Federal Court of Australia
BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
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 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.
THE COURT:
Introduction
1 The principal issue raised by this appeal is whether the “complementary protection” provisions in the Migration Act 1958 (Cth) are capable of application where an applicant for a protection visa claims that he or she will suffer psychological harm if returned to his or her home country on the basis of an act that occurred in the past in the home country.
2 The appellant, a citizen of Fiji, first arrived in Australia in 2000 as the holder of a Subclass 101 (Child) visa, at the age of 14. He subsequently returned to live in Fiji with his father for about one year – the appellant’s mother and siblings remained in Australia. The appellant returned to live in Australia in about 2003 and has resided here since that time.
3 Between August 2006 and December 2013, the appellant was convicted of a series of criminal offences involving dishonesty, assault, robbery and the hindering of police investigations. After two suspended sentences had been handed down, the appellant was sentenced to two years’ imprisonment in 2013.
4 The appellant was sent a notice of intention to cancel his visa, after which his Subclass 101 visa was cancelled pursuant to s 501 of the Migration Act on 12 August 2015.
5 On 8 September 2015, the applicant applied for a protection visa. A delegate of the first respondent (the Minister) refused the application for a protection visa on 19 October 2015.
6 The matter has had a lengthy and complicated procedural history, as detailed below. That history includes three decisions of the Administrative Appeals Tribunal (the Tribunal) and a number of judgments of the Federal Circuit Court of Australia and this Court.
7 The present proceeding is an appeal from a judgment of the Federal Circuit Court dated 7 May 2020 (BVT20 v Minister for Immigration & Anor [2020] FCCA 1075), by which it dismissed an application for judicial review of a decision of the Tribunal dated 6 September 2019, being the third Tribunal decision relating to the appellant’s application for a protection visa (the Third Tribunal Decision).
8 As detailed in the Tribunal’s reasons dated 6 September 2019, the appellant’s claims for protection related to an incident that he alleged took place while he was living in Fiji in 2002. The applicant claimed that, while he was making his way home from school along a bush track, he came upon three persons attacking a fourth individual who was on the ground. One of the attackers was an older man in military uniform. He was the main protagonist. He was accompanied by two others who were soldiers. The fourth man’s throat was cut by a machete and the appellant witnessed this. After this, the main protagonist, who was armed with a machete, threatened the appellant. His wallet and identity card were taken from his school bag. They read the card and did not return the card or the wallet. The main protagonist said words to the effect, “go, don’t say anything and don’t ever come back”. In his statement, the appellant said that the main protagonist stated that if the appellant said anything he would be killed.
9 The appellant’s account of this incident was accepted by the Tribunal. However, the Tribunal rejected the appellant’s claims to protection based on the refugee criterion and the complementary protection criterion in s 36(2) of the Migration Act. In relation to the refugee criterion, the Tribunal was not satisfied that there was a real chance that the appellant would face physical harm by the military person who originally threatened him or any associate of this person, if the appellant returned to Fiji. Insofar as the appellant relied on psychological harm, the Tribunal accepted that there was a real chance the appellant would suffer psychological harm on his return to Fiji because of his long-held fear and possible post-traumatic stress, but found that this did not engage the refugee criterion on the basis that psychological harm that was attendant on a threat made years previously, albeit in the receiving country, was not persecution in the receiving country for the purposes of the relevant provisions. In relation to the complementary protection criterion, the Tribunal was not satisfied that there was a real risk that the appellant would suffer significant harm within the meaning of the relevant provisions. In the Tribunal’s view, to engage that criterion, there needs to be an act or omission in the receiving country, and the significant harm cannot be constituted by an act in the past, or the future consequence of an act in the past.
10 In dismissing the appellant’s application for judicial review of the Third Tribunal Decision, the Federal Circuit Court endorsed the Tribunal’s views regarding the requirements to establish significant harm for the purposes of the complementary protection criterion.
11 The appellant’s contentions on appeal may be summarised as follows:
(a) First, the appellant contends that the Federal Circuit Court erred by failing to hold that the Tribunal erred by failing to apply an earlier judgment of the Federal Circuit Court (ground 1). The earlier judgment was a judgment of Judge Riley dated 12 October 2018, in which her Honour allowed an application for judicial review from a decision of the Tribunal dated 12 July 2016, being the second Tribunal decision in relation to the appellant’s application for a protection visa (the Second Tribunal Decision). Judge Riley set aside the Second Tribunal Decision and remitted the matter to the Tribunal for “determination according to law”. The appellant contends that, in the course of her judgment, Judge Riley decided that the complementary protection provisions could apply where a person will suffer the consequences of a past act, and the Tribunal was bound to apply that decision (particularly in circumstances where the Minister did not appeal from the judgment of Judge Riley).
(b) Secondly, the appellant contends that the Federal Circuit Court erred by failing to hold that the Tribunal erred by failing to apply the criteria set out in s 36(2) of the Migration Act, namely by erroneously concluding that “the future consequence of an act in the past” is insufficient to make out a protection claim under s 36(2) (grounds 2, 3 and 4).
(c) Thirdly, the appellant contends that the Federal Circuit Court erred by failing to hold that the Tribunal erred by failing to apply the statutory test for refugee protection, namely by assuming irrational behaviour by the murdering military official in its assessment of the future risk of physical harm to the appellant (ground 5).
(d) Fourthly, the appellant contends that the Federal Circuit Court erred by failing to conclude that the Tribunal’s decision was infected by jurisdictional error by reason of an alleged breach of s 91X of the Migration Act by this Court in a judgment relating to the appellant (ground 6).
12 For the reasons that follow, each of the appellant’s grounds should be dismissed.
Background facts
13 In addition to the background facts set out above, the following facts and matters are noted.
14 On 8 September 2015, the appellant applied for a protection visa. In his application, the appellant stated (in response to a question as to what he thought would happen to him if he returned to the country in respect of which he sought protection) that: “I don’t feel safe at all because I’m afraid I’ll be killed”. The appellant did not provide any further details as to his fear of harm if he returned to Fiji in the application.
15 On 19 October 2015, a delegate of the Minister refused the appellant’s application for a protection visa.
16 On 1 December 2015, the Tribunal affirmed the delegate’s decision. This decision was subsequently set aside by consent by the Federal Circuit Court.
17 On 12 July 2016, the Tribunal made the Second Tribunal Decision, by which it affirmed the delegate’s decision. It is necessary to set out some detail about this decision to provide context for the subsequent judgment of Judge Riley. The Tribunal noted at [10] of its reasons that the appellant had provided very limited information as to why he could not return to Fiji in his protection visa application. The Tribunal provided, at [11], a summary of the evidence that the appellant had given to the previous Tribunal. On that earlier occasion, the appellant had stated that “he could not return to Fiji” and “if he has to go back it’s pretty much his head”, but had not provided any detail. At [19] and following, the Tribunal described the evidence given by the appellant during the second Tribunal hearing. It was at this hearing that the appellant described, for the first time, the incident in which he witnessed a murder. The appellant stated to the Tribunal, and the Tribunal accepted at [20], that the appellant had never before disclosed this information. In the course of its reasons, the Tribunal stated that the man who carried out the killing and threatened the appellant must have been an “important” man, as he had bodyguards, but the Tribunal did not refer to him as a military person and did not refer to the other two men as soldiers.
18 At [49] of its reasons, the Tribunal accepted that the appellant was a witness to a murder in 2002, and that he was threatened by the man who carried out the killing. The Tribunal accepted that the appellant was a witness of truth. However, the Tribunal concluded, at [50], that the appellant did not have a well-founded fear of persecution. The Tribunal set out several reasons for this conclusion, including (at [53]) that the appellant’s family had never been contacted by anyone arising out of this event. At [62], the Tribunal stated that it did not accept that the threat made in 2002 by the unknown man “has any basis in fact in 2016”. The Tribunal stated that it considered the claim that the appellant would be harmed by the man “to be mere speculation, and not one that could be considered a real chance or real risk of occurring”. The Tribunal concluded, at [70], that it was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(a). The Tribunal, at [71], reached the same conclusion (implicitly for the same reasons) in relation to the complementary protection criterion in s 36(2)(aa). It therefore affirmed the delegate’s decision not to grant the appellant a protection visa.
19 The appellant applied to the Federal Circuit Court for judicial review of the Second Tribunal Decision. The application for judicial review was heard by Judge Riley. The appellant relied on three grounds of review. Of these, the first two grounds succeeded and the third did not.
20 The first ground of review was:
The Tribunal erred by failing to take into account a relevant consideration or failed to ask the right question, namely whether the real risk of mental (not physical) harm occasioned by the threat to kill made to the Applicant by the killer he witnessed could amount to significant harm for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth).
21 In support of this ground, the appellant submitted that the mental harm that the threat of death would cause the appellant if he returned to Fiji constituted significant harm, and that the Tribunal had erred by failing to consider this aspect of his claims.
22 In response to the first ground, the Minister made three submissions. The Minister’s first submission was that the applicant had never claimed at the hearing before the Tribunal that he would suffer severe mental pain or suffering and therefore the Tribunal did not need to consider the issue. The Minister also argued that the issue did not squarely arise from the materials. Judge Riley rejected this submission. Her Honour held that the appellant had claimed that he would suffer mental harm if he returned to Fiji and, in any event, the issue arose from the materials and the facts found by the Tribunal: see Judge Riley’s judgment at [18]-[22].
23 The Minister’s second submission in relation to ground 1 was that the definition of significant harm is forward-looking and requires the cruel or inhuman act to occur in the future. Judge Riley identified the question that arose as being: “whether it would be sufficient for the applicant to face a real chance of harm in the future, namely, severe mental pain or suffering, as a result of actions in the past, namely, a gruesome murder in the applicant’s presence and a threat to kill him if he returned to Fiji” (at [24]). After noting the appellant’s submission that the act causing the harm could occur in the past, provided that the harm itself occurred in the future, Judge Riley reasoned as follows:
26. Paragraph 36(2)(aa) of the [Migration Act] requires that, relevantly:
... 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. That provision obviously requires the harm (the severe mental pain or suffering) to occur in the future but says nothing about when the action causing the harm (the threat) must occur.
28. Subsection 36(2A) of the Act relevantly provides that:
A non-citizen will suffer significant harm if ... the non-citizen will be subjected to cruel or inhuman treatment or punishment ...
29. Section 5 of the Act relevantly provides that:
cruel or inhuman treatment or punishment means an act or omission by which ... severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... .
30. Inserting the relevant part of the definition of cruel or inhuman treatment or punishment into s.36(2A) of the Act makes that provision read:
A non-citizen will suffer significant harm if ... the non-citizen will be subjected to an act or omission by which ... severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ...
31. Inserting that statement into paragraph 36(2)(aa) of the Act would make the provision read:
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 be subjected to an act ... by which ... severe pain or suffering, whether physical or mental, is intentionally inflicted on a person …
32. It seems to me that a person will be subjected to an act in the future if the person suffers the consequences of the act in the future, even if the act itself is in the past. For example, a person going to Chernobyl next week will be subjected to an act (consisting of a nuclear meltdown that occurred over three decades ago) by which pain or suffering (in the form of high levels of radiation) is inflicted on the person next week.
33. Even if I am wrong about that, it seems to me, applying the Project Blue Sky [v Australian Broadcasting Authority (1998) 194 CLR 355] principles, that the Parliament must have intended to give complementary protection for future harm suffered in consequence of past actions. There is no conceivable policy reason to carve out from the complementary protection regime future harm that was caused by actions that occurred in the past. Consequently, I do not accept the Minister’s second argument on ground 1.
24 The Minister’s third argument on ground 1 was that the Tribunal in fact did consider whether the appellant would suffer future mental harm if he returned to Fiji, in the sense that the Tribunal made findings of greater generality that subsumed the issues concerning future mental harm. Judge Riley rejected this submission (at [35]-[43]). Accordingly, Judge Riley concluded that ground 1 was made out.
25 The second ground of review was:
The Tribunal erred by failing to take into account evidence of significance, namely that the killer was associated with the army.
26 It was submitted on behalf of the appellant that, in his evidence to the Tribunal, the appellant had said that the murderer was a military or army man, and the Tribunal had made a jurisdictional error by failing to consider this claim. The appellant gave oral evidence in the judicial review proceeding before Judge Riley to the effect that he had said this in his evidence before the Tribunal. Judge Riley noted that it was not disputed that the Tribunal did not record in its reasons for decision a claim that the murderer was a military or army man. Her Honour recorded the Minister’s submission that the Court should not accept that the appellant had given such evidence before the Tribunal. In her reasons for judgment, Judge Riley undertook a careful analysis of the transcript of the Tribunal hearing and indicated that she had listened to the audio recording of that hearing. Her Honour stated that there were some points (labelled as “indistinct” in the transcript) where it was possible that the appellant had said that the murderer was a military or army man. Her Honour referred to the appellant’s oral evidence in the judicial review proceeding and stated at [99] that she found the appellant’s evidence to be credible. Her Honour accepted that the appellant did tell the Tribunal that the murderer was a military or army man. As the Tribunal had not considered this claim, Judge Riley concluded that it had made a jurisdictional error. Ground 2 was therefore made out.
27 The third ground of review was:
The Tribunal erred by failing to apply the statutory test for refugee protection, namely by taking into account irrational behaviour by the perpetrator in its assessment of the future risk of harm to the Applicant.
28 This ground concerned [24] and [53] of the Tribunal’s reasons, in which the Tribunal had regard to the fact that the appellant’s family in Fiji had never been approached. The appellant submitted that “it would have been completely irrational for the murderer to approach the applicant’s family in Fiji, as the murderer’s objective must have been to maintain his anonymity, and the Tribunal thereby failed in its statutory task” (see Judge Riley’s judgment at [102]). Judge Riley stated, at [105], that she did not accept that it would necessarily have been irrational for the murderer, possibly through underlings, to make discreet inquiries about whether or not the appellant had left Fiji. Consequently, this ground was not made out.
29 The orders made by Judge Riley included an order that the “decision of the Administrative Appeals Tribunal made on 12 July 2016 … be set aside” and an order that the “matter be remitted to the Administrative Appeals Tribunal for determination according to law”.
30 The Minister did not appeal from the judgment of Judge Riley.
The Third Tribunal Decision
31 On 12 March 2019, a hearing took place before the Tribunal (differently constituted) at which the appellant gave evidence and presented arguments. The appellant was represented by his lawyer and registered migration agent, who provided written submissions and documents in support of the application prior to and following the hearing.
32 On 6 September 2019, the Tribunal made the Third Tribunal Decision, by which it affirmed the delegate’s decision not to grant the appellant a Protection (Class XA) (Subclass 866) visa.
33 Having set out certain background matters and summarised the relevant law, the Tribunal outlined the appellant’s claims. As recorded in the Tribunal’s reasons at [27], the appellant claimed that he had a well-founded fear of being persecuted under the refugee criterion in s 36(2)(a) as a member of a particular social group, being a witness to military atrocities, and on the grounds of his actual or imputed political opinion. The Tribunal noted that the harm identified by the appellant was both physical and psychological. As recorded at [28] of the Tribunal’s reasons, the appellant contended that if the Tribunal was not satisfied that the appellant met the refugee criterion, the Tribunal should accept that he faced significant harm, being arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment if he returned to Fiji. The Tribunal noted the appellant’s contention that: this was because there was a real risk that he could be killed or harmed by the individuals involved in the 2002 incident; or, if the Tribunal was not satisfied of this, there was a real risk he would suffer psychological harm from his genuine subjective fear. The Tribunal outlined the issues for determination at [29] as follows:
(1) Does the Tribunal accept the applicant’s claims about the events that are alleged to have taken place in 2002?
(2) If so, does the applicant meet the ‘refugee criterion’ in s.36(2)(a) of the Act? In particular, does he have a well-founded fear of persecution and is this for reasons of him being a member of a particular social group or his actual or imputed political opinion?
(3) If the applicant does not meet the refugee criterion, are there substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Fiji there is a real risk the applicant will suffer significant harm? In particular, is there a real risk he will be killed or harmed by his former assailants or parties associated with them and, if not, is there a real risk he will suffer serious psychological harm and would this harm amount to ‘significant harm’ within the meaning of s.36(2A) of the Act?
34 The Tribunal considered each of these issues in turn. In relation to the first issue, the Tribunal stated that, “[c]onsistent with the findings of the previous Tribunal, on balance, despite some reservations referred to below, we accept the applicant’s claims about the incident he alleges took place in Fiji in 2002” (at [30]). The Tribunal set out, at [32]-[33] and [40], the appellant’s evidence regarding the incident (summarised at [8] above). The Tribunal discussed the appellant’s evidence and had regard to relevant principles concerning the process of fact-finding at [34]-[49]. The Tribunal concluded that it accepted the appellant’s claim that: he witnessed a Fijian military man kill an individual near his father’s house in late 2002; the assailants took his identification card; the main protagonist made threats to him; and since that time, he has been fearful of returning to Fiji.
35 The Tribunal next considered whether the appellant met the refugee criterion. In this section of its reasons, the Tribunal first considered whether there was a real chance of physical harm to the appellant, and then considered psychological harm. In relation to physical harm, the Tribunal discussed country information at [62]-[68] and then considered the evidence relating to the appellant’s case at [69]-[73]. The Tribunal stated at [72] that to be satisfied that there was a real chance of persecution by the military official who originally threatened the appellant or by any associates of the main protagonist, the Tribunal would need to be satisfied that there was a real chance that the main protagonist was still alive or in Fiji, that he would be concerned about the appellant returning and reporting him to law enforcement agencies, that the main protagonist holds a position of power or influence in the military or with the government and would seek to use that influence (or the sense of impunity) to harm the appellant, and that the appellant would not be protected by the state. The Tribunal concluded, at [73], that it was not satisfied of these matters. Among several factual or evidentiary matters relied on by the Tribunal, the Tribunal stated that there “is no evidence that the main protagonist was sufficiently concerned that he subsequently made threats or even enquiries of the applicant’s family in Fiji”. The Tribunal noted that, in fact, the evidence was to the contrary. The Tribunal concluded (in relation to the risk of physical harm) at [74]:
In conclusion, we are not satisfied that there is a real chance the applicant will face physical harm by the military person who originally threatened him or any associates of this person, if he returns to Fiji. We accept the applicant has a fear of persecution through physical harm or threats by the military person but we are of the view that the risk the applicant will face physical harm, while understandable because it is grounded on a long held fear starting when the applicant was a teenager, is mere speculation. There has been a period of relative stability since 2014 and, as noted, DFAT reports that Fiji is “generally stable and secure”. The police and military are well resourced and maintain control over the country. We are not satisfied that there is a real or substantial basis for this fear at this time in relation to events that occurred 17 years ago.
36 In the second part of its reasons relating to the refugee criterion, the Tribunal considered the appellant’s claim concerning psychological harm. The Tribunal accepted that there was a real chance the appellant would suffer psychological harm on his return to Fiji because of his long-held fear and possible post-traumatic stress (at [76]). The Tribunal also accepted that such harm could be characterised as serious harm within the meaning of s 5J(5) of the Migration Act. However, the Tribunal was of the view that this did not engage the refugee criterion for the purposes of s 36(2)(a) (at [77]). The Tribunal reasoned that “persecution is forward looking, given the use of the phrase ‘would be persecuted’ in s 5J(1)(b) of the Act” (at [78]). The Tribunal noted that in the appellant’s case it was alleged that the refugee nexus was a well-founded fear of persecution for reasons of the appellant’s membership of a particular social group, and then stated at [80]:
If an applicant is able to establish that there is a real chance psychological harm would be perpetrated in the receiving country as an act of persecution based on one or more of the refugee reasons, this would engage the refugee criterion. However, psychological harm which is attendant on a threat made years previously, albeit in the receiving country, is not persecution in the receiving country. There is no act of persecution, which is implicit in s.5J(1)(b), and any harm arises from the person’s reaction to the previous trauma or threat. Subsection 36(2)(a), together with s.5J, directs attention to a well-founded fear of persecution if the person is returned to the receiving country. It does not focus on persecution in the past, although this may be relevant for a decision-maker in predicting what may happen in the future. Relevantly, the question of whether Australia has protection obligations to a person is to be assessed at the time of the decision by reference to the foreseeable future and not some event in the past.
(Emphasis in original.)
37 Accordingly, the Tribunal rejected this claim.
38 In the next section of its reasons, the Tribunal considered whether the applicant met the complementary protection criterion in s 36(2)(aa). The appellant submitted that this criterion was engaged on three bases. The third basis is not relevant for present purposes and can be put to one side.
39 The first basis relied on by the appellant was that if he returned to Fiji, there was a real risk he would face arbitrary deprivation of life or cruel, inhuman or degrading treatment and punishment through an attack or threats by his former assailants. The Tribunal stated that, for the reasons already outlined, it was not satisfied that there was a real risk of this.
40 The second basis relied on by the appellant related to the psychological harm feared by the appellant. The Tribunal noted at [89] that the appellant conceded that the act of removal, and any psychological harm resulting from this removal, would not engage complementary protection. The appellant submitted that the psychological harm he feared was not attendant upon his removal, but rather his removal to the receiving country where he had previously faced harm and trauma. The Tribunal rejected this basis of the claim because it was “not persuaded that psychological harm attendant on previous trauma engages the complementary protection criterion” (at [90]). The Tribunal noted the appellant’s reliance on the judgment of Judge Riley in the appellant’s case, and set out extracts from her Honour’s judgment. At [93], the Tribunal noted the appellant’s submission that, while s 36(2)(aa) is forward-looking and is directed at the reasonably foreseeable consequences of significant harm constituted by an act by which severe pain or suffering is inflicted, the relevant “act” is not confined to a point in time. The Tribunal stated at [94]:
We accept the applicant’s evidence that he was threatened. We accept the threat was open-ended and could have been construed to be continuing. We also accept the applicant has a long held and fear of returning to Fiji and he may face further psychological harm if he returns. There is evidence the applicant, who was young and inexperienced, was understandably traumatised by the incident and, critically, did not obtain any treatment or counselling for this until later in his later years. We accept this as had an impact on his return to Fiji is likely to have a further impact on his mental health.
(Errors in original.)
41 The Tribunal stated, at [95], that the difficult question was whether “previous threats and trauma” which manifest in psychological harm both in Australia and, more particularly, in the receiving country, engages complementary protection. The Tribunal stated, at [98], that the reasoning of Judge Riley appeared to be inconsistent with that of Mansfield J in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (SZRSN) at [47]-[49] (and the reasoning of Driver FM whose decision was affirmed in that case). The Tribunal’s core reasoning on the issue was as follows:
106. It is clear from the decision of Mansfield J, when read in its entirety, that his Honour accepts the reasoning of Driver FM which includes the references we have highlighted about harm taking place in the receiving country. While the decision of Mansfield J in the Federal Court primarily focussed on the meaning of “a necessary and foreseeable consequence” of removal, both the Federal and the Federal Magistrates Courts considered this meaning in the context of the definition of “significant harm” taking place in the receiving country. Given the references to an act or omission in the definitions for cruel or inhuman treatment or degrading treatment in s.5(1), it is implicit the Federal and Federal Magistrate Courts accepted that an act or omission for the purposes of “significant harm” must take place in the receiving country and by necessary implication be an act that occurs after removal from Australia. It is also implicit that Mansfield J and Driver FM concluded that the consequences of an act in the receiving country did not (and presumably could not) engage the definition for significant harm.
107. The applicant’s representatives seek to distinguish SZRSN by saying it has narrow application. We accept that neither case opines on the specific issue of whether an act in the past could be an act in the future for the purposes of those definition sections of ss.36(2A) and 5(1) nor on whether the future consequences of an act in the past could engage the provisions. However, we do not accept that this is a meaningful distinction given the reasoning in both SZSRN decisions. While we accept that the decisions in SZSRN turn on the question of whether the act of removal (and thereby the separation of the applicant from his family in Australia) engaged complementary protection, the essential line of reasoning of Driver FM and Mansfield J must have broader application. Their reasoning is to the effect, first, that any act or omission is forward-looking and must necessarily occur in the receiving country and, secondly, but perhaps most relevantly for the purposes of this case, that it was necessary for there to be an “act or omission” to fall within the definition for cruel or inhuman treatment and degrading treatment in s.5(1) and, as clearly stated by Mansfield J, the consequence of an act does not fall within the definition.
108. The applicant’s representatives seek to characterise the reasoning [of Judge Riley] as authority along the following lines. First, for the proposition that an act in the past can represent a continuous act into the future which can thereby be suffered in the receiving country. Secondly, that psychological harm is itself part of an act that is sustained in the receiving country. We do not consider that [the judgment of Judge Riley] is authority for either of these propositions.
109. The submissions do not address the fundamental issue about the clear meaning of ss.36(2A) and 5(1). Subsection 36(2)(aa) directs attention to the question of whether there is a real risk that a claimant will suffer significant harm, as exhaustively defined by s 36(2A), as a necessary and foreseeable consequence of removal from Australia. A non-citizen will suffer significant harm if the person will be subject to the types of harm enumerated in ss.36(2A)(a) to (e), which are further defined in s.5(1) to be an “act or omission”.
110. Thus, as Riley J observes … the question is whether a person will be subjected to an act in the future if the person suffers the consequences of the act in the future, even if the act itself is in the past. While her Honour concludes that this would engage s.36(2A) and therefore s.36(2)(aa), we prefer the authority of Mansfield J in SZSRN where his Honour made an important distinction between an act and the consequence of an act: at [47]. We also note that when s.36(2A) is read with s.5(1) the clear meaning is that the non-citizen will be subjected to an act where suffering is intentionally inflicted. This is inconsistent with suffering harm from a previous act.
111. We also reject any suggestion that the principles in Project Blue Sky would be authority for such a broad interpretation. The process of construing s.36(2)(aa) begins with the statutory text and the text must be considered in its context. Objective discernment of the context may be made through extrinsic material, the legislative history and the purpose and policy of the legislation[.] However, extrinsic material cannot be relied upon to displace the clear meaning of the text. In our view, ss.36(2A) and 5(1) are clear in their terms. To engage s.36(2)(aa) an applicant must satisfy the Tribunal that there is a real risk he or she will suffer significant harm in the receiving country and this means an act or omission taking place in the receiving country. This cannot be constituted by an act in the past or the future consequence of an act in the past. Psychological harm is a mental state and is not an “act” but rather an illness which is manifest, in this case, by reason of a previous act.
112. The contention that the threat made to the applicant 17 years ago is a continuing act which, in effect, will come to fruition when the applicant returns to the place of the original trauma, is novel. The act must be the physical act, in this case being the threat made 17 years ago. In our view, the mental health issues that arise from the threat are a consequence of the act. Any harm arising in Fiji is a consequence of the trauma from the act. A psychological response to being returned to the location where the traumatic event occurred is not an act in itself. As stated by Reeves J in CHB16 (agreeing with Collier J in CSV15 v Minister for Immigration and Border Protection [2018] FCA 699) at [65] to [68], the harm described in s.36(2A) is a harm perpetrated “by others”.
(Footnotes omitted; bold emphasis added.)
42 Accordingly, while the Tribunal accepted that the appellant may suffer psychological harm if he returned to Fiji (because of his subjective fear of returning to that country), it rejected the submission that the psychological harm engaged s 36(2)(aa).
43 We note for completeness that at [132]-[134] of its decision, the Tribunal made a recommendation that consideration be given to referring the case to the Minister for intervention under s 417 of the Migration Act.
The proceeding in the Federal Circuit Court
44 The appellant applied to the Federal Circuit Court for judicial review of the Third Tribunal Decision. The appellant relied on five grounds, which are set out in [10] of the reasons of the primary judge. These grounds broadly correspond to the grounds of appeal in the notice of appeal filed in this Court, save that grounds 1(a) and 1(b) at first instance correspond with two separate grounds – grounds 1 and 2 – in the notice of appeal. The grounds in the notice of appeal are set out below.
45 The primary judge rejected each of the grounds of review. In the course of his discussion of the Tribunal’s reasons, the primary judge expressed his agreement with [109], [110] and [111] of the Tribunals reasons: see the reasons of the primary judge at [37]-[39]. At [40] of his reasons for judgment, the primary judge set out the definition of “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act. It is convenient to set that out:
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.
46 The primary judge noted at [40] that the definition refers to an act or omission by which pain or suffering “is intentionally inflicted”, and stated:
If it had been intended by the legislature that past acts or omissions could relevantly be the acts or omissions for the purposes of assessing whether there was a real risk that a non-citizen would suffer significant harm if returned to their receiving country, then the definition could have been enacted such that it contemplated the infliction of pain or suffering which “ … had been … intentionally inflicted.” The legislature did not choose to do so.
47 The primary judge then considered, and rejected, each of the grounds in turn. Given that the grounds of review and the grounds of appeal correspond with each other, it will be convenient to refer to his Honour’s specific reasons for rejecting the grounds of review in the course of considering the appeal grounds.
The appeal to this Court
48 The appellant appeals to this Court from the judgment of the primary judge. The grounds in the notice of appeal are as follows:
1. The Federal Circuit Court erred by failing to conclude that the Tribunal erred by failing to apply a judgment of Federal Circuit Court, which was binding upon it.
2. The Federal Circuit Court erred by failing to conclude that the Tribunal erred by failing to apply the criteria set out in s 36(2) of the Migration Act 1958 (Cth), namely by erroneously concluding that ‘the future consequence of an act in the past’ is insufficient to make out a protection claim under s 36(2).
Particulars
The Tribunal considered that a future act or omission was required for a protection claim to be made out, including at [80], [99], [107]-[112].
This was contrary to the very judgment of the Federal Circuit Court which gave rise to the matter being remitted to the Tribunal for reconsideration according to law, namely [the judgment of Judge Riley] at [32] as the Tribunal expressly acknowledged at [97]-[98], [108], [110] of its reasons. The Tribunal, which was bound by that judgment of the Federal Circuit Court, expressly refused to apply it.
The Tribunal purported to find a conflict between that judgment and SZRSN v Minister [2013] FCA 751, but also (correctly) highlighted that that latter judgment did not deal with the critical issue (at [107]).
3. The Federal Circuit Court erred by failing to conclude that the Tribunal erred by misapplying the decision in SZRSN v Minister [2013] FCA 751 (read in light of GLD18 v Minister for Home Affairs [2020] FCAFC 2, especially at [38]-[42], [64]) to the evaluation of the Appellant’s claims.
Particulars
The Appellant’s claims did not concern the repercussions of mere removal from Australia, but rather concerned the risk of mental harm to him after arrival in Fiji by reason of the past act there of having his life threatened by a military official who the Appellant witnessed murdering another man.
The Tribunal accepted that that threat was ‘open-ended’ and ‘continuing’ (at [94]).
Notwithstanding that, the Tribunal read SZRSN broadly at [107] in the way the Full Court of the Federal Court concluded was wrong at [64] of GLD18.
The Tribunal purported to find a conflict between [the judgment of Judge Riley] and SZRSN v Minister [2013] FCA 751, but also (correctly) highlighted that that latter judgment did not deal with the critical issue (at [107]).
4. The Federal Circuit Court erred by failing to conclude that the Tribunal erred by applying the decision in SZRSN v Minister [2013] FCA 751 (read in light of GLD18 v Minister for Home Affairs [2020] FCAFC 2) when that decision was and is plainly wrong.
5. The Federal Circuit Court erred by failing to conclude that the Tribunal erred by failing to apply the statutory test for refugee protection, namely by assuming irrational behaviour by the murdering military official (at [73] of its reasons) in its assessment of the future risk of physical harm to the Appellant.
Particulars
The Tribunal was required to make a reasoned prediction of the future risk of harm to this Appellant in light of the known motivations and objectives of the would-be perpetrator.
The Tribunal relied on the ‘assailants [having not made] any threats or enquiries of the Appellant’s father or family in Fiji around the time of the alleged incident or at any time thereafter’ to conclude that the Appellant was not at risk of relevant harm.
The Tribunal had regard, adversely to the Appellant, to whether the perpetrator had:
a. Investigated who was in the Appellant’s family;
b. Sought out their address; and
c. Attended at that address to ask after the Appellant, thereby identifying himself and probably prompting a conversation with the Appellant in which he might reveal why the perpetrator would be otherwise randomly turning up at a family member’s house to ask after him.
This would be not only an irrational series of steps for a person who had got away with murder to take, it would be potentially self-destructive.
The [Tribunal] engaged in its predictive task by speculating about non-self-preserving, or irrational, conduct by the perpetrator to make a prediction about the future risk to the Appellant by the same perpetrator.
6. The Federal Circuit Court erred by failing to conclude that the Tribunal’s decision was infected by jurisdictional error by reason of, or by failing to consider:
a. the publication of the Appellant’s full name coupled with facts that linked that name with the current protection claims, and / or
b. the breach by the Federal Court of Australia of s 91X of the Migration Act 1958 (Cth),
since [date omitted] in respect of the Appellant.
49 At the hearing of the appeal, counsel for the appellant accepted that grounds 3 and 4 were, in reality, a subset of ground 2. Accordingly, these grounds will be considered together.
Ground 1
50 By this ground, the appellant contends that the Federal Circuit Court erred by failing to hold that the Tribunal erred by failing to apply a judgment of the Federal Circuit Court (namely the earlier judgment of Judge Riley), which was binding on it.
51 The judgment of Judge Riley has been summarised above. The orders made by Judge Riley included that the Second Tribunal Decision be set aside and that the matter be remitted to the Tribunal for determination according to law. The Minister did not appeal from that judgment.
52 The appellant’s contention, in broad outline, is that following the remittal of the matter to the Tribunal, the Tribunal was bound to apply the reasoning of Judge Riley, in particular her Honour’s conclusion at [32]-[33] that a person will be subjected to an act in the future if the person suffers the consequences of the act in the future, even if the act itself took place in the past.
53 The primary judge rejected a comparable ground at first instance. As has been noted, his Honour agreed with the Tribunal’s reasoning on the point. His Honour also considered that the Tribunal’s analysis of the judgment of Judge Riley was unnecessary for its decision: see the reasons of the primary judge at [44]. The primary judge held that the Tribunal had appropriately applied the s 36 criteria: primary judge’s reasons at [47]. Alternatively, even if the Tribunal proceeded on the basis of an incorrect legal principle, it could not have realistically resulted in the Tribunal making a different decision: at [48]. The primary judge rejected the appellant’s submission regarding the principle of finality: at [49]-[51]. The primary judge reasoned that the decision under review (the Third Tribunal Decision) was a different decision (of a differently constituted Tribunal) from that considered by Judge Riley. The primary judge held that the Tribunal was not bound to follow the judgment of Judge Riley, irrespective of its merits, in the absence of clear language to that effect in the Migration Act.
54 The appellant puts his argument on appeal in three different, but related, ways. First, the appellant submits that the Tribunal was bound by the doctrine of precedent to apply the conclusion of Judge Riley at [32]-[33] of her judgment.
55 Secondly, the appellant submits that the primary judge was bound to follow the judgment of Judge Riley unless the primary judge was of the view that it was clearly wrong. The appellant submits that the primary judge did not explain why he considered Judge Riley’s decision to be incorrect; thus, two Federal Circuit Court judges have reached opposite conclusions on the same point without any explanation.
56 Thirdly, the appellant submits that, in circumstances where the Minister elected not to appeal from the judgment of Judge Riley, it is an abuse of process for the Minister to contest the same legal point in the same factual context. The appellant relies on the principle of finality and submits that the relevant issue was resolved for all time between the parties by the judgment of Judge Riley.
57 For the following reasons, we do not accept these submissions.
58 First, we do not accept the proposition that the Tribunal was bound to apply the conclusion of Judge Riley at [32]-[33] of her judgment, irrespective of its correctness as a matter of law. The matter was remitted to the Tribunal “for determination according to law”. The Tribunal was therefore bound to apply the law to the determination of the matter following its remittal. It may be accepted that, in the usual case, the law will have been correctly stated in the judgment of the court that remits the matter. However, there may be exceptional cases where that is not the case. For example, it may be that, in the period between the judgment of the court remitting the matter and its redetermination by the Tribunal, a higher court has resolved the issue differently from the court that remitted the matter. In such a case, the obligation on the Tribunal would be to apply the law as stated by the higher court, this being the correct statement of the law on the point.
59 In the present case, the Tribunal perceived there to be an inconsistency between the judgment of Judge Riley at [32]-[33] and the earlier judgment of Mansfield J of this Court in SZRSN. There may be a question whether there was, in truth, an inconsistency between the two judgments. However, as a matter of principle, assuming there was an inconsistency between the two judgments, it was correct for the Tribunal to follow the judgment of Mansfield J, being a judgment of a higher court in the judicial hierarchy. Further, in circumstances where the Tribunal (rightly or wrongly) perceived there to be an inconsistency between the two judgments, it was appropriate for the Tribunal to follow the judgment of Mansfield J.
60 This approach is consistent with cases that have discussed the extent of the Tribunal’s powers following the remittal of a matter to the Tribunal. In Peacock v Repatriation Commission (2007) 161 FCR 256, a Full Court of this Court (Downes, Lander and Buchanan JJ) held that an order that a matter be remitted to the Tribunal “for further consideration in accordance with law” was an unqualified remittal, and that, in the absence of some express qualification or limitation, the Tribunal was to determine all questions of fact and law relevant to the matter (at [6], [18]). The Full Court referred, at [16], to the judgment of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, where his Honour said at [6]-[7]:
6 … The Full Court ordered that the decision of the Tribunal be set aside, and the matter be remitted to the Tribunal to be determined in accordance with law.
7 The consequence of that order was that the Tribunal, in dealing with the remitted matter, would be obliged to determine, in the light of the circumstances existing at the date of such new determination, and of the information before the Tribunal at that time, all questions of fact and law relevant to the respondent’s claim to refugee status.
61 The scope of a remittal order was also considered by a Full Court of this Court (McKerracher, Perram and Robertson JJ) in Kaluza v Repatriation Commission (2011) 280 ALR 621. As set out at [12], the order remitting the matter to the Tribunal stated that the matter be remitted “to be determined according to law”. The Full Court held, at [33], that there was “no reason to consider that there was any limit on the remittal as the commission contends”. The Full Court stated that the “effect was simply to remit the case to the tribunal to be heard and decided again without any directions being imposed limiting how the tribunal was to proceed”: at [33]; see also [44], [48].
62 Secondly, we do not accept the submission based on the line of cases to the effect that a judge should follow the judgment of another judge of the same court unless persuaded it is clearly wrong. It may be accepted that, for reasons of judicial comity, a judge of a court should usually follow a decision of another judge of the same court unless the judge is of the view that it is plainly wrong. The practice has been expressed in different ways on different occasions: see, for example, the cases discussed by French J (as his Honour then was) in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [74]-[76] (recently applied by Perry J in Al-Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 963 at [15]-[16]). It is unnecessary for present purposes to express a view on the different formulations that have been adopted in the cases, and it is undesirable to adopt any rigid formulation. It is sufficient to refer, by way of example, to the following passage from the judgment of Burchett J in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204:
The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while “deserving of the closest and respectful consideration”, does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong”: Halsbury, 4th ed, vol 26, para 580. The word “usually” indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle.
63 In the course of considering the Tribunal’s reasons for decision, the primary judge referred to the judgment of Judge Riley and to the reasons for decision of the Tribunal on the question whether the consequences of a past act could engage the complementary protection criterion: see the primary judge’s reasons at [30]-[42]. The primary judge expressed his agreement with the reasoning and conclusions of the Tribunal, and provided reasons for forming this view. Although not expressed in these terms, it is apparent that the primary judge formed the view that Judge Riley’s reasoning and conclusion on the point were wrong, for the reasons the primary judge gave. It was therefore open to the primary judge to depart from the judgment of Judge Riley on the issue, consistently with the practice described above.
64 Thirdly, we do not accept the proposition that it was (or is) an abuse of process for the Minister to contest (in the proceeding before the primary judge or in the appeal to this Court) the proposition expressed in Judge Riley’s judgment at [32]-[33]. While it is true that the Minister did not appeal from the judgment of Judge Riley, this was in circumstances where Judge Riley’s decision was supported by two independent bases. As described above, the appellant succeeded before Judge Riley on both grounds 1 and 2. Each of these provided independent bases for her Honour’s decision to set aside the Second Tribunal Decision and remit the matter to the Tribunal. In these circumstances, and assuming the correctness of Judge Riley’s decision on ground 2, there could be no effective appeal by the Minister against ground 1.
65 Further, for similar reasons, we do not consider the judgment of Judge Riley at [32]-[33] to give rise to an issue estoppel. It has been said that, where a court finds alternative grounds in favour of a successful party, “[t]hose findings do not create issue estoppels because the losing party could not effectively appeal against any of them separately, and if one was upheld the appeal would fail”: K R Handley, Spencer Bower and Handley: Res Judicata (5th ed, 2019), [8.25] (footnotes omitted). In circumstances where there were two independent bases for the decision of Judge Riley to set aside the Second Tribunal Decision and remit the matter to the Tribunal, the conclusion of Judge Riley at [32]-[33] did not create an issue estoppel.
66 For these reasons, ground 1 is not made out.
Grounds 2, 3 and 4
67 By these grounds, the appellant contends, in summary, that the primary judge erred by failing to conclude that the Tribunal erred by failing to apply the criteria set out in s 36(2) of the Migration Act, namely by erroneously concluding that “the future consequence of an act in the past” (see the primary judge’s reasons at [39]) is insufficient to make out a protection claim under s 36(2).
68 As noted above, the primary judge expressed his agreement with the Tribunal’s reasons as to whether the complementary protection criterion could be engaged where the risk of harm was constituted by the future consequences of an act in the past: see the primary judge’s reasons at [37]-[42]. Also relevant are the primary judge’s reasons and conclusions in relation to ground 1(b), 2 and 3, which correspond with grounds 2, 3 and 4 on appeal. His Honour did not deal separately with paragraph (b) of ground 1. His conclusions relating to ground 1 generally have been referred to above. In relation to ground 2, the primary judge stated that this ground failed for the same reasons as ground 1: at [53]. His Honour also stated at [54]:
The Tribunal appropriately addressed all of the applicant’s claims relating to psychological harm being suffered by him should he be returned to Fiji. The Tribunal appropriately engaged with the issue as to whether a past act in Fiji could found the basis for [complementary] protection pursuant to s. 36(2)(aa) of the Act. It did not need to closely analyse either the decision in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 or GLD18 v Minister for Home Affairs [2020] FCAFC 2 for the purpose of its consideration as to whether [complementary] protection obligations were owed to the applicant or not. It found, as it was entitled to do, that there was not a real risk that the applicant would suffer significant harm if he returned to Fiji. It did not err in so holding, particularly in circumstances where it had found that the relevant significant harm asserted would not have been intentionally inflicted after the applicant’s arrival in Fiji in any event.
69 In relation to ground 3, the primary judge stated at [56] that the appellant had conceded that, because the Federal Circuit Court was bound by the judgment of the Full Court in GLD18 v Minister for Home Affairs [2020] FCAFC 2 (GLD18), the primary judge must dismiss this ground. On appeal, the appellant has not sought to challenge GLD18; indeed, he has sought to rely on aspects of the reasoning of the Full Court in that case. It may be that the argument was presented differently below; nothing turns on this for present purposes.
70 In his submissions on appeal, the appellant adopts the reasoning of Judge Riley in relation to the scope and operation of s 36(2)(aa). This has been set out above. The appellant contends that the primary judge erred by failing to conclude that the Tribunal erred by misapplying the decision in SZRSN, read in light of GLD18, to the evaluation of the appellant’s claims. It is submitted that the appellant’s claims did not concern the repercussions of mere removal from Australia, nor any act in Australia. The appellant submits that his claim was concerned solely with the consequences of return to Fiji, namely the risk of mental harm to him in Fiji by reason of the past act there of having his life threatened by a military official who the appellant witnessed murdering another man. The appellant submits that the Tribunal accepted the content and nature of the threat, including that it was “open-ended” and “continuing”.
71 The appellant submits that SZRSN was a decision limited to its context (at [47]) and that the facts of that case were significantly different from those of the present case. The appellant submits that: in SZRSN, the Court was concerned with a father being separated from his five children, who would remain in Australia and were Australian citizens; in that context, the separation was said to be caused by acts of the Australian government; that is, the relevant act was the act of removal from Australia of the father; in that context, it was held that s 36(2)(aa) does not operate to afford protection from harm by a State to a non-citizen from the State itself (see the decision of Driver FM at first instance: SZRSN v Minister for Immigration [2013] FMCA 78 at [62]).
72 The appellant submits that the Tribunal read SZRSN expansively and in a way that it considered determinative of the appellant’s claims. The appellant relies on the (subsequent) observations of the Full Court of this Court in GLD18 at [64], where the Full Court stated:
While it can be accepted that some of the language used by Mansfield J [in SZRSN] 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.
73 The appellant submits that the Tribunal was wrong to apply SZRSN as that decision was distinguishable and should have been distinguished.
74 The appellant submits that, if SZRSN stands for the proposition that s 36(2)(aa) covers an act or omission, but not a consequence of an act, the decision is wrong and should not be followed. The appellant submits that SZRSN relies (at [47]-[49]) on an analytical distinction between removal and the consequence of removal that is illusory; it is a false dichotomy. It is submitted that the fallacy caused the decision-maker to abdicate its statutory task, namely to engage in a fact-intensive analysis of the specific, future risk of harm to the person making the protection claim. The appellant accepts that the removal itself cannot itself be the significant harm, nor can removal be the act against which a visa applicant is to be protected: GLD18 at [38]. However, the appellant submits, the act of removal is the premise of the claim for protection: see GLD18 at [55]. The appellant submits that the reasoning in SZRSN distracts from the correct enquiry, which is whether there is a real risk of relevant harm to the person in the place to which they would otherwise be removed.
75 The appellant submits that, while ss 32(2)(aa) and 36(2A) use the future tense, they refer to something that will be completed, finished or perfected at some point in the future; they do not have regard to when that thing started. In oral submissions, counsel for the appellant gave as examples: “Next month, I will be subjected to the Crimes Act 1914 (Cth)” and “Next week, I will be subjected to the Government’s COVID-19 restrictions”. The appellant also relied upon the Chernobyl example at [32] of Judge Riley’s judgment (see [23] above). The appellant notes that Judge Riley did not refer to “omission” in her analysis, and submits that the reference to “omission” in the relevant provisions provides further support for her Honour’s conclusion.
76 In response to an invitation of the Court for the parties to provide a short note on international case law relating to “cruel or inhuman treatment or punishment” under the relevant international instruments, the appellant filed a helpful note referring the Court to several cases. In the note, the appellant submitted that the international case law indirectly sheds light on the phrase as understood in international law. The appellant submitted that the cases stand for the following propositions:
(a) An unfulfilled threat alone can give rise to a finding that the person was subjected to an act or omission that amounts to cruel or inhuman treatment.
(b) Mental distress arising from the act or omission of another person that is of sufficient severity can be enough to find that a person was subjected to an act or omission that amounts to torture or cruel or inhuman treatment. This extends to uncertainty, doubt and apprehension concerning a past act (even where that act was against another person) followed by an absence of conclusive official information to alleviate the mental suffering resulting from that act.
(c) Assessing whether a threat alone or mental distress rises to the level of meaning the person will be or was subjected to an act or omission that amounts to cruel or inhuman treatment requires a careful assessment of the characteristics and reaction of the particular individual whose claim is being assessed. For example, a death threat that is objectively hollow but causes sufficient mental distress can be enough if the person receiving the threat genuinely believes that the threat is real and immediate, and is mentally harmed as a result.
77 Before engaging directly with the appellant’s contention, two preliminary points should be made. First, it is important to note the context in which the appellant’s complementary protection claim based on psychological harm came to be considered by the Tribunal. The context was one in which the first basis relied on by the appellant (in relation to the complementary protection criterion) was that if he returned to Fiji, there was a real risk that he would suffer arbitrary deprivation of life or cruel, inhuman or degrading treatment and punishment through an attack or threats by his former assailants (see the Tribunal’s reasons at [88]). The Tribunal rejected this claim for the same reasons as it had given in connection with the appellant’s refugee claims based on the risk of physical harm. In summary, the Tribunal was not satisfied that there was a real risk of the appellant being subjected to physical harm, for the reasons given by the Tribunal at [72]-[74]. It was in this context that the Tribunal came to consider the appellant’s complementary protection claim based on psychological harm.
78 The second point is that, contrary to paragraph 38 of the appellant’s written submissions, the Tribunal did not accept that the threat made to the appellant was “continuing”. The relevant paragraph is [94] of the Tribunal’s reasons (set out at [40] above). The Tribunal stated that it accepted that the threat was open-ended and “could have been construed to be continuing”. That is not the same as accepting that the threat was “continuing”. Further, a central plank of the Tribunal’s reasoning was that the Tribunal was not satisfied that there was a real risk of physical harm to the appellant if he returned to Fiji: see, in particular, the Tribunal’s reasons at [71]-[74], [88]. This is inconsistent with the proposition that the Tribunal accepted that the threat made to the appellant was “continuing”. Thus, while the Tribunal accepted that the threat “could have been construed” to be continuing, it did not accept that the threat was continuing, and the thrust of the Tribunal’s reasons is to the contrary.
79 The issue raised by the appellant’s contention may be stated as: whether the consequences of a past act or omission are capable of engaging the complementary protection criterion in s 36(2)(aa) of the Migration Act, read together with s 36(2A) and the definition of “cruel or inhuman treatment or punishment” in s 5(1). (Although the appellant’s contention may also relate to “degrading treatment or punishment”, it is sufficient for present purposes to focus on “cruel or inhuman treatment or punishment”, consistently with the focus of the parties’ submissions.) This arises in circumstances where the Tribunal accepted the appellant’s account of the incident in Fiji in 2002, the Tribunal was not satisfied that there was a real risk of the appellant being subjected to physical harm if he returned to Fiji, and the Tribunal was satisfied that there was a real risk that the appellant would suffer psychological harm (because of his long-held fear and possible post-traumatic stress) if he returned to Fiji.
80 Although parts of them have been set out above, it is convenient to set out the key relevant provisions in full. Section 36(2) relevantly provides :
(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; or
81 Subsection 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.
82 The definition of “cruel or inhuman treatment or punishment” in s 5(1) reads:
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.
83 There is no real issue that, consistently with the text of the relevant statutory provisions, the complementary protection criterion requires a forward-looking assessment. The text of s 36(2)(aa) is expressed in the future tense (“will suffer significant harm”), as is the text of s 36(2A) (“will be subjected to”). The issue is whether future psychological harm that is consequent upon a past act, such as the threat in this case, is capable of engaging the relevant provisions. The matter is not straight-forward, because the definition of “cruel or inhuman treatment or punishment” in s 5(1) is expressed in the present tense. This, at least arguably, creates an ambiguity as to whether the “act or omission” referred to in the definition is necessarily in the future. While it may be accepted that, in accordance with the approach described by McHugh J in Kelly v The Queen (2004) 218 CLR 216 at [103], the definition of “cruel or inhuman treatment or punishment” is to be “read into” the substantive enactment, namely s 36(2A)(d), this does not resolve the arguable ambiguity. It is at least arguable that a person may be subjected in the future to an act or omission that took place in the past. We will refer to the legislative history and context of the provisions, and then return to the text.
84 The complementary protection provisions were introduced into the Migration Act by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (the 2011 Amendment Act) and commenced on 24 March 2012. The background to the inclusion of these provisions in the Migration Act was discussed by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 (SZTAL): see [1] per Kiefel CJ, Nettle and Gordon JJ; [69]-[72] per Edelman J. The complementary protection provisions enacted by the 2011 Amendment Act were designed 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 ICCPR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and certain other international instruments: see the explanatory memorandum to the Migration Amendment (Complementary Protection) Bill 2011, p 1. However, as noted in SZTAL at [4] and [78], the definition of “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act departs from the ICCPR. The relevant provision of the ICCPR is Article 7 which states in part: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The ICCPR does not define “cruel, inhuman or degrading treatment or punishment”. In contrast, s 5(1) of the Migration Act defines “cruel or inhuman treatment or punishment” and does so in terms that require an “act or omission” and the element of intention, the latter being the focus of the decision of the High Court in SZTAL.
85 Although the extrinsic materials relating to the 2011 Amendment Act do not make this clear, it may be that the introduction of the definition of “cruel or inhuman treatment or punishment”, and the reference in it to “act or omission”, were intended to provide greater specificity as to the scope of the protection obligation in the context of certain international cases relating to Article 7 of the ICCPR (or the corresponding article – Article 3 – of the European Convention on Human Rights) which may have been taken to have upheld claims on the basis of the conditions and circumstances facing the person upon return: see, eg, D v United Kingdom (1997) 24 EHRR 423 at [49]-[54]; cf N v Secretary of State for the Home Department [2005] 2 AC 296; [2005] UKHL 31 at [35]-[36], [43], [62], [81]. However, even if this analysis is correct, it does not conclusively resolve whether a past act or omission is capable of engaging the complementary protection criterion in the Migration Act.
86 Having regard to the text, legislative history and context, as discussed above, we consider the preferable construction to be that an act or omission that is wholly in the past is not capable of engaging the complementary protection criterion in the Migration Act. Notwithstanding the use of the present tense in the definition of “cruel or inhuman treatment or punishment”, the overall tenor of the provisions is that they are forward-looking. That feature strongly suggests that the provisions are concerned only with an act or omission that takes place (or continues to take place) in the future. The legislative history, as discussed above, does not suggest otherwise. Thus, we consider this to be the better construction having regard to the text of the relevant provisions and the legislative history. This is not to say that a past act or omission may not be relevant in assessing whether there is a real risk that the visa applicant will be subjected to an act or omission constituting cruel or inhuman treatment or punishment in the future. Nor is it to say that an act or omission in the future may not represent a continuing act or omission that started in the past. However, we consider that there needs to be an act or omission in the future to engage s 36(2)(aa), read with s 36(2A)(d) and the definition of “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act. On the facts of the present case, as found by the Tribunal, the threat to the appellant was wholly in the past. As we have explained, the Tribunal did not accept that the threat was continuing, and the whole thrust of the Tribunal’s reasons is to the contrary. It follows that no error is shown in the Tribunal’s approach or in the primary judge’s conclusion.
87 It is not necessary for present purposes to make observations about SZRSN. It is sufficient to adopt the observations in GLD18 at [64] (set out at [72] above).
88 We note for completeness that, in any event, there does not appear to be any basis on the facts of the present case (as found by the Tribunal) to suggest that the psychological harm that the appellant would likely suffer if he returned to Fiji would satisfy the intention element of the definition of “cruel or inhuman treatment or punishment”. Although the primary judge referred to this, it does not appear to have been the subject of an express finding by the Tribunal.
89 It follows from the above that no error is shown in the conclusions of the primary judge. For these reasons, grounds 2, 3 and 4 are not made out.
Ground 5
90 By this ground the appellant contends that the Federal Circuit Court erred by failing to conclude that the Tribunal erred by failing to apply the statutory test for refugee protection, namely by assuming irrational behaviour by the murdering official in its assessment of the future risk of physical harm to the appellant.
91 The primary judge considered that there was no merit to the comparable ground advanced below (ground 4): at [59]. The primary judge referred, at [59]-[60], to a number of matters taken into account by the Tribunal, including that 17 years had elapsed since the relevant events took place. The primary judge reasoned at [60] that “the Tribunal was entitled to take into account, in that context, whether or not any approach by unknown persons had been made to any of the applicant’s family who still lived in Fiji about the whereabouts of the applicant”. The primary judge stated that it was legitimate for the Tribunal to have done so because, if there was evidence of such contact over the years, it would tend to reinforce the appellant’s claims that his identity was still known to the murderer (or his associates) and that the whereabouts of the appellant was of ongoing interest to them. The primary judge also pointed out that the absence of evidence of contact was but one factor taken into account by the Tribunal.
92 The appellant’s submissions on appeal are summarised in the particulars to ground 5 of the notice of appeal, set out above.
93 We see no error in the primary judge’s approach to the comparable ground at [59]-[60] of his reasons, as summarised above. In the circumstances of the case, it was open to the Tribunal to have regard to the absence of any evidence that the main protagonist had made threats to or even enquiries of the appellant’s family in Fiji (at [73] of the Tribunal’s reasons). The appellant’s submission that it would have been irrational for the main protagonist to have threatened or made enquiries of the appellant’s family in Fiji, seeks to cavil with the merits of the Tribunal’s assessment of the material before it. For the reasons given by the primary judge, it was open to the Tribunal to have regard to the absence of such evidence.
94 We therefore reject ground 5.
Ground 6
95 By ground 6, the appellant contends that the Federal Circuit Court erred by failing to conclude that the Tribunal’s decision was affected by jurisdictional error by reason of an alleged breach of s 91X of the Migration Act by this Court in a judgment relating to the appellant.
96 Section 91X provides as follows:
91X Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit Court
(1) This section applies to a proceeding before the High Court, the Federal Court or the Federal Circuit Court if the proceeding relates to a person in the person’s capacity as:
(a) a person who applied for a protection visa; or
(b) a person who applied for a protection-related bridging visa; or
(c) a person whose protection visa has been cancelled; or
(d) a person whose protection-related bridging visa has been cancelled.
(2) The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.
(3) In this section:
application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.
protection-related bridging visa means a bridging visa granted as a result of an application for a protection-related bridging visa.
97 The appellant’s contention is that s 91X was breached by this Court in a judgment relating to the appellant. The relevant judgment did not involve an application for judicial review of a decision relating to the appellant’s application for a protection visa, or an appeal from such an application.
98 The primary judge rejected the corresponding ground at first instance (ground 5): see [67]-[70] of the primary judge’s reasons.
99 We reject this ground of appeal, essentially for the reasons given by the primary judge.
100 First, in our view s 91X did not apply to the proceeding in which the relevant judgment was given, because the proceeding did not relate to the appellant in his capacity as a person who had applied for a protection visa.
101 Secondly, and in any event, a claim of breach of s 91X was not raised by the appellant in the Tribunal, nor did it arise on the material before the Tribunal. In oral submissions, counsel for the appellant submitted that the Tribunal is assumed to “know the law”, and this included the relevant judgment. However, the appellant’s contention is, in reality, factual rather than legal. The appellant does not seek to rely on the earlier judgment of this Court as standing for a legal proposition, but rather as constituting a breach of s 91X. There is no basis to treat the Tribunal as having been aware of the earlier judgment or of the alleged breach of s 91X.
102 Accordingly, we reject ground 6.
Conclusion
103 It follows from the above that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, we will also order that the appellant pay the Minister’s costs of the appeal, to be fixed by way of a lump sum.
Associate:
