal dealt with the applicant’s claims, as made by him, relevant to complementary protection. That is, the matter of discrimination. The second and third sentences make clear that the Tribunal understood the relevant test.
In all, I do not understand the Tribunal to have attempted to import discrimination as an element into the relevant test. Rather, the Tribunal dealt with the applicant’s claim that he would suffer discrimination and that that was of such significance that he met the complementary protection criterion in s.36(2)(aa) of the Act. In all therefore, ground one also is not made out.
I should also note that, as set out above (at [30]), the applicant sought to draw some distinction between the “comprehensive” way the Tribunal approached its setting out of the relevant test and related meanings of constituent terms in relation to the Refugees Convention, with what was said to be the comparative paucity of detail in relation to complementary protection.
The answer is that the “exhaustive” set of relevant definitions in relation to complementary protection create a situation different to that relation to the consideration of the Refugees Convention. While some measures have been taken to statutorily explain relevant terms (see, for example, s.91R(1) and (2) of the Act as to the meaning of “persecution”) most of the relevant understanding is derived from case law.
Conclusion
The applicant’s grounds are not made out. It is appropriate that the application, as further amended, be dismissed. I will make an order accordingly.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 21 June 2013
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