FEDERAL COURT OF AUSTRALIA

GLD18 v Minister for Home Affairs [2020] FCAFC 2

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to rely on the amended notice of appeal filed on 3 December 2019.

2.    The appeal be dismissed.

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

4.    On or before 4 pm on 19 February 2020, the parties file any agreed minute of orders fixing a lump sum in relation to the first respondent’s costs.

5.    In the absence of any agreement having been reached, 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.

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.

3.    On or before 4 pm on 19 February 2020, the parties file any agreed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement having been reached, 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

ALLSOP CJ AND MORTIMER J:

1    These two appeals, which were heard together, raise the same question about the nature and scope of the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth). The question is: can a person satisfy the criterion in s 36(2)(aa) if the harm she or he identifies arises because of separation from her or his family members, who – for one reason or another – will not in fact return with that person to her or his country of nationality?

2    In our opinion, that question should be answered in the negative. In each case, the Federal Circuit Court was correct to reject the appellants’ arguments on this matter. In each case, the Federal Circuit Court applied the decision of Mansfield J in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751. The appellants in these appeals also sought to challenge the correctness of that decision. That challenge should fail.

3    Each appellant also raised a ground of appeal which was particular to the Tribunal’s decision in his case. The individual ground of appeal in each appeal should also be rejected.

4    The appeal in GLD18 is from the Federal Circuit Court’s decision in GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201. The appeal in CAC19 is from the Federal Circuit Court’s decision in CAC19 v Minister for Home Affairs & Anor [2019] FCCA 3336. The general procedural and factual background to each appeal is adequately set out in the reasons of the Federal Circuit Court in each case and we do not repeat them, save where necessary to determine the question of the appeal. Briefly, the relevant facts on each appeal are as follows.

CAC19

5    CAC19 is a Nigerian national, who arrived in Australia in 1999. He had unsuccessfully applied for a protection visa in 2001, but was able to make a second protection visa application, in relation to the complementary protection criterion in s 36(2)(aa) of the Act, by reason of this Court’s decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235, and the failure to consider his claims against that visa criterion. Although he had a number of bases for his claim to complementary protection, this appeal concerns only two of them.

6    CAC19 has a partner who is a Chinese national, and they have two daughters. He has a son from a previous relationship, but it is the circumstances of his daughters which were relevant to his protection claim, and to the appeal. At the time of the Tribunal decision, they were aged five and seven years old. The Tribunal was informed, and found, that each of the daughters was an Australian citizen. In oral argument counsel for the Minister informed this Court that the citizenship of the daughters became an issue in the Federal Circuit Court, and in correspondence between the parties’ solicitors it was stated that in fact both daughters are not Australian citizens. Therefore, counsel for the Minister submitted the Tribunal’s factual finding at [79] of its reasons is incorrect. Nothing turns on the factual error for the purposes of this appeal, although the question of the daughters’ correct citizenship status is obviously objectively an important matter.

7    Each daughter has been granted a protection visa in Australia. The eldest daughter was granted a protection visa as a consequence of a decision of the Refugee Review Tribunal on 5 November 2010. The Tribunal’s summary (in the appellant’s review) of the reason for the eldest daughter being granted a protection visa was not said to be inaccurate. At [18], the Tribunal stated:

The Refugee Review Tribunal determined that [name redacted] met the relevant criterion because her mixed Nigerian and Chinese racial background would make her a non-indigenous Nigerian which puts her at a greater risk of suffering serious harm based on being identified as non-indigenous. Further, she may become an abandoned child in Nigeria because she will not have the support of her father because of him being imprisoned for a substantial period in Nigeria due to his drug-related criminal record in Australia. It is indicated that she would not have the support of her mother because she would not travel to the country to avoid being targeted in Nigeria for being a non-indigenous person who is married to a Nigerian citizen.

8    The factual finding on the eldest daughter’s review that her father was likely to be imprisoned for a substantial period in Nigeria is a reference to the appellant’s claim that he would be subjected to punishment by the Nigerian authorities under what is called “Decree 33”, a Nigerian law which seeks to punish those Nigerian nationals convicted outside Nigeria of drug-related offences, on the basis that they have brought the name of Nigeria into disrepute. The appellant’s potential exposure to the effects of Decree 33 is the subject of his separate ground of appeal: see [71]-[80] below.

9    The younger daughter was subsequently granted a protection visa on the same basis as her sister.

10    The Tribunal made a finding of fact about whether the two daughters would return to Nigeria with their father, if he was removed. It found (at [80]):

The Tribunal accepts that if the applicant is returned to Nigeria then the second named applicant and the two children, who are part of his current family unit, are unlikely to follow. This is because the children face a real chance of serious harm in Nigeria on the basis of their mixed heritage as found by the Tribunal considering [name redacted’s] Protection visa application.

11    Instead, the Tribunal accepted (at [81]) that although the daughters have a right to remain in Australia, if the appellant was removed it was likely their mother would seek to take them back to China, where they may be entitled to Chinese citizenship if they renounce any other citizenship they hold.

12    Relevantly to the grounds of appeal, one of the bases on which CAC19 claimed protection was that he would be subjected to significant harm if returned to Nigeria on account of being separated from his family. Having examined the delegate’s decision, it does not appear that he put any such claim to the delegate: he had a number of other claims, but not this one. Nevertheless at [79] of its reasons, the Tribunal recorded this as a claim he made to it. In the evidence before the Court on the appeal concerning the appellant’s second protection visa application, there are no written statements by the appellant (to the delegate or to the Tribunal), nor any written submissions made on his behalf, despite the fact he was represented before the Tribunal by a migration agent. The Tribunal recorded at [4] of its reasons that the agent did not attend the review hearing. In response to the hearing invitation, the agent informed the Tribunal the appellant had instructed the agent to notify the Tribunal that no written submissions would be provided to the Tribunal prior to the hearing and that the appellant instead wished to discuss his claims with the Tribunal member at the hearing. There is no other indication aside from what is recorded at [79] of the Tribunal’s reasons about how this claim was put, or precisely what the appellant said about it. Quite properly, having identified it as a separate claim, the Tribunal dealt with it on that basis. To say the claim was lacking in detail would be an understatement.

13    The Tribunal found at [82] that the appellant’s criminal history was likely to prevent him from travelling to China to be with his family there. At [85] of its reasons the Tribunal accepted that if the appellant was not granted a protection visa, he and his partner would be “split apart” and the appellant would be separated from his daughters. Further, at [86] of its reasons, the Tribunal accepted the separation of CAC19 from his partner and daughters “would lead to harm for both applicants”. We note here the reference to “both applicants” is explained by the fact that the appellant’s partner was a secondary applicant on his protection visa application.

14    However, relying on Mansfield J’s decision in SZRSN, the Tribunal stated (at [88]) that “harm arising from the act of removal itself” did not meet the definition of “significant harm” in s 36(2A). It is worthwhile extracting the Tribunal’s reasoning on this issue in its entirety (at [88]-[93]):

In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A). The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought. Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.

Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.

Lastly, the Court in SZRSN v MIAC had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.

Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A). As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.

In the hearing, the applicant did not take issue with the fact that removal from Australia and the family being split up would not constitute significant harm for the purpose of the complementary protection criterion.

For the reasons given, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for the purpose of the complementary protection criterion as a result of being separated from his wife and children, if he were to return to Nigeria.

15    It is this reasoning which the Federal Circuit Court upheld, and which is impugned in the first two grounds of appeal.

16    As we have noted, CAC19 also has a separate ground of appeal, contending that the Tribunal erred by failing to deal with contradictory country information on the question of whether Decree 33 would be enforced against the appellant. We deal with this ground below.

GLD18

17    GLD18 is a citizen of the United Kingdom. He applied for a protection visa on 6 September 2018. He claimed to be a devout Catholic. His wife is an Italian national and they have a daughter. They also had a son, who passed away in January 2017, at the age of only three months. Their son is buried in Australia.

18    GLD18 and his wife became estranged after their son’s death. The Tribunal found an intervention order was issued against the appellant, which was what led to the cancellation of the visa he then held, as a dependent on his wife’s visa. It was after this visa cancellation that he lodged a protection visa application. In support of that application, he claimed his wife “actively wants to get me out of the country so she has sole care and custody of” their daughter, despite the fact he claimed he was the daughter’s primary carer in her formative years, and that they have a “deep loving bond”.

19    His protection visa application recorded that:

I do not fear any harm from the Scottish authorities – but I do not believe that they will be able to help me keep connection with my daughter because my wife is an Italian national.

20    His protection visa application was refused by a delegate of the first respondent. On review before the Tribunal, GLD18 claimed that visiting his son’s grave was “a protective factor” for his mental health and wellbeing. He claimed that “both from a faith perspective and with all my heart, it is a truly sacred place for me”. The Tribunal appeared to accept (at [13] of its reasons) that the appellant’s mental health deteriorated after his son’s death.

21    The Tribunal made two sets of factual findings relevant to the grounds of appeal. As to grounds one and two (the common grounds with CAC19), the Tribunal did not accept that the harm claimed by the appellant fell within the definition of “significant harm” for the purposes of s 36(2A). Referring to SZRSN, the Tribunal stated (at [26]):

In that matter, the Federal Court found that harm arising from the act of removal itself will not meet the definitions of significant harm in s.36(2A).

22    Second, the Tribunal found (at [24]) that the concept of “significant harm” in s 36(2A) is “framed in terms of harm suffered because of the acts of others”. It found the concept:

… does not encompass harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to the receiving country. For the same reasons it would not encompass self-harm.

23    Accordingly, at [25] the Tribunal found:

Any harm the applicant will suffer as a result of mental illness will not be harm that is suffered as a result of the act [of] another person. For this reason, I find that the applicant’s mental health does not constitute significant harm for the purposes of complementary protection.

24    As we have noted, the appellant in GLD18 also has a separate ground of appeal, contending that the Tribunal erred in its conclusion about any mental illness he suffered not being within the concept of “significant harm”. He contends that insofar as the decisions of this Court in CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 and CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 support such a conclusion, they are wrongly decided.

Resolution

25    The two common grounds of appeal are in the alternative. Ground one contends that the Tribunal erred in applying the decision in SZRSN because it is wrong, and should be overruled, or not followed. Ground two is that in each review, the Tribunal erred in applying SZRSN, when the case before it was distinguishable. In each case, the Federal Circuit Court is said to have erred in not upholding one or both of these arguments.

26    The complementary visa criterion in s 36(2)(aa) is:

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

…

(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[.]

27    Section 36(2A) provides:

(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.

28    Section 36(2B) provides:

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

29    The terms “cruel or inhuman treatment or punishment”, “degrading treatment or punishment” and “torture” are each defined in s 5(1):

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.

30    The other two categories of significant harm in subss 36(2A)(a) and (b) are self-explanatory in the sense that both involve positive acts.

31    The immediate observation to make, and the proposition with which the appellants’ arguments failed to grapple in a satisfactory way, is that each category of harm looks to the conduct of an actor or perpetrator, and identifies the visa applicant as the subject of the conduct of that actor or perpetrator.

32    We also note the definition of “receiving country” in s 5(1):

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

33    There are at least two separate issues arising from the appellants’ contentions on grounds one and two:

(a)    the proper construction of the criterion in s 36(2)(aa), in terms of the circumstances in which the risk of significant harm must arise; and

(b)    whether physical or mental harm arising by reason of the separation of a family (relevantly, but perhaps not exclusively, of a parent from her or his children) and consequent upon the visa applicant’s removal from Australia, can constitute “significant harm” for the purposes of the criterion in s 36(2)(aa), read with the definitions of significant harm in s 36(2A) and s 5(1).

34    In substance, the decision in SZRSN dealt more with the second of these two issues, but it is true the Court’s analysis was framed, in its reasons, by reference to whether removal from Australia could constitute significant harm. It was this framing which gave rise to the appellants’ contentions of error. However, Mansfield J also touched on the first issue, with respect correctly rejecting any suggestion that the complementary protection criterion in s 36(2)(aa) is intended to reach harm that cannot be attributed to acts or omissions towards a visa applicant and occurring in the receiving country. The two issues are plainly linked, given that the concept of “significant harm” is a component of the visa criterion itself.

35    The impugned passages from SZRSN are found at [47]-[49]:

It should be noted here that only an “act or omission” will fall within either of the above definitions. Being separated from one’s children is, in the present context, not an act or omission but a consequence of an act. The relevant act is the act of removal from Australia. The separation from his children is said to be the cruel, inhuman or degrading treatment.

The Federal Magistrate concluded that forced removal from one’s children in Australia by the Australian government could not be considered cruel, inhuman or degrading treatment so as to constitute “significant harm” for the purposes of s 36(2)(aa) of the Act for four main reasons:

1. The text of s 36(2)(aa) (which refers to Australia’s “protection obligations”), and the Explanatory Memorandum associated with the Bill that introduced s 36(2)(aa) (Migration Amendment (Complementary Protection) Bill 2011: Explanatory Memorandum, House of Representatives [65]), make it clear that the purpose of s 36(2)(aa) is to ensure Australia complies with its “non-refoulement obligation” that arises from Articles 2 and 7 of the 1966 International Covenant on Civil and Political Rights and associated jurisprudence of the United Nations Human Rights Committee. That obligation is an obligation not to remove anyone from Australia to a country where there are substantial grounds for believing that there is a real risk that the person will suffer “irreparable harm”. The obligation is therefore clearly an obligation to protect non-citizens from harm faced in the receiving country. Being removed from one’s children cannot be characterised as a harm faced in the receiving country.

2. Section 36(2B) sets out the circumstances where a non-citizen should be taken not to be at a real risk of significant harm for the purposes of s 36(2)(aa); for instance, where the non-citizen is reasonably able to relocate to another part of the receiving country where there would be no real risk of significant harm: s 36(2B)(a). These “exceptions” only make sense if the legislature intended that the “significant harm” occurs only in the receiving country.

3. To satisfy s 36(2)(aa), the real risk of significant harm must arise “as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country”. The fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.

4. With respect to “degrading treatment”, forced separation from one’s family by removal from Australia cannot constitute “degrading treatment” as defined in s 5(1). “[D]egrading treatment” is an act or omission that, inter alia, is “intended to cause” extreme humiliation and, the Federal Magistrate said, separation from one’s family is a consequence of the act of removal from Australia and “… a consequence cannot be said to have an intention to cause a result (which it itself constitutes)”, so the act of removal itself cannot be said to be “perpetrated by the State with the intention to cause extreme humiliation that is unreasonable”: at [65].

In my view, that reasoning is not shown to be erroneous. An interpretation of the legislation that incorporates removal from one’s family by the Australian government as “significant harm” would be an extremely strained reading, and one not in accordance with the clear intention of Parliament in enacting the complementary protection criterion. That intention was to honour Australia’s non-refoulement obligation. In short, the appellant has failed to identify or demonstrate any error in the application of the term “significant harm” by the Federal Magistrate. Specifically in relation to the findings made by the Tribunal that harm feared by the appellant from gangs and other unidentified people in New Zealand does not meet the threshold of “significant harm” in s 36(2A) of the Act, and does not represent in any event fear of harm for a Convention reason, and that the removal of the appellant from Australia to New Zealand with the consequence of the separation from his children or its effects does not constitute “significant harm” as defined, no error is shown.

(Original emphasis.)

Ground one: whether SZRSN is wrong

36    The question whether the standard of “plainly wrong” should be applied as between a single judge exercising appellate jurisdiction (as Mansfield J was in SZRSN) and a bench of three judges exercising appellate jurisdiction (as this Court is), or whether some different approach should be applied, can be put to one side. At base, whatever the language employed, the issue is one of maintaining comity between members of the same court, with due regard being paid to the core judicial responsibility in each case to do justice according to law, as the court then constituted understands the law to be. On the present appeal those issues can be put to one side because we consider Mansfield J’s approach in SZRSN was, with respect, correct.

37    First, his Honour was correct about the scope and operation of the concept of “significant harm” as part of the protection visa criterion in s 36(2)(aa). At both a textual and a purposive level, the concept is concerned with acts or omissions occurring in the relevant “receiving country” and which result in the visa applicant being treated in a particular way. The language in subss 36(2A)(a) and (b) and in the definitions of the concepts in subss 36(2A)(c)-(e) all concern, and only concern, how a visa applicant might be treated by another person. That is confirmed in the use of the verb “subjected” in subss 36(2A)(c)-(e); and it is inherent in the text of subss 36(2A)(a) (“arbitrarily deprived of his or her life”) and (b) (“death penalty will be carried out on the non-citizen”).

38    As his Honour noted at [48(1)], in approving the reasons of the (then) Federal Magistrates Court in SZRSN v Minister for Immigration and Anor [2013] FMCA 78, the removal of a visa applicant from Australia cannot itself be the significant harm; nor can removal be the act against which a visa applicant is to be protected. As his Honour said, if the obligation exists, it is to protect non-citizens from harm faced in the receiving country, and being removed from one’s children (who remain in Australia, or a country other than the receiving country) cannot be characterised as a harm faced in the receiving country.

39    To put it the other way around, harm suffered by a visa applicant because, in a causative sense, she or he cannot remain in Australia is not harm within the purview of s 36(2)(aa). Subject to qualifications of the kind to which we refer in [41] below, and noting the relevant conditions imposed by the particular language of s 36(2)(aa), a protection visa is granted in order to fulfil Australia’s protection obligations under the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, by reason of the apprehended treatment of individuals in the countries to which they are to be removed. The focus of the decision-making exercise is generally on what will happen to those individuals in the receiving country, by reason of the conduct of actors or perpetrators in that country, or by reason of the circumstances prevailing in that country, for which some actors or perpetrators can be attributed responsibility.

40    For example, complementary protection may be granted to a visa applicant against exposure to sectarian violence in her or his country of nationality, even if the individual perpetrators of that violence cannot be identified, and even though the perpetrators may be non-State actors. Or, as described in the recent case of Minister for Home Affairs v Omar [2019] FCAFC 188 at [10], [21] and [40], the harm might be at the hands of the (unidentified) authorities of the State and its agents who deliberately inflict particular forms of mistreatment and incarceration on the mentally ill.

41    The one qualification that might clearly arise in terms of a proposition that s 36(2)(aa) exclusively contemplates that significant harm may be inflicted in the receiving country is the circumstance of rendition. We would not wish it to be thought that we see a practice such as rendition as necessarily outside s 36(2)(aa). In those circumstances however, and if the evidence supports such findings at a merits level, it is likely that any significant harm would readily be seen as a “necessary and foreseeable consequence” of a visa applicant being removed from Australia “to” a receiving country, with any journey from Australia to the receiving country being picked up as part of removal “to” a receiving country.

42    In contrast, the appellants’ contentions would have Australia granting protection from its own conduct (removing a person). That is not the purpose of a protection visa, whether under s 36(2)(a) or s 36(2)(aa). Australia grants protection as a surrogate for the protection that the visa applicant’s country of nationality cannot, or will not, offer to that applicant.

43    Our observations concerning the correct construction of s 36(2)(aa) are reinforced having regard to the circumstances in which it was enacted. The relevant legislative history has been described in previous decisions of the High Court, and the Full Court of the Federal Court: see, for example, SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [1]-[3] (Kiefel CJ, Nettle and Gordon JJ) in which their Honours adopted Edelman J’s description of the relevant legislative background, which includes his Honour’s observations at [69]-[73]; Plaintiff M150/2013 v Minister for Immigration and Border Protection [2014] HCA 25; 255 CLR 199 at [2] (French CJ), and in particular the contents of footnote 11; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [64]-[72] and [96]-[100] (Lander and Gordon JJ); Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; 207 FCR 211 at [17]-[19] and [29]-[31] (Lander, Jessup and Gordon JJ).

44    Section 36(2)(aa) was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth), and took effect on 24 March 2012. It created an additional criterion for the grant of a protection visa aside from the existing criterion in s 36(2)(a), which was only engaged in circumstances where the Minister was satisfied Australia had obligations towards a person because she or he is a refugee. Prior to the enactment of s 36(2)(aa), an applicant who was unable to satisfy the criterion in s 36(2)(a) was ineligible to receive a protection visa under the Migration Act: see SZTAL at [69]-[71]. As such, the key purpose of the introduction of the “complementary protection regime” provisions, including s 36(2)(aa), was to address this issue and in doing so facilitate Australia’s adherence to its non-refoulement obligations, as explained in the outline of the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) (Explanatory Memorandum):

The Migration Amendment (Complementary Protection) Bill 2011 (the “Bill”) amends the Migration Act 1958 (the “Act”) to introduce greater efficiency, transparency and accountability into Australia’s arrangements for adhering to its non-refoulement obligations under the International Covenant on Civil and Political Rights (the “Covenant”), the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child (the “CROC”) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”). Protection from return in situations that engage these non-refoulement obligations is often referred to as “complementary protection”, that being protection under international treaties that is additional to the protection given to refugees under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees (the “Refugees Convention”).

The purpose of the amendments in this Bill is to establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia’s arrangements for meeting its non-refoulement obligations and better reflect Australia’s longstanding commitment to protecting those at risk of the most serious forms of human rights abuses.

45    See also SZQRB at [99]-[100] (Lander and Gordon JJ).

46    As we have explained above, the touchstone for the engagement of the complementary protection criterion in s 36(2)(aa) is 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”. In SZQRB at [98], Lander and Gordon JJ observed that the statutory definition of “significant harm” in s 36(2A) “recognises the type of harm from which the CAT and ICCPR seek to protect” individuals. That is, harm arising from the treatment of individuals in the country to which they are to be removed (the “receiving country”), by agents or perpetrators located in that country, the protection of visa applicants from such harm being consistent with Australia upholding its international obligations. That approach to the purpose of this visa criterion is also consistent with the observations of the High Court in CRI026 v Republic of Nauru [2018] HCA 19; 355 ALR 216 at [16]-[49], where the Court examined in detail the nature of a State’s complementary protection obligations under international law.

47    This construction of s 36(2)(aa), and the concept of significant harm, also finds support in the contents of the Explanatory Memorandum at [34], where in the context of discussing the defined term of “receiving country” it was stated that the Minister’s assessment of whether a visa applicant satisfies the complementary protection criterion in s 36(2)(aa) is conducted “in relation to the destination country to which the non-citizen would be removed from Australia”. See also [67] of the Explanatory Memorandum.

48    Thus, to construe s 36(2)(aa) in the way the appellants contend would undermine the fundamental purpose of this visa criterion, as explained in the authorities and extrinsic material to which we have referred.

49    At a textual level, if further resort need be had to that level, the appellants’ contentions also give insufficient attention and weight to the placement of the words “being removed from Australia to a receiving country” (our emphasis) after the words “as a necessary and foreseeable consequence”. Picking up the qualification we have made at [41] above, the textual focus is on what will happen to a person in (or en route to) the receiving country. Several other textual points might be made:

(a)    the definition of “significant harm”, as we have explained above, has a textual focus on others engaging in conduct towards the visa applicant (whether as an individual or as a member of a group or community);

(b)    the element of “intention” in the definitions of “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment” again focuses attention on the state of mind of a perpetrator or actor; and

(c)    the three categories set out in s 36(2B), identifying exceptions to the s 36(2)(aa) criterion applying to an individual, all have as their premise acts or omissions occurring in the receiving country, or circumstances prevailing in the receiving country which are likely to affect individuals who are returned there.

50    The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will. That is the purpose, under the present statutory scheme, of the Minister’s personal discretions in ss 351 and 417 of the Migration Act.

51    Ground 1 in both appeals must be rejected.

Ground two: whether SZRSN is distinguishable in each or either appeal

52    We do not accept the appellants’ contentions that SZRSN is distinguishable because of the different circumstances of each appellant in these proceedings from those of the appellant in SZRSN.

53    SZRSN concerned a New Zealand national, who claimed protection in Australia because of a fear of violence from his father and other family members in New Zealand. He also stated that he wanted to remain in Australia with his partner and children and that he did not have family or friends in New Zealand apart from his estranged father: see SZRSN at [10]-[11]. The decision is not in its terms restricted to the circumstances of the appellant in that case, and should not be read in that way. The presence of the phrase “in the present context” in [47] does not indicate any particular restriction in the approach being outlined by Mansfield J, but rather indicates the “context” was the kind of claim of harm being made by the appellant in SZRSN.

54    None of the matters to which the appellants referred in argument – for example, whether or not the children are Australian citizens, whether the children might be taken to a third country (in CAC19’s case to China, and in GLD18’s case to Italy), whether or not the children themselves have protection visas in Australia (CAC19), whether the appellant and his child or children have different nationalities (GLD18), whether the harm involved may include physical self-harm (GLD18) – have any impact on the applicability of SZRSN to these appeals, or the principles we outline in these reasons.

55    While all of these factual differences may explain why – in addition to the fact of their removal from Australia – they may not continue to reside in the same country as their children, the underlying premise of both appellants’ arguments is that they will not suffer the claimed harm if each of them is able to remain in Australia. Therefore, it matters not whether their children might leave for other reasons (such as a custody dispute in GLD18’s case) or that their children might not be able to reside with them in their receiving country (such as CAC19’s children who fear persecution in Nigeria). Whichever way the facts are approached, the proposed involuntary removal of each appellant (the mirror position of their inability to remain in Australia) is a necessary precondition to any hope of satisfying the criterion in s 36(2)(aa). In the statutory provision, removal is not causative of the harm: it is simply the premise or precondition on which the complementary protection criterion operates.

56    With respect, the appellants’ attempts to distinguish SZRSN obscure the primary difficulty with the appellants’ contentions: namely, that the harm which they identify is not a harm to which they will be subjected in their receiving country, by reason of acts or omissions occurring in that country. Rather, it is harm consequential upon the refusal of permission for them to remain in Australia. That refusal of permission, which leads to their removal, makes a claim for protection available, but is disconnected from the complementary protection criterion itself, which focuses on what may happen in the receiving country.

57    In the proceeding before the Federal Circuit Court, CAC19 made the same submissions about distinguishing SZRSN as made to this Court. With respect, the learned Federal Circuit Court judge’s statements at [27] were broadly correct (allowing for some differences in the language used which are of no consequence to the gist of his Honour’s observations):

In the ultimate, I think that the matters raised by the applicant are more properly described as distinctions without a difference. The real operative reason [for] the separation of the applicant from his children will be his deportation to Nigeria. They could, in fact, go there, but they would face persecution if they did. In the end, however, that position obtained prior to the applicant’s deportation. It is the act of deportation that will give rise to his separation.

58    Finally, in relation to GLD18, the appellant’s grief and severe distress at his son’s death, and his wish to be able to visit his son’s grave, can be readily understood at a human level, including its religious aspects. However, the harm the appellant may genuinely experience nevertheless falls into the same category as the other kinds of harm articulated on behalf of both appellants in these appeals. It is disconnected from the circumstances prevailing in the receiving country – here, the United Kingdom. His arguments are not on this basis distinguishable from the principles set out in SZRSN, and in these reasons. There are no putative actors or perpetrators of harm in the United Kingdom (whether as agents of the State or otherwise), who it is claimed through their acts or omissions will “subject” the appellant to any of the categories of harm in s 36(2A). There are no alleged circumstances prevailing in the United Kingdom, which could be said to arise from intentional conduct on the part of any person or persons, to which the appellant will be exposed and from which there are substantial grounds to believe he cannot be protected by the United Kingdom once he is returned, always bearing in mind the exceptions in s 36(2B).

The other Federal Circuit Court decisions

59    Although the first two grounds of appeal raised by both appellants are to be dismissed, something should be said about the decisions of the Federal Circuit Court referring to SZRSN, including the two decisions which are the subject of these appeals.

60    In GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201 at [7], the Federal Circuit Court described SZRSN as a decision not “completely free of doubt”, basing that statement on the Federal Circuit Court’s decision in MZAEN v Minister for Immigration and Border Protection [2016] FCCA 620; 306 FLR 76.

61    Whether or not an individual judge of the Federal Circuit Court considers any “doubt” attaches to a decision of this Court, a Federal Circuit Court judge is bound to follow a decision of this Court unless it can be lawfully distinguished. As a member of a court whose orders are subject to the exercise of appellate jurisdiction by this Court, a Federal Circuit Court judge is obliged and required to follow a decision of this Court, whether the decision is made in this Court’s original or appellate jurisdiction.

62    That was the approach correctly taken by the Federal Circuit Court judge in CAC19 at [28]:

In my view, the decision in SZRSN is binding upon me and I am bound to follow it and will do so.

63    It was not the approach taken in MZAEN. At [49]-[50], and having extracted the relevant passages from Mansfield J’s judgment in SZRSN, the Federal Circuit Court stated:

It seems to me that the reasoning in SZRSN may be not entirely correct. Section 36(2)(aa) of the Act provides that a person is entitled to a protection visa where:

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.

That paragraph of the Act does not focus on the removal, as SZRSN does, but on the necessary and foreseeable consequences of the removal. Such consequences, in the present case, would include the possible consequence that the second and third applicants, being a mother and her young child, would suffer psychological harm, in their receiving countries, from being separated from each other.

64    While it can be accepted that some of the language used by Mansfield J seemed to identify the act of removal as the requisite harm for the purposes of s 36(2)(aa), to read his Honour’s observations that literally would be wrong, especially in the context of what his Honour said at [47]. Read as a whole, and recalling that the appellant before Mansfield J had no legal representative to articulate the argument for him, it is clear his Honour was explaining why the claimed consequences of removal – where those consequences were the separation of a family and any associated emotional or psychological harm to the visa applicant – fell outside s 36(2)(aa). It is no more complicated than that.

65    The Federal Circuit Court’s observations in MZAEN at [49]-[50] followed a lengthy discussion of how the separation of a family has been treated in the international human rights law context. Relevantly, at [45]-[46], the Federal Circuit Court proceeded on the basis that the Full Court’s decision in Minister for Immigration and Citizenship v SZQOT [2012] FCAFC 141; 206 FCR 145 was authority for the proposition that separation of family members is capable of constituting serious harm under the Refugees Convention. We return to SZQOT below, but it was after confirming the application of SZQOT to the circumstances in MZAEN that the Federal Circuit Court moved to consider the decision in SZRSN in relation to complementary protection, on the basis that SZQOT only applied to serious harm arising under s 36(2)(a), and the question of whether the separation of family members could constitute “significant harm” for the purposes of s 36(2)(aa) “begins with SZRSN” (at [47]). The Federal Circuit Court’s views in MZAEN about the approach taken in SZQOT appear to have been in part responsible for the doubts it expressed about SZRSN.

66    The Federal Circuit Court in MZAEN proceeded to distinguish SZRSN. The basis on which it did so is set out at [51]-[52]:

Be that as it may, SZRSN was a decision on appeal from this court. As such, it is binding on this court, unless it is distinguishable. The second and third applicants argued that SZRSN was distinguishable from the present case because, in SZRSN, the person who was to be removed from Australia was the New Zealander father of children who would remain in Australia, whereas, in the present case, the mother and her young child would both be removed from Australia. Also, in SZRSN at [47], Mansfield J expressly relied on the context of that case, being that the removal of the New Zealander father from Australia, while his children would remain in Australia.

It seems to me that that is sufficient to distinguish SZRSN from the present case. In the present case, both the second and the third applicants, a mother and young child, would be removed from Australia and would possibly suffer significant harm in their respective receiving countries, being the possible psychological harm of being separated from one another.

67    As we have explained above, a factual distinction such as this does not remove the authority of the approach set out by Mansfield J in SZRSN. It is difficult to see that there was a proper basis for the Federal Circuit Court in MZAEN to distinguish SZRSN.

68    Contrary to the submissions of the appellants in these appeals, and contrary to the apparent approach taken by the Federal Circuit Court in MZAEN, there is no difficulty reconciling the position we have explained in these reasons with what was said by the Full Court in SZQOT, in particular at [63]-[65] (Nicholas J) and at [77] (Yates J). That case concerned the meaning of persecution for the purposes of the Refugees Convention as then defined in s 91R of the Migration Act, and the first respondent’s claim to fear persecution if he were removed back to Iraq, and his wife and child could not join him. The uncontested facts were that the first respondent was a Shia Muslim from Iraq and his wife was a Thai woman of Sunni Muslim faith. Iraqi citizens were prohibited from entering Thailand, and the first respondent’s wife did not want to live in Iraq because she had suffered discrimination and harassment there. The Full Court’s decision relevantly turned on whether the decision-maker had considered if the first respondent’s separation from his wife and child could constitute persecution. Plainly, it was not the separation in itself which could constitute persecution: it was the existence of discrimination and harassment in Iraq, by State actors or non-State actors, which meant the first respondent’s wife could not join him there. Justices Nicholas and Yates indicated the claim was arguable, but the basis on which that appeal ground succeeded was the failure by the decision-maker to consider an integer of the first respondent’s claim.

69    It is clear enough from Nicholas J’s observations at [64] that his Honour’s focus was on the decision-maker’s failure to assess how the first respondent might be treated in Iraq, and whether he would be subject to:

… widespread discrimination [by Iraqi authorities or non-State actors] against couples on racial or religious grounds [which] made it impossible for the husband to live with his wife without fear of them being harassed.

70    Some care would need to be taken in how any proposition was expressed that the circumstances in SZQOT could unequivocally constitute persecution of the first respondent husband for the purposes of the Refugees Convention. Nevertheless, since the basis of the Full Court’s decision on that ground was the failure of the decision-maker to consider an integer of the first respondent’s claim, that matter need not be taken any further. On any view, the claim as put by the first respondent in SZQOT was quite different to the one being considered on these appeals. It was never suggested by CAC19 that he would be subject to any ill-treatment by Nigerian authorities, or non-State actors, because he was living in Nigeria without his wife and children, or because he had daughters of a mixed race. There is no analogy at all because, as we have explained, CAC19 did not identify any future treatment of him in Nigeria which could constitute the act or omission leading to one or more of the five categories of harm in s 36(2A) and thus to s 36(2)(aa) being engaged.

The additional ground in CAC19 in relation to Decree 33

71    At [72] of its reasons, the Tribunal accepted CAC19’s convictions for drug offences in Australia meant that he would “fal[l] within the provisions of Decree 33”. The issue it raised with CAC19 at the review hearing was that, in its opinion, although the law existed, the independent information before the Tribunal indicated that Decree 33 has not been enforced since 2005 and that the Nigerian Ministry of Justice has indicated there would be no further prosecutions under the law until its repeal: see [73] of the Tribunal’s reasons. At [76], the Tribunal concluded that because the “independent information” suggested the law has not been enforced since 2005, and because Nigerian authorities had positively stated they had no intention to enforce the law, there was no “real risk” of the law being enforced against the appellant and therefore the appellant did not face a “real risk” of significant harm on account of being “charged, convicted and punished” under Decree 33.

72    The appellant contends that in making these factual findings, the Tribunal ignored country information to a different effect. The appellant referred to country information relied on by the differently constituted Tribunal which had made protection findings in favour of his eldest daughter in November 2010, including a finding (at [66] of that earlier Tribunal’s reasons) that the eldest daughter:

… may become an abandoned child in Nigeria because it is likely that she will not have the support of her father there because of him being imprisoned for a substantial period due to his Australian drug related criminal record …

73    That country information was a UK Home Office report which included the following, quoted at [19] of the appellant’s written submissions (and found at [47] of the Tribunal’s reasons in the eldest daughter’s review):

… officials with the Nigerian Federal Minister of Justice participating in interviews conducted in 2005 reasserting (sic) that Nigerians returning to Nigeria having been convicted overseas of drug offences ‘could face being tried and sentenced again on return to Nigeria[. The official] went on to state that drug offences are being punished sternly in Nigeria [adding]: ‘if Nigerian law provides for an additional sentence it will take place.’

74    The appellant also referred to country information which was before the delegate in support of CAC19’s protection visa application, and to which the delegate referred, but the Tribunal did not. The relevant part of the delegate’s reasons was as follows:

Nigerians appealing deportation from the United States of America for criminal offences in 2010 gave evidence that Decree 33 was still in operation in Nigeria, a claim which was generally accepted by the Third Circuit Court of Appeal, supported by the US State Department. DFAT reported in April 2012, however, that:

“The NDLEA advised that since 1999 the courts have given deliberately low sentences such as 2-3 months imprisonment to convey their objection to Decree 33. Since 1 April 2003, no repatriated Nigerian nationals have been prosecuted under Decree 33.”

(Original emphasis and footnotes omitted.)

75    The appellant emphasised that this part of the delegate’s reasons referred to a finding in a United States Court in 2010 that Decree 33 was “still in operation”.

76    However, the delegate’s ultimate finding should be noted:

Based on the foregoing evidence, I am not satisfied that there is any clear or reliable contradiction of DFAT’s advice of February 2013 that no repatriated Nigerian nationals have been prosecuted under Decree 33 since 2003. Many countries have laws on their statutes which are no longer applied. I consider this to be the situation as it pertains to Decree 33 in Nigeria. I rely on DFAT’s advice. DFAT is the expert agency of the Australian Government with respect to the professional and impartial collection, interpretation and reporting of information in relation to providing in-country situation reports. For that reason I accept DFAT’s advice. Consequently I am not satisfied that the applicant has a real chance of being prosecuted under Decree 33 if he were returned to Nigeria.

77    The predictive exercise involved in forming a state of satisfaction as to the well-foundedness of a visa applicant’s expressed fear of returning to her or his country of nationality was described by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [32]-[38]. Included in that exercise is, as the Court said at [37], an assessment and determination of what might happen to a visa applicant if she or he were returned to her or his country of nationality at the point in time the review decision is made, and what might happen in the near future thereafter. The Court emphasised the importance of the decision-maker examining the most recent country information, which was the most likely to give it an accurate picture of the circumstances in the country to which the visa applicant would be returned.

78    While it is true that the Tribunal conducting CAC19’s review did not refer to the 2010 United States Court decision information, and did not refer to the passage on which the differently constituted Tribunal in the appellant’s daughter’s review relied, we are satisfied the Tribunal performed its task as authorities of this Court such as MZYTS say it should. Paragraphs 36-37 of the Tribunal’s reasons refer to a report from the Country of Origin Information Services Section (COISS) of the Department of Immigration and Border Protection dated 26 May 2016 containing information on whether Decree 33 was being enforced against returned Nigerians. That was confirmed to be the most recently available information in a communication from COISS to the Tribunal on 18 January 2017 (recalling the Tribunal’s decision was made on 15 February 2017):

The following is provided from a report of the Country of Origin Information Services Section (COISS) of the Department of Immigration and Border Protection date 26 May 2016:

What are the punishments under Decree 33 for persons convicted of drug offences outside of Nigeria, upon their return to Nigeria?

Reports indicate that those convicted of drug offences outside of Nigerian may face additional charges upon returning to Nigeria under ‘Decree 33’ of 1990. The Department of Foreign Affairs and Trade (DFAT) advised in 2014 that while ‘Decree 33’ remains in force, ‘[t]echnically this is no longer a decree (a military era term) but formally incorporated into the National Drug Law Enforcement Agency Act, Section 22’. According to the National Drug Law Enforcement Agency Act under Section 22(3), the minimum sentence a person may face upon return is five years imprisonment and forfeiture of assets and properties. However, the Nigerian government has rarely given effect to the Decree and according to DFAT, the last known application was in 2005.

Section 22 of the National Drug Law Enforcement Agency Act states:

Offence, of Exportation of Narcotic Drugs etc.

1. Any person whose journey originates from Nigeria without being detected of carrying prohibited narcotic drugs or psychotropic substances, but is found to have imported such prohibited narcotic drugs or psychotropic substances in to a foreign country, notwithstanding that such a person has been tried or convicted for any offence of unlawful importation or possession of such narcotic drugs or psychotropic substances in that foreign country. Shall be guilty of an offence of exportation of narcotic drugs or psychotropic substances from Nigeria under this subsection

(1990 No.33, 1992 No.15)

2. Any Nigerian Citizen found guilty in any foreign country of an offence involving narcotic drugs or psychotropic substances and who thereby brings the name of Nigeria into disrepute shall be guilty of an offence under this Subsection

(1990 No. 33)

3. Any person convicted of an offence under subsection (1) or (2) of this section shall be liable to imprisonment for a term of five years without an option of a fine and his assets and properties shall be liable to forfeiture as provided under this Act.

(1990 No.33).

Similarly, the 2015 DFAT country report on Nigeria advises that Nigerians returning to the country with a criminal record may face a minimum of five years imprisonment:

Nigerian citizens returning from overseas with a criminal record may be charged under Decree 33 (the Decree) of the National Drug Law Enforcement Agency Act 1990. The Decree provides for the prosecution of Nigerians returning to Nigeria with criminal convictions from overseas - including those with drug convictions and other serious crimes including money laundering, fraud, armed robbery and rape. The minimum sentence under Decree 33 is five years imprisonment.

Are there any recent reports (particularly in the last two years) of persons convicted of drug offences outside of Nigeria, being prosecuted on return to Nigeria under Decree 33? If yes, please provide information on the punishment they received and where any jail time was served.

No recent reports were found indicating that persons convicted of drug offences outside of Nigeria had been prosecuted on return to Nigerian under Decree 33.

A 2008 British-Danish fact-finding mission to Nigeria interviewed senior officials of the Nigerian National Drug Law Enforcement Agency (NDLEA) about the enforcement of Decree 33. According to the NDLEA officials, ‘Decree 33 had been enforced from 1990 to 2000’. While no information was available regarding the number of prosecutions and convictions from 1990 to 1995, NDLEA statistical information indicated that from 1996 to 2000 451 Nigerians had been prosecuted and convicted under the provisions of Decree 33. According to NDLEA officials, ‘these individuals has been prosecuted and convicted for “bringing the name of Nigeria into disrepute” by being convicted of a drugs offence abroad’, rather than for ‘committing the drugs offence itself’.

Advice provided by DFAT in 2014 and 2013 states that since 2003 there have reportedly been no prosecutions under Decree 33. In advice provided in 2014, DFAT noted that the ‘[l]aw has not been enforced since 2003, and that cases are no longer prosecuted’. DFAT also reported that a ‘western European Embassy has received a statement from the Ministry of Justice stating that this will remain the case until the Decree 33 / NDLEA Act Section 22 is repealed’. No information was found indicating that Decree 33 has since been repealed.

In its 2015 country report on Nigeria, DFAT states that in regard to Decree 33, ‘credible sources advised DFAT that the Nigerian government has rarely given effect to the Decree’. DFAT advised that ‘the most recent application DFAT is aware of was in 2005’.

On 18 January 2017 COISS advised the Tribunal, for the purpose of this decision, that research had not found any more recent reports of prosecutions under Decree since the May 2016 report.

(Original emphasis and footnotes omitted.)

79    It was this information upon which the Tribunal relied subsequently at [74]-[75] to reject the appellant’s contention that Decree 33 was being enforced “unbeknownst to independent observers, because the Nigerian authorities want to hide enforcement of the law”. That was a finding of fact for the Tribunal to make, and it did so having sought out specific country information about Decree 33 through COISS, as recently as a month before its decision.

80    There is therefore no error disclosed in the approach taken by the Federal Circuit Court at [18]-[19] of its reasons. This ground fails.

The additional ground in GLD18

81    This is a new ground, for which the appellant needed leave to raise for the first time on this appeal. The Minister did not oppose leave being granted, and on that basis, and since the ground was fully argued in writing prior to the hearing of the appeal, we are satisfied it is appropriate to grant the appellant in GLD18 leave to raise this new ground.

82    The Tribunal found at [24]-[25] of its reasons:

The Federal Court has confirmed that the definition in s.36(2A) is framed in terms of harm suffered because of the acts of others. It does not encompass harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to the receiving country. For the same reasons it would not encompass self-harm.

Any harm the applicant will suffer as a result of mental illness will not be harm that is suffered as a result of the act on another person. For this reason, I find that the applicant’s mental health does not constitute significant harm for the purposes of complementary protection.

(Footnote omitted.)

83    Counsel for the appellant contended that there was material before the Tribunal indicating the appellant would suffer mental harm, and that there was a risk he would engage in self-harm.

84    Accordingly, the appellant contends, first, that the Tribunal erred in concluding s 36(2A) “does not encompass harm arising from mental illness or harm” when the Migration Act expressly incorporates mental harm. We pause here to note the way the Act does this is in the definition of one of the five categories of significant harm in s 36(2A), namely, cruel or inhuman treatment or punishment: see the extract at [29] above.

85    The appellant then also contends that the Tribunal erred in applying the decision of this Court in CSV15, which he contends is wrong. A subsequent decision of this Court in CHB16, which applied CSV15, is also contended by the appellant to be wrong, for the same reasons. Those reasons are expressed in [50] of the appellant’s written submissions:

It can be accepted that the Tribunal and Courts are right to state that the only harm of concern to s 36 is harm perpetrated by others – the harm covered by s 36(2)(aa) is defined by reference to what the protection claimant ‘will be subjected to’ and what will be ‘inflicted on’ that person. However, it does not follow that the manifestations of mental harm (such as physical self-harm) also require separate input by others to be covered by s 36. To suggest otherwise is to apply a synthetic lens to the complexity of human conduct. ‘Human conduct is rarely, if ever, unidimensional.’ When physical self-harm is the result of mental harm by others it is, for the purposes of the Act, ‘significant harm’. To the extent to which CSV15 or CHB16 state otherwise, those judgments are plainly wrong.

(Footnotes omitted.)

86    The appellant contends that the Tribunal failed to engage with the evidence about how devastated he was at his infant son’s death, including the appellant’s statement in a written submission to the Tribunal that:

[A]fter losing a child already, this situation is causing me great heartache. If this resulted in permanent separation from my daughter, I have no doubt that I would be at extreme risk of significant mental harm.

87    Even adopting the appellant’s own approach to the operation of s 36(2A), it is difficult to understand how this evidence is said to establish there were substantial grounds for believing that, on return to the United Kingdom, the appellant would be subjected to cruel or inhuman treatment or punishment, by reason of the intentional infliction of mental pain or suffering on him. It remains unclear who “the others” who the appellant appears to accept must intend to inflict this mental harm, might be.

88    In CHB16 at [65]-[66], the Court said:

Thirdly, on the same assumption as immediately above and for the following reasons, I do not consider self-inflicted harm constitutes “harm” for the purposes of ss 36(2)(aa) and 36(2A). In CSV15, one of the appellant’s claims was “that she would not survive in India because she suffered from depression and was suicidal” (CSV15 at [8]). Collier J concluded that this form of harm did not fall within the concept of “serious harm” under ss 36(2)(a) and 91R of the Act, then in force, or “significant harm” under ss 36(2)(aa) and 36(2A) (CSV15 at [30] and [34] respectively). The crux of her Honour’s reasoning was that both forms of harm referred to “acts perpetrated by others which cause[d] the non-citizen to suffer harm” (emphasis in original). In relation to s 91R, her Honour considered this conclusion was supported by the provisions of subsections 91R(1)(c) and 91R(2). She said (at [30]):

… the concepts of “persecution” and serious harm as detailed in s 91R of the Act indicated that the concern of Parliament is with acts perpetrated by others which cause the non-citizen to suffer harm. So much was also clear from s 91R(1)(c), which required systematic and discriminatory conduct. And although it is a non-exhaustive list of what constitutes “serious harm”, s 91R(2) of the Act included a list of actions that could be perpetrated against the non-citizen by another person.

(Emphasis in original)

In my view, these conclusions, with which I respectfully agree, apply with even more force to the conduct and harm described in s 36(2A) of the Act.

89    In our respectful opinion, there is nothing erroneous in the Court’s statements in these paragraphs, nor in the passage extracted from CSV15. Both are faithful to the statutory text of s 36(2)(aa), read with s 36(2A) and the definitions in s 5(1), and with the purpose of this protection visa criterion. This visa criterion is not a general humanitarian visa criterion; it is not designed to protect visa applicants from all harm, in all circumstances.

90    It can be accepted that there may be circumstances where a visa applicant claims she or he will be subjected to cruel or inhuman treatment or punishment through the intentional infliction of mental harm in a receiving country. The intentional imposition of a relentless regime of solitary confinement comes to mind as one possible example. It can be accepted that the infliction of such mental harm may cause a person to engage in self-harm. However, it is the subjection of the person to mental harm by way of solitary confinement which engages the protection afforded by s 36(2)(aa), read with s 36(2A) and the definitions in s 5(1). The real risk of self-harm may render the infliction of pain and suffering more severe, but in this example, it is the infliction of the mental harm which is critical to the satisfaction of the visa criterion in s 36(2)(aa).

91    This ground fails.

Conclusion

92    Each appeal must be dismissed. There is no basis for anything but the usual orders as to costs. Costs are to be fixed by way of a lump sum, and to be determined by a Registrar in the absence of any agreement between the parties.

Associate:

Dated:    5 February 2020

REASONS FOR JUDGMENT

SNADEN J:

93    Both of these appeals concern the so-called “complementary protection” criterion for which s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”) provides. Each appellant asserts that he satisfies that criterion, that he ought to have been granted a protection visa on that basis, and that the second respondent in each appeal (hereafter, the “Tribunal”) committed jurisdictional error when it decided otherwise. In separate judgments, the Federal Circuit Court of Australia (the “FCCA”) dismissed applications for judicial review of those decisions (hereafter and collectively, the “Tribunal Decisions”) and, by these appeals, each appellant maintains that it was wrong to do so. In each case, it is said that the relevant Tribunal Decision was the product of jurisdictional error.

94    I reject that contention in each case. I agree with the orders proposed by the majority and, subject to the observations made below, with the reasons for which their Honours propose them. I gratefully adopt, in particular (and, again, subject to the observations made below), what their Honours have said about the correctness of this court’s judgment in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (Mansfield J). Any harm that the appellants stand to endure in the form of separation from family (and, in GLD18’s case, from the grave of his deceased son) will not be harm that arises from an act or omission to which either of them might be subjected upon his removal from Australia. It is, as the majority notes, harm that arises merely because he is to be removed. The Act does not contemplate that harm of that kind might suffice to qualify an applicant for complementary protection.

95    The additional observations that I wish to record are peculiar to GLD18’s appeal. Hereafter, references to “the appellant” should be read as references to the appellant in that appeal, and references to the Tribunal Decision should be read as references to the Tribunal Decision that was the subject of that appeal.

96    Section 36(2)(aa) of the Act provides as follows:

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

…

(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; …

97    Section 36(2A) identifies the circumstances in which the Act recognises that a “non-citizen will suffer significant harm”. It provides 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.

98    By his application for a protection visa, the appellant sought to invoke subparagraph (d) of s 36(2A). Section 5 of the Act defines what is covered by “cruel and inhuman treatment or punishment” relevantly as follows:

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;

…

99    Stitching together the relevant definitions, the success of the appellant’s visa application turned upon whether the first respondent had substantial grounds for believing that “…as a necessary and foreseeable consequence of [the appellant] being removed from Australia to [his native Scotland], there [was] a real risk that…[he would] be subjected to…an act or omission by which…pain or suffering, whether physical or mental, [would be] intentionally inflicted upon [him]”. Additionally, the appellant needed to demonstrate either that the relevant pain or suffering would be “severe”, or that the act or omission by which it would be imposed reasonably qualified as cruel or unusual in nature.

100    To that end, the appellant contended before the Tribunal that his removal from Australia would visit upon him harm of the requisite kind because of (amongst other things) the damaging impact that separation from his daughter and his deceased son’s grave would wreak upon his mental health.

101    In considering that submission, the Tribunal made the following observations (references omitted):

24.    The Federal Court has confirmed that the definition in s.36(2A) is framed in terms of harm suffered because of the acts of others. It does not encompass harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to the receiving country. For the same reasons it would not encompass self-harm.

25.    Any harm the [appellant] will suffer as a result of mental illness will not be harm that is suffered as a result of the act o[f] another person. For this reason, I find that the [appellant]’s mental health does not constitute significant harm for the purposes of complementary protection.

102    Those observations find a measure of support in decisions of this court: CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (Collier J) and CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 (Reeves J). The appellant submitted that the reasoning employed by the Tribunal in the passage above, and by this court in the authorities just referenced, is wrong and urged the court as presently constituted to reject it.

103    With respect to those who think otherwise, I would be slow to conclude that “significant harm” extends no further, conceptually, than to harm that a visa applicant might endure at the hands of others. It might well be that an applicant could, for want of adequate mental health, subject him or herself to the sort of harm upon which complementary protection is premised. If, for example, there was a basis for thinking that a visa applicant, upon (and because of) his or her removal from Australia, would be inclined to self-harm, and that that inclination might extend to or beyond the standard of “cruel or inhuman treatment or punishment” (perhaps because it involved the intentional self-infliction of severe pain), there is no obvious reason why that might not qualify as a risk of the kind to which s 36(2)(aa) of the Act is directed.

104    That is not, though, an analysis upon which it is here necessary to embark. Although the appellant sought to make much of the impact that his removal from Australia would likely visit upon his mental health, there was nothing in the evidence to suggest—and no submission was advanced before the Tribunal—that any such mental health impact would include the prospect of self-harm, let alone self-harm sufficient to visit “severe pain or suffering” (or to otherwise constitute “cruel or inhuman treatment or punishment”). There was nothing before the Tribunal that suggested that the appellant might harm himself if removed from Australia, nor that he had done so during past periods of poor mental health. Indeed, there was evidence before the Tribunal that tended to suggest that the appellant was not liable to attempt self-harm. In a statutory declaration that he provided in support of his visa application, the appellant said that he was “well in-control [sic] of [him]self”. An October 2017 medical report that was also before the Tribunal stated that “…apart from a period of mental instability subsequent to the death of his infant son in January this year, [the appellant] has no mental health issues”, that the appellant “…denied feeling suicidal or engaging in self-harm” and “…now feels completely normal”, and that the appellant “…stated that his son’s death led to a period of grief and depression but that he is not dysthymic in nature [and] does not suffer anxiety”.

105    In any event, the appellant appeared to accept—perhaps generously—that “significant harm” could not be self-inflicted (although, with respect, his submissions on that front suffered from at least a degree of internal inconsistency). The core of the appellant’s case was that his removal from Australia would devastate him and that that devastation would sound in severe mental pain or suffering of the sort contemplated by the legislative definition of “cruel or inhuman treatment or punishment”. As Mansfield J held in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751, harm in that form cannot amount to “significant harm” for the purposes of s 36(2)(aa) of the Act because it is not the product of an act or omission to which an applicant might be subjected upon removal from Australia. That being the case, even assuming that the Tribunal’s reasoning (above, [101]) involved some misunderstanding of the legislative scheme—as, to be clear, I think that it might have—any error on its part was immaterial to the end result.

106    The Tribunal’s conclusion that the appellants did not satisfy the complementary protection criterion for which s 36(2)(aa) of the Act provides was not, in either case, the product of jurisdictional error. The FCCA was correct (in each case) so to conclude.

107    Both appeals should be dismissed with costs.

Associate:

Dated:    5 February 2020