FEDERAL COURT OF AUSTRALIA

DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any such agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant is a citizen of Nepal. On 31 July 2014, she made an application under the Migration Act 1958 (Cth) (the “Act”) for a protection (class XA) visa (the “Visa Application”). It did not succeed: by a decision dated 27 January 2015, a delegate of the first respondent (the “Minister”) refused to grant the Visa Application (the “Delegate’s Decision”).

2    On 17 February 2015, the appellant applied to the Refugee Review Tribunal (the functions of which have since been assumed by the Administrative Appeals Tribunal—the “Tribunal”) for review of the Delegate’s Decision. That application (the “Review Application”) also failed: by a decision dated 20 October 2016 (the “Tribunal’s Decision”), the Tribunal affirmed the Delegate’s Decision.

3    By an application dated 15 November 2016 (and subsequently amended on 27 September 2018), the appellant applied to the Federal Circuit Court of Australia (the “FCCA”) for judicial review of the Tribunal’s Decision (the “Judicial Review Application”). On 4 February 2019, the FCCA dismissed that application with costs: DKT16 v Minister for Immigration & Anor [2019] FCCA 170 (the “FCCA Judgment”).

4    By a notice of appeal filed in this Court on 25 February 2019, the appellant appeals from the FCCA Judgment. She asks that the orders made by the FCCA consequent upon that judgment be set aside; and that, in their place, this Court grant writs of certiorari and mandamus to quash the Tribunal Decision and require that the Tribunal determine the Review Application according to law. She also seeks orders that the Minister pay her costs of and incidental to both the appeal and the Judicial Review Application. The appellant prosecutes (or, in one case, seeks to prosecute) two appeal grounds to that end, the particulars of which are explored below.

5    For the reasons that follow, neither of the two grounds that the appellant identifies in this appeal is made out. The appeal will be dismissed with costs.

The Visa Application

6    The appellant arrived in Australia on 19 July 2014 on a tourist visa. Less than a fortnight later, she lodged her Visa Application, by which she claimed to satisfy one or both of the criteria for which ss 36(2)(a) and 36(2)(aa) of the Act then provided. In summary form, the Visa Application contended that the appellant should be granted a protection visa either because she qualified as a refugee under Art 1A(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, or because she was otherwise owed what are often referred to as obligations of complementary protection (in particular because, so she claimed, she would be at real risk of subjection to significant harm if she returned to Nepal).

7    The claims for protection advanced by means of the appellant’s Visa Application focused heavily upon the fact that she is an HIV-positive widow. She was diagnosed with HIV in 2005. Her late husband, who was also an HIV sufferer, died in 2007. By her Visa Application (and the submissions that she advanced in support of it, before both the Minister’s delegate and, later, the Tribunal), the appellant explained that:

(1)    prior to leaving Nepal, she had been receiving retroviral treatment in her home town of Pokhara (and, on occasion, in Kathmandu), and had been since approximately 2008;

(2)    prior to coming to Australia, she held a job as a social worker, working with HIV sufferers—a position that she had held since 2003;

(3)    she has family—including parents, siblings and two adult children—who remain in Nepal;

(4)    because of her HIV status, her family does not support her;

(5)    following an earthquake in April 2015, her parents’ home—at which her children lived at the time—was destroyed and they were forced to take up residence in a tent;

(6)    her late husband’s family blames her for his death;

(7)    her HIV status is widely known amongst her community, which reflected in her subjection in Nepal to various forms of differential treatment, including having things thrown at her when she went out;

(8)    HIV-positive women in Nepal are particularly vulnerable to various forms of violence—including physical and sexual violence—and are often subjected to comparatively poor treatment in Nepalese hospitals;

(9)    despite legislative intervention to the contrary (which has not been effective or enforced), Nepalese society does not “accept” HIV sufferers—they are subjected to widespread discriminatory practices on account of their condition, including social, physical and vocational exclusion;

(10)    Nepalese society looks unfavourably upon widows; and

(11)    in consequence of those realities, her relocation to another part of Nepal would not assist her in avoiding the social stigma that attaches to HIV sufferers and widows.

The Tribunal’s Decision

8    At [13]-[16] of the FCCA Judgment, the FCCA summarised the Tribunal’s Decision as follows (references omitted):

13.     The Tribunal commenced by accepting that the [appellant] is a citizen of Nepal and HIV positive. The Tribunal found, in paragraph 39 of the [Tribunal’s Decision], that the [appellant] has not suffered discrimination or difficulties in obtaining treatment for her HIV in Nepal. The Tribunal found further, in paragraph 40 of the [Tribunal’s Decision], that in light of the [appellant]’s own evidence, she had faced no difficulties at work in relation to her HIV status. The Tribunal acknowledged:-

“that those with HIV can suffer discrimination in work in Nepal, according to independent evidence. However, the nature of the [appellant]’s job, providing support services to those with HIV, results in this being an environment where discrimination is not faced by her.”

14.     The Tribunal then proceeded to make adverse credibility findings against the [appellant] stating, prior to the making of those findings, that it considered that the [appellant] had “embellished and exaggerated claims of discrimination, and of knowledge by others of her HIV status” and, in relation to one “tangential claim”, that the [appellant] had “been blatantly untruthful”. The adverse credit findings made by the Tribunal are set out in paragraphs 41 to 62 of the [Tribunal’s Decision]. It is not necessary here in these reasons to further set out those findings when having regard to the sole ground of judicial review raised by the [appellant]. Rather, it is [sufficient] to state here the conclusion as to the [appellant]’s evidence reached by the Tribunal as set out in paragraphs 63 and 64 of the [Tribunal’s Decision] which is as follows:-

“63. The [appellant]’s evidence has been characterised by untruthfulness, inconsistency, confusion and vagueness. There is a deliberate untruth in relation to the [appellant]’s [parents’] home being damaged [sic] the earthquake. There is inconsistent evidence as to whether the [appellant]’s parents know of her HIV status and contradicting claims as to whether they support her, or have evicted her from the home. There is significant inconsistency, confusion and vagueness as to the extent the others know of the [appellant]’s HIV status.

64. The credibility issues identified cause the Tribunal to consider that the [appellant] has embellished and exaggerated claims of family or other mistreatment and of knowledge by others of her HIV status.”

15.     Based on the credibility issues that arose for the Tribunal, the Tribunal stated in paragraphs 66 to 71 of the [Tribunal’s Decision] the following:-

“66. The Tribunal is of the view that the [appellant]’s parents likely know of her HIV status but the Tribunal considers that they maintain their support for the [appellant]. The Tribunal does not consider it plausible that there could be suspicion or knowledge of the [appellant]’s HIV status in her small home village and that members of the [appellant]’s own family would not be aware of this.

67. The Tribunal is not satisfied that the [appellant] has been rejected by her parents or evicted from the family home due to her HIV status.

68. While the Tribunal has some doubts as to the extent that the [appellant]’s HIV status is widely known, the Tribunal is prepared to accept that there is some dissemination of this information, both in her home village, and in Pokhara.

69. The Tribunal is prepared to accept that there has been some degree of discrimination and adverse treatment by some individuals towards the [appellant] as a result of knowledge or suspicion of her HIV status both in Pokhara [and] in her home village. However, the Tribunal considers that there has been embellishment and exaggeration by the [appellant] in relation to this, given the cumulative impact of the credibility concerns identified.

70. The Tribunal does not consider that the [appellant] has been subject to physical attack. The Tribunal is not satisfied that the [appellant] is unable to buy goods as a result of her HIV status or that she is unable to rent property. The latter is inconsistent with the [appellant]’s evidence that she rented a property in Pokhara, and the Tribunal considers that she would be less of a focus and target in this larger city.

71. The Tribunal does not accept that the [appellant] was forced out of her family home in her village or out of her home in Pokhara due to knowledge of her HIV status, given the inconsistencies in relation to these claims in the Tribunal hearing and the fact that these claims were not made as part of the original application.

72. In relation to the [appellant]’s home village, the fact that the [appellant] has remained living in her home village, for at least half the time, from her diagnosis in 2007 until coming to Australia in 2014 is consistent with discriminatory treatment of a moderate level only and not to an extent that it has constituted serious or significant harm. If the [appellant] had been subject to sustained and extreme discriminatory treatment, the Tribunal considers that she would have moved permanently to Pokhara, where her employer was based. Pokhara is the second largest city in Nepal with a population of more than 340,000 people.

73. While the Tribunal is prepared to accept that there [may be] some individuals who know of the [appellant]’s HIV status in Pokhara, and that there has been some discriminatory treatment, the Tribunal [sic] not satisfied that it has been extreme or sustained in Pokhara such that it has constituted serious or significant harm. In the bigger city of Pokhara, the Tribunal considers that the risk of discriminatory treatment is likely to be less than in the [appellant]’s home.”

16.     The Tribunal said further in paragraph 78 of the [Tribunal’s Decision] the following:-

“While the Tribunal is prepared to accept that there may be some degree of discrimination, negative verbal comments, and a lack of understanding from individuals either in Pokhara or her home village, who know or suspect as to the [appellant]’s HIV status, the Tribunal is not satisfied that the [appellant] would be subject to physical mistreatment, or discriminatory treatment that would be extreme or sustained such that it would constitute serious harm for the purpose of the Refugees Convention criterion, or constitute extreme humiliation, for the purpose of the complementary protection criterion (in terms of whether the [appellant] would face degrading treatment or punishment as a defined category of significant harm). The Tribunal is not satisfied that the [appellant] would be at a real risk of significant harm on any other grounds.”

We adopt that summary as a relevant and fair reflection of the Tribunal’s Decision.

9    There are additional passages from the Tribunal’s Decision that assume potential relevance to the present appeal. At [80] and following, the Tribunal considered the significance of the appellant being a widow. It made the following observations:

80.     The Tribunal explored with the [appellant] in the hearing the more recent claim by the [appellant]’s adviser that she faces harm on the basis of being a widow, and why the [appellant] fears harm on this basis. The [appellant] referred to the treatment by [her] husband’s family after her husband died. The [appellant] indicated that she is no longer in contact with her husband’s family.

81.     While the Tribunal accepts that this treatment by her husband’s family would be very distressing to the [appellant], given that the relationship with his family has ended, and that his family live in another village, away from the [appellant]’s home village or Pokhara, the Tribunal does not consider that this past treatment of the [appellant] results in a real chance of the [appellant] facing serious or significant harm in the future.

82.     The Tribunal does accept that being a widow in Nepal in itself can attract stigma and discrimination. However, the only specific difficulty the [appellant] voiced in this respect was the treatment by her husband’s family after her husband died. For the reasons indicated, the Tribunal does not consider that this creates an ongoing risk of harm to the [appellant]. In considering the risk of harm to the [appellant] based on being a widow, the Tribunal notes the fact that the [appellant] has the financial and other support of her parents and siblings, and their families. She has been employed in a stable job for many years which demonstrates that the [appellant] is employable, and giving her the capacity to support herself, combined with the support that is available from her family, and her husband’s pension.

83.     Given these factors, and given that the [appellant] has articulated no basis, other than the past treatment by her husband’s family, on which she faces harm due to being a widow, the Tribunal is not satisfied that there is a real chance of the [appellant] facing serious or significant harm on the basis of being a widow.

84.     The Tribunal considers cumulatively the fact that the [appellant] is HIV positive and that she is a widow. The Tribunal accepts that there is independent evidence indicating that the combination of these factors can compound the risk of harm. However, other than the adverse treatment by her husband’s family, the [appellant] has not articulated that being a widow has exacerbated her issues due to being HIV positive. The Tribunal is not satisfied, cumulatively, that the [appellant] faces a real chance of serious or significant harm based on being a widow and HIV positive.

10    The observations outlined above ultimately led the Tribunal to affirm the Delegate’s Decision. At [86] of its decision, the Tribunal stated that it was “…not satisfied that the [appellant had] a well-founded fear of being persecuted as a result of mistreatment or discrimination due to being HIV positive, [due to] inferior health care, or due to being a widow, or for any other reason.” At [87], it stated that it was “…not satisfied that there [were] substantial grounds for believing that, as a necessary and foreseeable consequence of the [appellant] being removed from Australia to Nepal, there [was] a real risk that the [appellant would] suffer significant harm as a result of mistreatment or discrimination due to being HIV positive, [due to] inferior health care, or due to being a widow, or for any other reason.” In the absence of satisfaction on those fronts, the Tribunal was not satisfied that the appellant met either of the criteria for which ss 36(2)(a) and (aa) of the Act provided.

The FCCA judgment and the present appeal

11    By her Judicial Review Application in the FCCA, the appellant alleged that the Tribunal’s Decision was the product of jurisdictional error because the Tribunal had adopted “…an erroneous test of significant harm under s 36(2A)(e) of the [Act] by requiring that degrading treatment must be alternatively ‘sustained and discriminatory treatment’ [72] or ‘extreme humiliation’ [78]”. The FCCA did not accept that the Tribunal’s Decision was tainted by jurisdictional error as alleged.

12    By her notice of appeal to this Court, the appellant sought to agitate three appeal grounds, namely:

1.     [Her] Honour erred in not acknowledging the difficulties faced by the [a]ppellant as a sufferer of HIV, in addition to being a widow.

2.    [Her] Honour erred by not finding that the [s]econd [r]espondent made error in claiming that the [a]ppellant ‘embellished and exaggerated claims’ and also the [a]ppellant’s evidence was characterised by ‘untruthfulness’ and ‘vagueness’.

3.     At [25] [her] Honour failed to find that the [s]econd [r]espondent made error of law and jurisdiction by expressing “degrading treatment” as “extreme humiliation”.

13    The second ground was later abandoned. The third amounts to a refined restatement of the single ground upon which the Judicial Review Application in the FCCA was founded. The first seeks to agitate a new point that was not advanced before the FCCA.

14    It is not necessary to here explore the reasons for the FCCA Judgment. The point inherent in the appellant’s first ground of appeal is a new one; there is, then, nothing in the FCCA’s reasons that touches upon that new contention. By the appellant’s third ground of appeal, it is said that the FCCA erred by not accepting that the Tribunal was led into jurisdictional error insofar as it equated “degrading treatment” with “extreme humiliation”. If it is the case that the Tribunal’s Decision was not tainted by that species of jurisdictional error, then the FCCA will have been correct to have so decided and the appeal ground will fail; if it was so tainted, then the FCCA will have erred and the ground will succeed.

15    Either way—and in respect of both grounds—it is upon the Tribunal’s Decision that our attention must focus.

Statutory framework

16    Before turning to the two appeal grounds, it is convenient to set out the applicable statutory provisions upon which the appeal turns.

17    Section 36 of the Act (as it stood at the time of the appellant’s Visa Application) provided, amongst other things, two alternative criteria that the appellant needed to satisfy in order to qualify (or potentially qualify) for a protection visa, specifically:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

18    Subsection 36(2A) defined (and still defines) “significant harm” as follows:

(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.

19    It is the final paragraph in s 36(2A) that assumes relevance to this appeal: in particular, the concept of “degrading treatment or punishment”. That concept was (and still is) defined by s 5(1) of the Act as follows:

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.

20    Section 65 of the Act conferred upon the Minister (via his delegate) a power to determine the appellant’s Visa Application. That determination qualified as a “[decision] reviewable by [the] Refugee Review Tribunal” within the meaning attributed to that phrase by s 411 of the Act (as it stood at the relevant time). Part 7 of the Act provided (and still provides) for a framework by which such decisions could (and can) be reviewed by the Tribunal (or its predecessor). Amongst other things, the Tribunal was, upon receipt of a valid application, empowered (and required) to review the Delegate’s Decision (the Act, s 414(1)); and, thereby, to exercise the same powers and discretions as were conferred upon the Minister under s 65 of the Act (the Act, s 415(1)). It was by way of exercise of those powers that the Tribunal’s Decision was made.

21    By application of s 474(2) of the Act, the Tribunal’s Decision qualified as a “privative clause decision”. By s 5(1) of the Act, such decisions fell (and continue to fall) within a broader definition of “migration decisions”. Section 476(1) conferred (and still confers) upon the FCCA “…the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. It was by that conferral of jurisdiction that the FCCA was empowered to hear and determine the appellant’s Judicial Review Application.

22    This Court’s powers on appeal are not in question and need not be set out here.

Ground 1: the appellant’s status as aN HIV-POSITIVE widow

23    Intending no criticism of its author, the appellant’s notice of appeal was somewhat skeletal. By the written and oral submissions advanced on her behalf, some flesh was added to those bones. Sensibly, if we may say so, no objection was raised in opposition to that course.

24    By her written submissions, then, the appellant summarised her first ground of appeal as follows, namely that the Tribunal:

…erred by failing to consider the cumulative risk of harm faced by the [a]ppellant, in that the [Tribunal] failed to consider the [a]ppellant’s risk of harm upon return to Nepal on the basis of her status as a widow who is also HIV positive.

25    The appellant’s complaint is that the Tribunal considered the risks that she faced upon return to Nepal as a widow and as an HIV sufferer; but not the risks that she faced cumulatively as an HIV-suffering widow. As is stated above, the point inherent in the appellant’s first ground of appeal was not agitated before the FCCA. The appellant requires leave in order to prosecute it on appeal.

26    Generally speaking, permission to agitate on appeal a point not taken at trial will only be granted “…where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy”: Summers v Repatriation Commission (2015) 230 FCR 179, 207 [94] (Kenny, Murphy and Beach JJ).

27    In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (Kiefel, Weinberg and Stone JJ), the Full Court said as follows (at 598-599 [46]-[48]):

Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

28    The appellant submits that the proposed appeal ground involves a point that has merit—indeed, one that, she says, should result in the appeal being upheld. Although not touched upon in terms in her submissions, it was apparent that the reason that the appellant advanced as to why the point wasn’t taken in the FCCA was because it wasn’t until counsel who appeared before us was briefed that it was conceived (or, at least, considered worthy of prosecuting).

29    The Minister opposes the amendment of the notice of appeal on the bases that the point that is sought to be advanced is without merit and the explanation as to why it was not previously taken is not one that might ordinarily warrant a grant of leave at this juncture. For reasons to which we shall shortly come, the Minister suggests that the point was not raised before the FCCA not because it had yet to be devised but because a forensic decision was made not to raise it.

30    Leave to raise the first appeal ground should not be granted. There are two reasons for why that is so.

31    First, we are not persuaded that an adequate explanation has been given for why the point was not advanced before the FCCA. The fact that the appellant retained new counsel for her appeal is not, of itself, sufficient: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176, [31] (Moshinsky, Steward and Wheelahan JJ); CSZ15 v Minister for Immigration and Border Protection [2017] FCA 706, [11] (Davies J). Moreover, we accept the submission of the Minister that the non-agitation of the point before the FCCA appears to be more the product of strategic deliberation than oversight. By her original Judicial Review Application, the appellant sought to impugn the Tribunal’s Decision as the product of jurisdictional error in that the Tribunal was said to have failed to “…take into account relevant considerations”. The particulars to that ground identified what those considerations were said to be. One of them was that the Tribunal had “…failed to consider that [the appellant had] been deprived of her life, as she [could not] live a normal life due to the adverse treatment she [faced] from [Nepalese society] due to her HIV status and being [a] widow.” Although not identical to the ground now sought to be advanced, the similarity between the two is unmistakable. By the time that the Judicial Review Application came to be heard, the appellant had abandoned that ground. She can only sensibly be understood to have done so deliberately; which in the absence of any exceptional circumstance (or circumstances), strongly militates against the grant of leave now sought: Singh v Minister for Immigration and Border Protection and Another (2018) 261 FCR 556, 574 [61] (Griffiths and Moshinsky JJ, with whom Bromberg J agreed on this point of principle); Li Pei Ye v Crown Limited [2004] FCAFC 8, [79] (Sackville, Selway and Lander JJ); SZWCO v Minister for Immigration and Border Protection [2016] FCA 51, [38] (Wigney J).

32    Second and more significantly, the first appeal ground lacks sufficient merit to warrant the grant of leave that is sought. It is not the case that the Tribunal considered the risks of harm to which the appellant claimed that she was subject on account of being, respectively, HIV-positive and a widow; but not those that arose cumulatively by reason of her being an HIV-positive widow. In our view, the Tribunal properly considered all of those alleged risks, in all of the combinations in which they were advanced. As much is clear from [84] of the Tribunal’s Decision (above, [9]).

33    We decline to grant the appellant leave to advance ground 1 of her notice of appeal.

Ground 3: alleged misunderstanding of “degrading treatment”

34    Ground 3 of the appellant’s notice of appeal charges the Tribunal with having erred by “expressing ‘degrading treatment’ as ‘extreme humiliation’”.

35    That articulation of the ground did not align perfectly with the written submissions that were advanced in support of it. There, the appellant explained that the Tribunal was said to have erred by importing into the concept of “degrading treatment or punishment” a requirement that “discriminatory treatment…be extreme or sustained” or otherwise involve “physical mistreatment”. Doing so, the appellant contended, led the Tribunal to misconstrue what the Act contemplates as “significant harm” under s 36(2)(aa) of the Act.

36    By the oral submissions advanced by her counsel during the appeal, the appellant elaborated yet further on this ground. She contended that the Tribunal’s error manifested in its failure to consider whether the subjective impacts upon her of the various forms of discriminatory treatment of which it was accepted (or not disputed) that she was at risk were sufficient to fall within the definition of “degrading treatment or punishment” in s 5(1) of the Act.

37    As is apparent from the above analysis of the Tribunal’s Decision (above, [8]-[10]), the appellant alleged that she had been subjected to various instances of adverse treatment on account of being an HIV-positive widow, and that she would be subjected to similar treatment were she to return to Nepal. In that regard, she contended that she had experienced people “…not wanting to touch her, saying negative things [about her] and avoiding touching [her] utensils and linen”; and that her husband’s family blamed her for his death and had forced her to leave his family home. She maintained that HIV sufferers in Nepal are considered “untouchables” and are restricted from attending social functions and gatherings; and that there is generally a stigma that attaches to HIV sufferers in Nepal that sounds in their subjection to discriminatory treatment.

38    The Tribunal did not, in terms, reject any of those contentions. Indeed, it expressly accepted that the applicant had suffered a “degree of discrimination and adverse treatment” in Nepal on account of her condition (Tribunal’s Decision, [69], above, [8]). The Tribunal did reject certain other claims made by the appellant (e.g. at [69], [70] and [71]) but these findings can be put to one side for present purposes.

39    It is apparent from the Tribunal’s Decision that the Tribunal considered the degree to which the above-summarised examples of discriminatory treatment might adversely affect the appellant. Insofar as concerned the appellant’s treatment in her home village, it concluded that the discriminatory treatment to which she had been subjected was of a “moderate level only”: Tribunal’s Decision, [72] (above, [8]). More generally, although it accepted that there might be “some degree of discrimination, negative verbal comments, and a lack of understanding from individuals either in Pokhara or [the appellant’s] home village”, the Tribunal did not accept that any such treatment would amount to “physical mistreatment [or] discriminatory treatment that would be extreme or sustained such that it would constitute…extreme humiliation…for the purpose of the complementary protection criterion (in terms of whether the [appellant] would face degrading treatment or punishment as a defined category of significant harm)”: Tribunal’s Decision, [78] (above, [8]).

40    By addressing as it did the discriminatory treatment to which the appellant claimed that she had been and/or would be subjected, the Tribunal properly considered what it was required to consider: namely, whether there was a real risk that the appellant might be subjected to significant harm if she returned to Nepal. That was a question that required consideration of whether any of the consequences that the appellant’s return to Nepal might visit upon her fell within any one or more of the categories for which s 36(2A) of the Act provided. The only such category into which any of the consequences that the appellant identified might realistically have fallen was the one for which s 36(2A)(e) of the Act provides. Hence it was necessary for the Tribunal to consider whether any of the adverse treatment of which the appellant was at real risk if she returned to Nepal rose to the standard of “degrading treatment or punishment”.

41    That, in turn, was a question that called for consideration as to whether any of the instances of adverse treatment of which the Tribunal apparently accepted that the appellant was at risk would involve her being intentionally subjected to “extreme humiliation which [was] unreasonable”: the Act, s 5(1) (above, [19]). It is true that the Tribunal answered that question in a global manner: it did not consider whether each individual instance of discriminatory or adverse treatment to which the appellant was at real risk of being subjected was such as might qualify as “extreme humiliation which [was] unreasonable”. Nonetheless, as is plain from the analysis above, the Tribunal did appreciate the nature of the risks to which the appellant might be subjected if she returned to Nepal and did consider whether there was a real risk that they might subject her to “extreme humiliation”.

42    Reasoning in that way did not amount to a constructive failure to exercise the jurisdiction that ss 414 and 415 of the Act conferred upon the Tribunal. Although the Tribunal was required to consider each incident of adverse treatment that the appellant’s return to Nepal threatened to visit upon her—and, in particular, whether it was of a kind by which she might be subjected to significant harm constituted by degrading treatment or punishment (in the form of an act that causes and is intended to cause extreme and unreasonable humiliation)—it was not required to record in its written decision record individual findings to that end. It was sufficient that its consideration find expression more generally: Minister for Home Affairs v Buadromo (2018) 362 ALR 48, 59 [46] (Besanko, Barker and Bromwich JJ); Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604-605 [46]-[47] (French, Sackville and Hely JJ).

43    Further, having concluded that none of the adverse treatment to which the appellant was at risk of being subjected would cause her “extreme humiliation”, it was not necessary for the Tribunal to separately consider, in each case, whether the treatment would visit that consequence upon her intentionally or whether any such humiliation was unreasonable.

44    Those conclusions stated, we turn to whether the Tribunal might be said to have misunderstood its task in that it considered only the objective nature of the impact of the discriminatory or adverse treatment to which it accepted (or did not dispute) that the appellant might be subjected if she returned to Nepal. It was submitted that the proper discharge of the Tribunal’s task required that it consider the subjective impacts of that treatment upon the appellant (and, in particular, whether those impacts might, in her case, rise to the standard of “extreme humiliation”).

45    We do not accept that the Tribunal should be understood to have overlooked the subjective impacts upon the appellant of the relevant discriminatory or adverse treatment. As the analysis above demonstrates, it is plain that the Tribunal was conscious of the different species of treatment to which the appellant claimed that she would be subjected upon her return to Nepal, and of her contention that they would visit extreme humiliation specifically upon her. The Tribunal concluded that the appellant had embellished some of those claims, and that the adverse or discriminatory treatment to which she had been subjected in Nepal was of a moderate level only. There is no warrant to infer, in those circumstances, that the Tribunal did not consider the subjective impact that the treatment would have on the appellant. There is nothing about the Tribunal’s approach in this case to the question of whether or not the appellant might be subjected to “extreme humiliation” that bespeaks jurisdictional error.

46    Likewise, that the Tribunal’s analysis focused upon physical and discriminatory mistreatment was neither misplaced nor surprising. It reflected the bases upon which the appellant claimed that she satisfied the complementary protection criterion upon which the determination of her Visa Application partly rested. The appellant claimed that she had been and/or would be subjected to torture and discriminatory treatment in Nepal on account of her status as an HIV-positive widow. Those were the circumstances that the Tribunal was required to consider and it did so. It did not thereby import requirements of physical or discriminatory mistreatment into the statutory concepts with which it had to grapple (namely, “significant harm”, “degrading treatment or punishment” and “extreme [and unreasonable] humiliation”); it simply considered whether the instances that the appellant advanced were sufficient to engage those concepts in a manner favourable to her Visa Application. Its conclusion that they were not was not one affected by jurisdictional error.

47    Even if, contrary to the conclusions expressed in the two preceding paragraphs, there was some misconstruction by the Tribunal of what should qualify as “significant harm” under s 36(2)(aa) or “degrading treatment or punishment” under s 36(2A)(e) of the Act, any such error was immaterial to the Tribunal’s conclusion and, as such, does not qualify as jurisdictional in nature. Legal error on the part of an administrative decision maker will only qualify as jurisdictional error if it is material: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, 788 [29]-[31] (Kiefel CJ, Gageler and Keane JJ), 790 [46] (Edelman J); Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 (“SZMTA”), 257 [2]-[4], 263-264 [45]-[50] (Bell, Gageler and Keane JJ), 271-272 [89]-[95] (Nettle and Gordon JJ). In order to clear that hurdle, an applicant for judicial review must demonstrate that the error was one whose absence might have resulted in a different outcome: SZMTA, 263 [45] (Bell, Gageler and Keane JJ).

48    In our view, that is not a hurdle that the appellant in this case can clear. The adverse and discriminatory treatment to which the appellant is at risk of being subjected upon returning to Nepal was found to be of a “moderate level”. Given the Tribunal’s conclusions about the appellant’s credibility, there is no prospect that it might have decided the Review Application in the appellant’s favour but for any statutory misconstruction on this front (if there was one).

49    It follows that ground 3 of the appellant’s notice of appeal is not made out.

Disposition

50    The appeal should be dismissed with costs. Orders will issue to that end.

Associate:

Dated:    2 December 2019