SZSMQ v Minister for Immigration & Anor
[2013] FCCA 1768
•31 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSMQ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1768 |
| Catchwords: MIGRATION – Review of decision of Independent Protection Assessor – whether reviewer applied the wrong test – whether the reviewer asked the right question – jurisdictional error found – application allowed in part – declaration made. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 65, 476 |
| Plaintiff M61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) |
| Applicant: | SZSMQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | PHILIPPA MCINTOSH IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 51 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 July 2013 |
| Date of Last Submission: | 2 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Cirillo |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
THE COURT DECLARES THAT:
The 10 December 2012 recommendation of the assessor that the applicant not be recognised as a person to whom Australia has protection obligations was not made according to law.
THE COURT ORDERS THAT:
The name of the first respondent is amended to ‘Minister for Immigration and Border Protection’.
The Minister is restrained, by himself or his department, officers, delegates or agents, from relying upon the recommendation.
The first respondent pay the applicant’s costs set in the amount of $10,000.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 51 of 2013
| SZSMQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| PHILIPPA MCINTOSH IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected.)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 14 January 2013, and amended on 2 July 2013, seeking review of the recommendation made by Ms Philippa McIntosh in her capacity as Independent Protection Assessor (“the assessor”) to the first respondent Minister that the applicant not be recognised as a person to whom Australia has protection obligations, either under the Refugees Convention,[1] or having regard to the complementary protection provision in the Act.
[1] United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”)
The application to the Court also seeks injunctive relief, and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319.
Background
The applicant arrived in Australia on 11 August 2011
(Court Book – “CB” – CB 36). He was classified by the Australian authorities as an “irregular maritime arrival” (CB 8).
On entry, the applicant was interviewed with the assistance of a “Kurdish (Persian)” interpreter (CB 8) (“the entry interview”). The applicant claimed that he was a stateless Faili Kurd born in Iran (CB 10).
On 8 October 2011, the applicant, assisted by a registered migration agent provided under the “Immigration Advice and Application Assistance Scheme”, made an application for “Protection Obligations Determination” (“POD”) (CB 26 to CB 76, including attachments). Included in that application was a “Statement of Claims” made by the applicant, setting out his claims to protection (CB 40 to CB 45).
The applicant’s claims to protection can be summarised as follows:
1)He was a stateless Faili Kurd and had “no officially recognised identity in any country” ([2] at CB 40).
2)He and his family, who had previously lived in Iraq, faced “discrimination”, due to their ethnicity, in their ability to access education and employment, and were also subjected to “random checks” by the authorities ([9] at CB 40 to [15] at CB 41 and [32] at CB 43).
3)He also claimed that he had faced persecution and suffered harm because of his religious beliefs. He claimed that he “…saw on television that Western Countries, which has been founded on Christianity, has more peace than Iran and any Islamic countries”. He claimed that as a result of this he developed “a respect for the religion” ([13] at CB 41).
4)Further, he claimed that on an occasion in 2005, while he was working for a mechanic, he encountered four men outside the mechanic shop discussing religion. He interrupted their conversation and informed them that he ([17] at CB 41):
“…did not believe the Islamic religion, that the religion lacked any human rights and people say they are Muslim but no one actually follows it and that it is a religion of violence and not peace…”
He then claimed that one of the men returned two days later and took him away. He claimed that the man, and another “new” man, proceeded to harm him in a number of ways for three days. He claimed that he was released because his “boss” had spoken to the people who had taken him and convinced them to release him ([19] at CB 41 to [25] at CB 42).
5)He claimed that after the incident he left Iran with the assistance of “people smugglers” and stayed in Greece for “approximately 3.5 years”. He claimed that he returned to Iran in 2010 because he could no longer get a job in Greece and needed to return to Iran to meet his “basic needs” ([27] – [28] at CB 43).
6)On his return to Iran in 2010, he faced the same “discrimination”, such as being harassed and “sworn at”, and could not get “new” documents, as his previous ones had expired, because he would “be questioned about the delay and interrogated to find out if [he] was a spy for another country” ([32] at CB 43).
7)Further, he claimed that he would be persecuted if he was returned to Iran for seeking asylum in another country and that he would not be able to voice his religious opinion there. Further, he claimed that, in the alternative, if he were to be returned to Iraq he would have no legal documents to establish his identity and would be persecuted due to his ethnicity and “non-religious beliefs” ([33] at CB 43 and [39] at CB 44).
On 24 February 2012, a “Protection Obligations Evaluation officer” (“the departmental officer”) found that the applicant was not a person to whom Australia owed protection obligations. The departmental officer was not satisfied that the applicant met the definition of a refugee. [I note that the departmental officer stated that the applicant attended a “POE interview…on 13 December 2011 (CB 81.4). There is no record of the interview in the Court Book.]
The applicant’s POD was automatically referred for an Independent Protection Assessment (“IPA”). He was assisted in making submissions to the assessor by a different registered migration agent who was also a lawyer.
There were various attempts to interview the applicant, as outlined by the assessor in her assessment record ([84] at CB 358 to [98] at CB 362). [I note that the applicant’s case was initially allocated to a different assessor, however due to “unavailability” it was re-allocated to the assessor ([84] at CB 358).]
The applicant, through his representatives, provided various documents that indicated his “incapacity” to attend an interview with the assessor due to “mental illness” including two “Service for the Treatment and Rehabilitation of Torture and Trauma Survivors” (“STARTTS”) reports (see [87] at CB 359 and [110] at CB 363).
The assessor accepted that the applicant was not competent to participate in an interview after communication from his representative. I note that the correspondence in the Court Book and the assessor’s assessment indicate that the applicant’s representative had difficulties in communicating with the applicant, and that the expression by the applicant that he “did not wish” to participate in an interview was relayed through a “DIAC Case Manager”.
The assessor proceeded to make her final assessment and recommendation on the information before her. This included his initial application, the records of his claims at his POE interview, “numerous records of the claimant’s contact with International Health and Medical Services”, two STARTTS reports and various written submissions from his representatives.
The assessor felt “unable to establish with any confidence”, based on the information that was before her, that the events claimed by the applicant had occurred ([175] at CB 378). Following this, she found that she was not satisfied that the applicant faced persecution for a Refugees Convention reason ([188] at CB 380 to [213] at CB 383).
In assessing the applicant’s claims against the complementary protection criterion (s.36(2)(aa) of the Act), the assessor found that there was no applicable “receiving country”, for the purposes of the Act, in the applicant’s case. The assessor also found that “for the reasons above”, that there were “no substantial grounds for believing” the applicant would suffer “significant harm” if returned to Iran ([215] at CB 383 to [221] at CB 384).
Before the Court
At the hearing Ms S Cirillo of counsel appeared for the applicant. Mr P Knowles of counsel appeared for the Minister.
The grounds of the application, amended as at 2 July 2013, were:
“1. The Assessor fell into jurisdictional error in finding that she was ‘not satisfied that, if [the claimed events] occurred at all, that they were essentially and significantly for a Convention reason’ (at [180]) in failing to also consider the possibility that the alleged events did essentially and significantly occur for a Convention reason in determining whether the applicant has a well-founded fear of future persecution.
Particulars
a. The Assessor was satisfied that the applicant was ‘not competent to give evidence’ (at [163]).
b. The Assessor found at [175] that she was ‘unable to establish with any confidence from the information before [it] whether the [applicant] was harassed, threatened or detained at any time in Iran’ for the reasons stated in that paragraph.
c. The Assessor found at [180] that the applicant’s account ‘was so lacking in detail’ that she was ‘unable to establish’ if any of the events claimed by the applicant occurred in Iran.
d. In consequence of the findings in the particulars above, the finding that is the subject of this ground was attended by real doubt such as to have required the Assessor to consider the ‘what if I am wrong’ test.
2. Further, or in alternative to ground 1, the Assessor fell into jurisdictional error because there was no evidence to support her finding that, if the events that the applicant claimed occurred, that they did not occur ‘essentially and significantly for a Convention reason’ (at [180]).”
The applicant presented a “proposed” amended application with his written submissions, attached to an affidavit of Mr Farid Varess, solicitor, affirmed on 18 June 2013, and sought to file it before the Court. Essentially, this was to add a further ground to the application (the “new” ground three). Written submissions in relation to the “new” ground were provided by both parties. Leave was granted.
Ground three is in the following terms:
“3. The Assessor fell into jurisdictional error by misconstruing or misapplying the applicable law, or otherwise failing to ask herself the right question when she rejected the applicant’s claim for complementary protection pursuant to s.36(2)(aa) of the Act (at [220]).”
As will be seen below, the applicant does not succeed in relation to grounds one and two. He does, however, succeed in relation to ground three and, for the reasons set out below, it is appropriate that he be granted the relief he seeks. For the sake of completeness I have also addressed grounds one and two.
The Court had before it the bundle of relevant documents filed by the Minister (“Court Book – CB”) and written submissions from both parties.
Grounds One and Two: The Arguments
Ground one of the application asserts that, in the circumstances, the assessor was required to apply what is generally known as the “What if I am wrong? test”, and that she fell into error in failing to do so. This is said to have arisen with reference to [180] (at CB 379) of the assessor’s record (see in particular words in bold):
“His account is so lacking in detail that I am unable to establish if any of the above events, as described at various points, occurred in Iran. I am not satisfied that, if they occurred at all, they were essentially and significantly for a Convention reason. I am therefore not satisfied that the Iranian authorities have any record of his political, religious or indeed other views. Therefore they have no records of his views that might provide the basis for a well-founded fear of persecution in the reasonably foreseeable future.”
[Emphasis added]
The related ground two asserts, further, or in the alternative, that the assessor erred in making this finding because there was no evidence to support it.
The applicant relied, essentially, on two broad principles. The first is the “What if I am wrong? test” as a requirement in the proper application of the “real chance” test. As the applicant submitted, in Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) a majority of the High Court said that “the degree of probability that an applicant has experienced persecution in the past is relevant in determining whether there is a ‘real chance’ of future persecution” (at 576). Further, as stated by Gleeson CJ and McHugh J in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 (“Abebe”), it was made clear that Guo stood for the principle that (at [83]):
“…even if even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution”
This test has been further explained by Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (“Rajalingam”). The Full Court in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 (“MZXSA”) summarised Sackville J’s enunciation of relevant principles as follows (at [95] per Keane CJ, Perram and Yates JJ) :
“In Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 Sackville J (with whom North J agreed) analysed the question of
decision-making in migration cases. His Honour considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs, Ex Parte Abebe [1999] HCA 14; (1999) 197 CLR 510, for the purpose of addressing the requirement of whether an applicant for a protection visa has a well-founded fear of persecution. His Honour (at [60]-[67]) distilled a number of principles from those decisions, including the following:
(a) There are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred even though it finds those events probably did not occur. This is because the Tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.
(b) In this connection it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. Therefore, if the Tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering whether the applicant has a well-founded fear of persecution.
(c) Reasonable speculation may require the decision-maker to take into account the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.
(d) There is no reason in principle and nothing in the reasoning of the High Court in those cases that the Tribunal must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of convictional confidence that the findings are correct.
(e) Similarly there is nothing in the reasoning of the High Court which permits a Court exercising powers of judicial review to "impute" to the Tribunal a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the Tribunal should not or could not have relied on those findings to hold that the applicant’s fear of persecution was not well-founded. To do so would be to engage in merits review.
(f) In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal’s own reasons. If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.”
The Minister relied on SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233 per Barker J (“SZNOX”), that, while the applicant did not bear an onus of proof in the assessment, it was “for the [a]pplicant to provide evidence and argument sufficient to enable the decision-maker to establish the relevant facts” ([18] per Barker J). Further, the Minister submitted that the assessor was not under an obligation to “expressly accept or reject the [applicant’s] claims” ([6] of the Minister’s written submissions referring to Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [17] per Black CJ, Sundberg and Bennett JJ (“VSAF”)).
The Minister submitted that while there were some circumstances in which the assessor would be required to consider the “What if I am wrong? test”, those circumstances are established with reference to the assessor’s own reasons and any doubt shown within them (MZXSA at [95]). Further, the Minister submitted, referring to the decision of the Full Court in Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 (“Applicants A233”), that the “mere fact” that the assessor’s reasons “are expressed in terms of a lack of satisfaction about certain events having occurred, and in terms of non-acceptance of those events having occurred, does not of itself indicate some lack of doubt on its part” (Applicants A233 at [19]).
The second principle the applicant relies on is the “no evidence” concept, as an error at common law. The applicant submitted ([26] of applicant’s written submissions):
“The assessor’s state of satisfaction must not be based on findings of fact for which there is no evidence. The existence of a particular fact is a question of law, so that a finding that is based on ‘no evidence’ is an error of law. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (at 356) Mason CJ said that there was no place for judicial review and no error of law, ‘[s]o long as there is some basis for an inference – in other words, the particular inference is reasonably open…’ Aronson and Groves in Judicial Review of Administrative Action, 5th ed, 2013 (at 246) have said that ‘[t]he ‘no evidence’ grounds cuts out when even a skerrick of evidence appears’.”
[For submissions see further below]
Ground One: Consideration
The applicant’s position is that the assessor fell into legal error because she failed to consider the possibility that the facts which the applicant claimed formed the basis for his fear of persecution did, in fact, occur.
Article 1A(2) of the Refugees Convention sets out the meaning of “refugee”. This provides for a “well-founded fear” of persecution for one or more of the grounds set out in that Article. A fear of being persecuted is “well-founded” if there is a “real chance” of being persecuted.
That test was stated and explained by the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan Yee Kin”) at 389 per Mason CJ and Toohey J and at 406 per Dawson J. (See also Guo and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). In essence, a “real chance” must be substantial as distinct to being remote (Chan Yee Kin per Mason CJ at 389, Dawson J at 397-398 and Toohey J at 407, see also Guo per Kirby J at 585).
It is the case that the assessment of whether an applicant has a
well-founded fear of being persecuted (for any of the Refugees Convention grounds) involves questions of degree, which requires the relevant decision maker to weigh the evidence put before them and to make findings upon which to base the consideration as to whether the fear is well-founded (Guo per the majority at 575).
If a finding is made without sufficient confidence, the decision maker would then need to consider the possibility that the finding is not correct in any determination of whether an applicant has a
well-founded fear (Guo per the majority at 576; see also Wu Shan Liang, Abebe).
In Guo the majority of the High Court said at 576:
“It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.”
As set out above, and further to the reference to MZXSA above (at [27]), the “What if I am wrong? test” was explained by the Full Federal Court in Rajalingam. See at 240 per Sackville J (with North J agreeing):
“…When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a ‘real substantial basis’ for the applicant's claimed fear of persecution…”
(See also, relevantly, per Kenny J at 255)
If there is no real doubt, however, then there is no obligation on the decision maker to consider whether the findings may be wrong (see Rajalingam per Sackville at 238 quoting the joint judgment in Guo at 576):
“In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”
The question for the Court now, therefore, is whether the assessors relevant reasoning and findings were attendant with such doubt as to have necessitated consideration of the “What if I am wrong? test.”
Before proceeding to the consideration of the assessor’s reasoning, it is important to note the following. Before the Court there was some discussion as to the relevant, or appropriate, point in the assessor’s consideration at which the level of satisfaction (as to a well-founded fear) becomes a relevant inquiry.
The Minister characterised the question as follows. Is it appropriate or requisite for, as in this case, the assessor to make a factual finding and then to determine whether she is satisfied, or not satisfied, as to a
well-founded fear, or does the matter of satisfaction arise at an earlier point in the process?
The Minister submitted that the assessor was under no obligation to expressly accept, or reject, the applicant’s claims. That is, it was sufficient for the assessor to simply be “not satisfied” that the relevant claimed events occurred. The Minister referred to VSAF at [17] per Black CJ, Sundberg and Bennett JJ:
“We are unable to agree with his Honour’s statement that "in the absence of findings as to the facts, either favourable or unfavourable to the [respondent], the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non-satisfaction": see [9]. As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant’s claims were at "such a general and vague level that the Tribunal cannot establish the relevant facts", and therefore had made no findings either accepting or rejecting the claims…”
Further, the Minister referred to Applicants A233 at [19] as being “correct” and applicable in the circumstances:
“…[T]he Tribunal’s reasons do not on their face suggest that the Tribunal had any real doubt about its findings. The mere fact that they are expressed in terms of a lack of satisfaction about certain events having occurred, and in terms of non-acceptance of those events having occurred, does not of itself indicate some lack of doubt on its part…”
It is the case, as the applicant urges, that the language of the High Court authorities (see for example Guo, Chan Yee Kin, Abebe and the like) is directed at least, to the following situations, after the making of findings of fact. First, if these finding are made absent doubt then it allows consideration by the decision maker of whether the requisite level of satisfaction as to whether a protection visa should be granted can be reached.
Second, if attendant with doubt, then this leads to the application of the “What if I am wrong? test”, which again leads to whether the level of satisfaction can be reached. However, the authorities relied on by the Minister make clear that findings of fact, either favourable, or unfavourable, are not necessarily a preliminary step in every case to the consideration of whether the level of satisfaction can be reached.
In my view, any perceived inconsistency between the two scenarios is illusory when regard is had to the circumstances to which each of the sets of authorities was directed. In my view, this can be illustrated with the distinction between two sets of different circumstances. First, where an applicant, for example, attends a hearing before the decision maker, gives evidence, and the decision maker makes findings of fact based on that evidence. Whether those findings are perceived to be adverse, or advantageous, to an applicant will determine whether the level of satisfaction in s.65 of the Act can be reached.
Second, where an applicant does not attend any hearing after invitation to do so, in circumstances where the applicant has been put on notice that the decision maker cannot make a favourable decision given the paucity of the information provided. Here, the insufficiency of information is such that the requisite level of satisfaction cannot be reached. This does not require any findings of fact about that information. In fact, the paucity of the information presented may render it difficult to make any such findings. Bearing in mind that the correct test is that arising from s.65 of the Act, no error is revealed if the decision maker cannot be satisfied (that the claimed fear is
well-founded) in these circumstances.In my respectful view, that is precisely what was meant in VSAF, where, in citing SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, the Full Court said at [17]:
“…[T]he Tribunal found that the applicant’s claims were at ‘such a general and vague level that the Tribunal cannot establish the relevant facts’, and therefore had made no findings either accepting or rejecting the claims…”
As the Federal Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] (per French, Emmett and Dowsett JJ), an applicant’s failure to participate in a hearing where the information provided lacks sufficiency, leads to the “inevitable consequence” of an adverse outcome on the visa application.
It is here that the Minister’s reliance on SZNOX provides clear direction and, in essence, resolves the dispute between the parties in ground one. At [18] Barker J said:
“…[I]t is for the applicant to provide evidence and argument sufficient to enable the decision-maker to establish the relevant facts: Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61. The decision-maker is not required to make out the applicant's case for him or her: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. There is then no obligation, or onus that governs the Tribunal's decision-making such that it may only make findings where it has no doubt, or that it must give the applicant ‘the benefit of the doubt’ when making findings…”
The applicant’s argument arising from what he says is a fair reading of the assessor’s reasoning leading up to [180] (at CB 379) (see [24] above) of the decision is as follows.
The assessor found that the applicant was not competent to give evidence ([163] at CB 376). The applicant made clear that his argument before the Court was not that the assessor should have made some further, or other, investigation in the circumstances presented. (No relevant alternative strategies were available to the assessor in the face of the applicant’s lack of competence, given, for example, the lack of any relatives in Australia, see further at [163] at CB 376).
What the applicant contended, however, was that the subsequent analysis by the assessor offended the legal principles in the authorities on which he relied. The applicant argued that his case was distinguishable from such cases as NAVX and VSAF, because a fair reading of the assessment as a whole demonstrated “real doubt”, including at [180] (at CB 379).
In his claims presented, variously, prior to the time of the assessment before the assessor, the applicant made claims as to the occurrence of certain events, or incidents, in the past in which he alleged mistreatment in Iran (“the 2005 incident” and “the 2010 incident” see [51] at CB 354 and [53] at CB 355)
It must be said that some strength is given to the applicant’s case before the Court when regard is had to parts of the assessment where the expressed language is one of qualification, and bordering on ambiguity. Noting, of course, that a fair reading of the assessment in light of Wu Shan Liang does not mean that any ambiguity can be excused or ignored (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 (“SZCBT”)).
In this regard, the applicant referred the Court to the following (applicant’s written submissions at [33]):
“The Assessor’s conclusion that she could not establish whether the claimed events occurred is supported by various statements demonstrating that she had real doubt that the claimed events did not occur. These are as follows:
(a) The Assessor noted that the applicant had given an explanation for stating in his entry interview that he had never been threatened, arrested or detained, but that she was unable to ‘explore’ this explanation with him. She states that given the applicant’s ‘inconsistent and contradictory’ evidence which she later sets out in the same paragraph, it ‘may mean’ that the applicant’s statement in his entry interview was reliable: CB 378 [176];
(b) The Assessor reasons that if the 2005 incident occurred, that it appears ‘unlikely’ that he would re-enter Iran from Greece, but qualifies this with the statement that, ‘it is not impossible’ that he would re-enter: CB 378 [177]; and
(b) Importantly, the Assessor noted that the STARTTS reports, ‘…did not shed light on whether the [applicant’s] interpretation of events while he was in Iran may have been distorted because off a pre-existing condition, or whether his mental health is now so poor that he is unable to clearly recall events in his past’: CB 379 [179]
[Emphasis in the original]
The applicant submitted, with particular although not exclusive, reference to [176] of the assessor’s record (at CB 378), that the language of doubt expressed there, and in relation to “the 2005 incident”, should inform the view of the assessor’s findings at [180] (at CB 379) and [200] (at CB 381). There the assessor found that, in considering the applicant’s claimed fear of the Iranian authorities, and claimed fear based on his religious views, she did not accept that “the 2005 incident” had occurred.
However, it is the case that the assessor’s reasons must be read as a whole. After dealing with the matter of the applicant’s competence ([163] at CB 376), the assessor set out the sources of the evidence and information before her ([164] at CB 376 to CB 377), and turned to the important question of the applicant’s nationality, or lack of nationality, and his religion ([165] at CB 377 to [173] at CB 378).
Then at [174] (at CB 378) the assessor described the applicant’s “primary concern” as to the harm feared. What follows at [175] ‑ [176] (at CB 378) (leading up to [180] (at CB 379), the impugned paragraph) reflects the assessor’s view of the character of the applicant’s claims in the context of the limited way in which they were presented.
The assessor’s various references to being “unable to establish with any confidence” ([175] at CB 378) and “unable to explore with him” ([176] at CB 378), inform her statement at [180] (at CB 379) that “…[h]is account is so lacking in detail that I am unable to establish if any of the above events, as described at various points, occurred in Iran.”
In my view, on a fair reading, this is not an expression of any doubt that the claimed events occurred. Rather, that the applicant’s various presentations of the claimed incidents, and the claims in themselves, were of such a character that they lacked detail, and substance, such that the assessor could not then proceed to reach the requisite level of satisfaction. That is plain with the words “so lacking in detail” at [180] (at CB 379).
In this sense, this case falls within the scenario, referred to above (at [44]), of an applicant who failed to attend at a hearing, or interview, to give substance to his claims resulting in “the inevitable consequence” of the inability by the decision maker to reach the requisite level of satisfaction pursuant to s.65 of the Act (NAVX). There is no doubt in the assessor’s findings that the applicant’s various presentations of his claims lacked detail. The applicant did not attend an interview before the assessor (see [97] at CB 361 to CB 362). While the assessor accepted the reason for this ([163] at CB 376), it still left her in the position of being confronted with an account that was “so lacking in detail”, and with no opportunity to question, or “interview”, the applicant with a view to seeing whether the claims could be enhanced or given substance.
These are not circumstances where the “What if I am wrong? test” is engaged. If there were “doubts”, these were in the manner of the applicant’s own various previous expressions of his claims, not the assessor’s view of the claims and their character.
I should also note that the view of the assessor’s reasoning which I have taken is also revealed with reference to [179] (at CB 379). Here, the assessor properly considered the possible effects of the applicant’s “mental illness” on the quality or character of the applicant’s claims, and their lack of detail.
The reference at [179] (at CB 379) to the alternative possibilities emanating from the STARTTS reports as to the timing of the commencement of the applicant’s mental illness and the impact it had on the presentation of his claims, underlines the approach taken by the assessor. That is, that the STARTTS assessment was of no assistance in explaining the deficient presentation by the applicant of his claims. What was left was that these claims, and the applicant’s “interpretation” of claimed relevant events, remained lacking in substance. This, again, is not an expression of doubt by the assessor as to any findings, but an expression of the inadequacy of a report submitted in support of the applicant’s case to explain the lack of details before the assessor, and the “unsatisfactory” nature of that case.
The applicant asserted, what he says was a “curious” feature in the assessor’s reasoning at [180] (at CB 379) (see above at [21]).
On its face what is stated in the first two sentences of [180] (at CB 379), when juxtaposed, could indeed be described as “curious” (see [18] above for the text of [180] at CB 379).
The first sentence is in my view plain. The assessor explains that the degree of the lack of detail in the applicant’s account of past events was such that she was unable to establish if they in fact occurred (in context, “the 2005 incident” and “the 2010 incident”). This simply underlines the view taken of the assessor’s analysis as set out above.
The second sentence, however, in light of this understanding of what the assessor meant is, as the applicant says, “curious”. The words “if they occurred at all” provide the basis for the applicant to argue before the Court that the assessor, in context of the first sentence, may have been seeking to engage the “What if I am wrong? test” in considering whether the events occurred for a Refugees Convention reason.
The Minister’s response was that, even if this is what the assessor was seeking to do, the finding that the events did not occur for a Refugees Convention reason, or without connection to the Refugees Convention, was sufficient to dispose of the applicant’s claims in relation to these events.
It is here, that what I respectfully understand from the High Court’s direction in such cases as Wu Shan Liang becomes important. A fair reading includes a holistic reading of the assessment and, in context in this case, both as to how the applicant’s claims were presented and the effect of that on the assessment.
In my view, a fair reading of [180] (at CB 379) is as follows. The applicant’s claims were lacking in detail and substance. When read with the rest of the assessment, the applicant’s lack of competence meant that his claims as at the time of assessment remained in this state of deficiency.
In light of this the assessor was unable to establish if any of the claimed events in the past (in context, this included specifically “the 2005 incident” and “the 2010 incident”) had in fact occurred. In relation to “the 2005 incident” specifically, the assessor could not accept that it had occurred given the paucity or deficiency, of what had been presented to her (this is linked to what is set out at [200] at CB 381.)
With specific reference to the second sentence in [180] (at CB 379), when read contextually, the assessor was saying (albeit clumsily) that in any event whether the events had occurred or not, did not matter because as presented (that is, in their unexplained state), they lacked any Refugees Convention nexus.
What is plainly implicit here is that, without any such nexus the applicant’s claims cannot fall within the Article 1A(2) definition of a “refugee” in the Refugees Convention. In my view the assessor was not seeking to employ the “What if I am wrong? test” (as now suggested in the alternative by the applicant), but expressing a finding that the claims, in their “deficient” state of presentation, did not rise to the requisite level of satisfaction (in the first sentence such that it could be said they had occurred, and in the second sentence, additionally, that they had a Refugees Convention nexus) such that the real chance test was met and that protection must be given to the applicant.
When understood in this light, the rest of applicant’s arguments on this ground before the Court are not made out. I note also [37] of the applicant’s written submissions. There he argued that the alleged facts underpinning “the 2005 incident” engaged the Refugees Convention ground of religious persecution. Therefore, if the assessor had accepted that such events, including “the 2010 incident”, had occurred, (which in the case of “the 2005 incident” she expressly did not) then it would follow that the assessor was bound to find that they had occurred for a Refugees Convention reason.
The mere fact that, for example in relation to “the 2005 incident”, the assessor made clear that she did not accept that it had occurred (at [200] at CB 381), reveals that the real thrust of the applicant’s argument in this regard is to argue for impermissible merits review by the Court (Wu Shan Liang).
Further, the Minister’s response to the applicant’s argument that the applicant relied on “one contingency upon another” to make his argument, may be accepted. In any event, the applicant’s argument is based on, or begins with, a reading of the assessor’s reasoning at [180] (at CB 379) which is not available on a fair reading. Whatever structure of contingencies the applicant attempts to build in this regard is not based on a solid foundation. Ground one is not made out.
Ground Two: Consideration
Ground two fails for the same reason as the basis for the failure of ground one. It is premised on the same reading of the assessor’s assessment record. The applicant asserts that the assessor fell into legal error because there was no evidence to support the finding that the claimed events did not occur for a Refugees Convention reason.
When viewed in light of what is set out above, in relation to the assessor’s reasoning, the deficiency in the applicant’s ground is the misconception of the nature of the assessor’s approach to the claimed events.
This misconception again failed to acknowledge that what sat at the core of the assessor’s reasoning was the character of the applicant’s claims as, variously, presented. As stated above, the lack of detail, and the like, in the claims meant the assessor could not reach the requisite level of satisfaction to say that the applicant had a well-founded fear of persecution for a Refugees Convention reason, and thus engage Australia’s protection.
As the Minister submitted there is a clear distinction to be drawn at [180] (at CB 379). That is, between a positive finding that an event occurred, or did not occur, on the one hand, and a “finding” or conclusion that the assessor was unable to establish on the evidence before her, and in light of the nature of that evidence, that the events had, or had not, occurred. That inability meant that the requisite level of satisfaction even in the context of a Refugees Convention nexus could not be reached.
In that sense, the evidence before the assessor leading to her ultimate conclusion was the applicant’s own “evidence”, given in the various accounts by him, and on his behalf, leading up to what was put before the assessor.
In any event, the applicant’s ground is expressed as a “no evidence” ground. As the Minister submits, with reference to relevant authority, this ground of review has no application in the circumstances where the basis of the assessor’s conclusion is a finding of a lack of the requisite satisfaction (WAJS v Minister for Immigration [2004] FCAFC 139 at [12] ‑ [13] per Wilcox, Marshall and Jacobson JJ; NAVK v Minister for Immigration [2005] FCAFC 124 at [32] ‑ [34] per Nicholson and Edmonds JJ).
At its core the assessor’s conclusion, when the assessment is read fairly, was that given the nature of that evidence (the claims as made and presented) she was unable to reach the requisite level of satisfaction in the applicant’s favour. Ground two is not made out.
Ground Three
Ground three asserts jurisdictional error in the way the assessor dealt with the applicant’s claims as they related to the concept of “complementary protection”. The assessor’s relevant consideration is as follows ([215] at CB 383 to [221] at CB 384):
“[215] I have noted above that, if a person is found not to meet the refugee criterion in s 36(2)(a), he may nevertheless meet the criteria for the grant of the visa if there are substantial ground for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm: s36(2)(aa).
[216] The term ‘receiving country’, where the applicant is not a national of that country,, is the country of which the applicant ‘is an habitual resident’. According to the claimant’s own evidence, there is no record of his having been in Iran since 2006, as he was in Greece for 3½ years, and when he returned to Iran in 2010 it was without the knowledge of the authorities and was for a period of only three months. His white card, the only official record of his presence in Iran, expired in some six years ago. I am not persuaded that Iran could be recognised as a country of which he ‘is’ an habitual resident.
[217] I also rely on the 2011 advice from the DIAC (DIAC Returns and Removals Section 2011) which states that no country is able to effect involuntary removals to Iran, except in the event that the client has a valid travel document such as a passport. The claimant has consistently expressed his unwillingness to return to Iran and, if he were to be removed from Australia, I am satisfied he would fall into the category of an ‘involuntary removal’. Further, as has been accepted by the Delegate, the claimant has no passport or other travel document in his possession. I accept that he is not eligible for an Iranian passport because he is not a national of Iran. Therefore he falls squarely into the category of persons who, according to the most recent available evidence, would be refused entry by the Iranian authorities.
[218] I therefore do not consider that Iran could be defined as a ‘receiving country’ for the purposes of s36(2)(aa) and am satisfied that there is no country that could be defined as a ‘receiving country’ in the claimant’s case.
[219] However I have also considered if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed from Australia to Iran, there is a real risk that he will suffer significant harm.
[220] S 36(2A): s 5(1) defines significant harm. For the reasons given above, I find there are no substantial grounds for believing that the claimant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or he will be subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment as defined in s 5(1) of the Act.
[221] I therefore find that he does not satisfy the criteria in s 36(2)(aa).
[Emphasis added – see [90] below]
As the applicant submits, s.36(2)(aa) of the Act prescribes the criterion for complementary protection (as it relates to a protection visa), noting in this case that the assessor was tasked to provide an assessment to the Minister as to whether the applicant met the criteria for a protection visa as set out at s.36(2) of the Act (see CB 348).
The statutory provisions relevant to the applicant’s ground are as follows.
Section 36(2)(aa) is in the following terms:
“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;”
Section 36(2A) defines “significant harm”:
“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.”
Relevant terms used in s.36(2A) and s.36(2)(aa) are defined in s.5(1) of the Act:
“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.
…
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;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non‑citizen, means:
(a) a country of which the non‑citizen is a national; or
(b) if the non‑citizen has no country of nationality—the country of which the non‑citizen is an habitual resident;
to be determined solely by reference to the law of the relevant country”
[Emphasis added]
The applicant’s ground requires focus on two areas of concern. The first does not assist the applicant. The second does reveal jurisdictional error such that the applicant should be given the relief he seeks (see [104]-[125] below).
Ground Three: First Issue
The applicant submitted that the assessor found that there were no substantial grounds for believing the applicant would face “significant harm” “for the reasons given above” ([220] at CB 384). He said this must refer to the balance of the assessment (see [220] (at CB 384) of the assessor’s assessment record reproduced at [83] above).
In these circumstances the applicant submits this case is analogous to what was found in SZSFK v Minister for Immigration & Anor [2013] FCCA 7 (“SZSFK”) at [97] (per Judge Driver). In that case the Court found that a reference to unspecified “findings set out above” was “particularly problematic” because, in essence, it sought to import matters into the consideration of complementary protection which were irrelevant to it. That is, findings in relation to the Refugees Convention and made in that context.
The applicant said that in the current case it was necessary for the assessor to engage the language of s.36(2)(aa) of the Act and to consider the evidence relevant to that provision. That is, to identify those parts of the applicant’s account that were relevant to the question as to whether he would face “significant harm”, as opposed to “serious harm”.
The applicant submitted that this error can be shown with reference to the factual matters before the assessor. First, the assessor accepted that because the applicant was an “undocumented Faili Kurd” he would have to pay, relevantly given his condition, for psychiatric and medical care if he returned to Iran. Second, in the circumstances where the assessor found that it was “likely” that the applicant “may be unable to find sustainable employment as a result of poor mental health and so he would be unable to subsist in Iran” ([212] at CB 383).
The argument was that both these matters were specifically considered in the context of “persecution” (with reference to the Refugees Convention), not in relation to complementary protection and whether these matters could amount to “significant harm” for the purposes of s.36(2)(aa) of the Act.
The applicant asserted that the assessor either misunderstood or misapplied the relevant test as to the complementary protection criterion for the grant of the protection visa, evidenced by the assessor’s use of the words “…For the reasons given above…” as they appear in [220] (at CB 384) of the assessment record (see [83] above).
The argument was that these words made reference to the entirety of the assessment record preceding [220] (at CB 384). That is, that the assessor imported findings in the context of the Refugees Convention into the findings relating to complementary protection and that revealed that the assessor failed to understand the difference between the two tests.
In my view, the assessor in the current case was aware of the different tests as between the Refugees Convention criterion (s.36(2)(a) of the Act) and the complementary protection criterion (s.36(2)(aa) of the Act). This distinction was set out in unexceptional terms in the assessment record (see at [6] at CB 349 to [14] at CB 350 and [15] at CB 350 to [17] at CB 351). Further, the assessor made specific references to the different tests and the distinction between the two in her analysis (see [215] at CB 383 and above at [83]).
As stated above, the applicant relies on SZSFK (per Judge Driver) (particularly at [92] – [97]). In essence, I respectfully understand that Judge Driver found in that case that the relevant decision maker, in considering the complementary protection criterion did not separately assess relevant factual findings as against the complementary protection criterion but relied only on factual findings made in relation to the Refugees Convention and used concepts relevant to that Convention. This situation allowed the Court, in SZSFK, to draw an inference that the decision maker misunderstood the relevant tests.
The Minister sought to distinguish the circumstances in this case to those in SZSFK and referred to what was found in SZRZN v Minister for Immigration & Anor [2013] FCCA 510 (per Judge Raphael). In that case the Court distinguished the situation in SZSFK on the basis that the “failure” of the Tribunal was “more one of form than one substance” because the Tribunal had been left “in little doubt” that the claimed harm would not occur on return to the receiving country (SZRZN at [27] per Judge Raphael).
Ground Three: Second Issue
The applicant’s second area of concern arises from the argument that the assessor’s finding that Iran was not a “receiving country” for the purpose of s.36(2)(aa) of the Act, and that there was no receiving country at all in the circumstances of this case, was not made in accordance with the law.
The definition of “receiving country” (as set out at s.5(1) of the Act) is set out above at [88]. What must immediately be said is that the meaning of the term “receiving country”, with reference to any particular case must be “determined solely by reference to the law of the relevant country”.
Ground Three: Consideration
I agree with the applicant that the assessor did not find the receiving country as required by s.5(1) of the Act in this case. In her analysis, the assessor made no reference to any relevant law of Iran to determine, for the purposes of whether Iran was a “receiving country”, whether the applicant was a national of Iran or if he was an “habitual resident” of Iran. Even if there was no such relevant law, there is nothing in the actual assessment to show that the assessor turned her mind to this statutory requirement.
What the assessor referred to in making the relevant determination was the applicant’s own evidence and the matter of his expired identity (“white”) card ([216] at CB 383).
Further, the assessment record does, under the heading of “Country Information” ([112] at CB 363) make reference to “Iranian nationality” ([136] at CB 369). Two things may be said about this. First, there is nothing in the subsequent analysis to show that the assessor made her determination in relation to the law of the “receiving country” with reference to this information, let alone that the determination was made having regard, solely, to it. In relation to “habitual resident”, there does not to appear to be any relevant law cited in the “country information” section.
Before the Court, the applicant tendered the relevant part of the Immigration Department’s Procedures Advice Manual (third edition) (“PAM3”). The purpose was to show that the applicant’s submission as to how the assessor should have approached this question was consistent with the Immigration Department’s advice as to how the assessor should have proceeded and the relevant legal test to be applied. In my view, the Minister’s own policy advice appears to support the applicant’s position on this issue before the Court.
There was no dispute before the Court from the Minister that the definition of “receiving country” required any such determination to be done solely with reference to, in this case, the law of Iran. The point of departure between the parties was that the Minister disagreed with the applicant that that meant that the Tribunal was required to identify “a” (specific) relevant law of Iran.
The Minister submitted that a fair reading of [216] of the assessor’s record (at CB 383), is that the assessor had regard to the legal position in Iran. This submission was that what is set out at [127] (at CB 367) to [135] (at CB 369) of the assessor’s record supports this view. That is, these paragraphs (under the heading of “Country Information” – “Refugee Identification Cards”) made reference to the legal position in Iran of the “white card system”, and this satisfied the legislative definition.
The Minister submitted that the assessor’s reasoning was that, given that the applicant did not have a valid white card, which was the relevant identity card for non-residents of Iran, and given that he lived in Iran “recently” without the knowledge of the authorities, this was tantamount to a finding that he was living there “unlawfully”.
Further, the Minister submitted that even if error were found the Court should not in any event grant the relief the applicant sought because the legal error had no effect on the outcome. This was said to be because the assessor also made a finding that even if Iran was the relevant receiving country, there were no substantial grounds for believing that the applicant would suffer significant harm there. This submission plainly relied on what the assessor said at [220] (at CB 384) (see [83] above).
What must immediately be restated is that it is indeed the case that such assessment records are to be read fairly (Wu Shan Liang). But such a reading is not meant to excuse ambiguities or to infer what is simply not there (SZCBT).
The assessor’s reasoning in relation to the Refugee Convention was clear and consistent with relevant legal principles. It stands in contrast to that part of the assessment dealing with complementary protection. In my view that latter part of the analysis cannot relevantly be described as being even ambiguous as to whether the relevant determination was made solely with reference to the law of Iran. It is clear that even on a fair reading the assessor did not have regard to the law of Iran, and further, sole regard, as is required by law.
The assessor fell into an error of law in her failure to properly understand and apply the law in this regard.
I attempted to give some coherence to the logic of the assessor’s analysis under the heading of “Complementary Protection” (see below at [115]). But even on that basis, I am unable to accept the Minister’s submissions that the matters raised by the applicant could never amount to “significant harm” as set out at s.36(2A) of the Act. The Minister referred the payment for medical expenses and the inability to attain employment and submitted these could “never” amount to significant harm under the definition in s.36(2A).
In my view, this is speculation. While the circumstances where such matters may amount to cruel, inhuman or degrading treatment or punishment may be few, they need to be determined with actual reference to an applicant’s circumstances, and not in the abstract. Nor is such an assessment for the Court to make. It is trite to say that any such assessment sits at the heart of, as here, the assessor’s task.
It is here that the words “…For the reasons given above…”, as they appear at [220] (at CB 384) assume significance. If the assessor was referring only to what immediately preceded it under the heading of “Complementary Protection”, as in my view she was, then no assistance is rendered to the Minister’s position.
If it is a reference to all that precedes it, that is, including the factual analysis of the applicant’s claims under the Refugee Convention, then it stands squarely in support of the applicant, and the authority of SZSFK (see below at [120]).
The assessor’s factual findings in relation to “the 2005 incident” and “the 2010 incident” do not assist the Minister here. The two matters raised by the applicant before the Court in this regard stand apart.
First, the assessor’s reasoning in relation to the payment for health care was entirely based on whether such requirement for payment for health care amounted to “serious harm” (as at [191] – [192] at CB 380). Similarly, as to whether his mental health would “increase” the risk that he would be targeted for “persecution” ([212] – [213] at CB 383).
Second, if the words “…For the reasons given above…” are meant to include the reasoning at [191] – [192] (at CB 380) and [212] – [213] (at CB 383), then the plain meaning and consequence of these words is to say that because these matters did not rise to reveal the likelihood of “persecution”, or “serious harm”, then they do not reveal “significant harm”.
This is the very error which Judge Driver found in SZSFK. That is, there was no attempt to distinguish the different tests posed by s.36(2)(a) and s.36(2)(aa) of the Act (see SZSFK at [90]) (“serious harm” and “significant harm”)
Conclusion
It is appropriate in this case that the applicant be granted the relief he seeks. For the reasons set out immediately above, I am not persuaded that what is set out at [220] (at CB 384) of the assessor’s record means that the legal error identified had no effect on the outcome. I will make the orders accordingly.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 31 October 2013
CORRECTIONS:
The catchwords were corrected by replacing “Tribunal” with “reviewer”.
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