FEDERAL COURT OF AUSTRALIA

SZRTN v Minister for Immigration and Border Protection [2013] FCA 1156

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed from “Minister for Immigration and Citizenship” to “Minister for Immigration and Border Protection”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

1    By Notice of Appeal filed on 24 June 2013, the appellant appealed from a decision of a Judge of the Federal Circuit Court of Australia delivered on 21 June 2013 (SZRTN v Minister for Immigration [2013] FCCA 583) whereby the learned Circuit judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 13 August 2012.

Background

2    The appellant is a citizen of Samoa who was born in Vaimoso on 25 October 1981. In 1983, he and his family moved to New Zealand. Subsequently, his parents separated. On 17 April 1987, the appellant’s father brought him to Australia and left him to be raised by his uncle and aunt who, at the time, lived in a suburb of Sydney. The appellant was thereafter raised by his uncle and aunt in Sydney, his father having abandoned him and returned to New Zealand. The appellant came to Australia on a one-month visitor’s visa which expired on 17 May 1987. The appellant was an unlawful non-citizen in Australia throughout the period from 17 May 1987 to 20 December 1997. He was refused a Combined Spouse (Subclass UK 820) visa on 11 November 2009.

3    The appellant has only seen his father on two occasions since 1987.

4    The appellant did not go to school during the period when he lived with his uncle and aunt. He was told not to leave the house because he was not “legal”. He was told that, if he left the house, the police would come and take him away.

5    The appellant claimed that he ran away from the home of his uncle and aunt when he was about 13 or 14 years of age and that he did not contact his family again until he was about 18 years of age.

6    On 17 December 1997, the appellant was convicted of larceny at Liverpool Local Court and fined $800. In the years that followed, he was convicted of other offences. Some of these offences were serious and resulted in the appellant being imprisoned. The most recent conviction occurred on 30 March 2012.

7    The appellant never became an Australian citizen.

8    On 29 May 2012, the appellant made application to the Department of Immigration and Citizenship (the Department) for a Protection (Class XA) visa (the first visa application). In that application, the appellant claimed that he did not know anyone in Samoa as he had spent his whole life in Australia. He said that his family was here and that his home was here. He said that he had not returned to Samoa since 1983.

9    The appellant subsequently withdrew the first visa application. On 14 June 2012, the appellant made a second application for a Protection (Class XA) visa (the second visa application). The second visa application was lodged by a firm of lawyers on his behalf.

10    The second visa application was supported by a Statutory Declaration made by the appellant in which he set out a summary of his life and addressed the basis of his second visa application.

11    In that Statutory Declaration, the appellant said:

(a)    In about mid 2010, he met a young woman whom he described as his fiancÉe. He said that he planned to marry this young woman in 2013. He said that, as at June 2012, they did not live together but that they had a close and loving relationship. He said that they planned to have a family.

(b)    He said that he had been welcomed by his fiancÉe’s family.

12    At pars 29–47 of his Statutory Declaration, the appellant said:

29.     I have not been to Western Samoa since I left there in 1985-1986 when I was aged 4 or 5.

30.     I do not speak Samoan or have any contacts with family or extended family in that country. I understand both my sets of grandparents are dead.

31.    I know nothing of Western Samoa.

32.    I fear significant threats to my personal security, human rights and human dignity if I am forced to return to Western Samoa – a place of which I have no connection at all.

33.    All my family are in Australia and some are in New Zealand. However, I have never had any contact with my siblings in New Zealand or my mother since 1985-1986. I have no knowledge of their whereabouts or any contact details.

34.    I have no support systems in Western Samoa.

35.    I am a single male without family or contacts or financial means.

36.    I have no work history. I have no qualifications. I have no driver’s licence. I have no tax file number. I have no particular skills with which I can live as other Western Samoans live.

37.     I was kept uneducated and illiterate by my father’s family.

38.     I have no means. If I am forced to return to Western Samoa I will return with a few clothes, a mobile telephone with Sydney contacts, a few CDs and nothing else.

39.     I fear irreparable harm and continuing hardship to my Australian family unit if I am forced to return to Western Samoa.

Who I think may harm/mistreat me in that country and why.

40.     I fear that if I am forced to return to Western Samoa I would be vulnerable because I have not developed the life skills necessary to prevent me from sliding back into the lifestyle that I now actively seek to avoid.

41.     I fear that this is likely to happen because I will be without my closest support, [my fiancÉe], and my close Australian family unit.

Why I think the authorities of that country cannot or will not protect me if I were to go back to that country.

42.     I fear that it will be assumed by Western Samoan authorities that I will not need protection.

Why I think relocation to another area in my country is not a reasonable option.

43.     It would be unreasonable for me to relocate to another place in Western Samoa because I have no place to relocate from.

44.     I do not have any idea where I was born in Western Samoa.

45.     I ask you to consider the unique and exceptional circumstances that occurred during my childhood and youth.

46.    If I am given the opportunity to obtain a tax file number and identification documents I would like to start to build my education, enrol in TAFE and start my new life as a upstanding citizen.

47.     I ask you to make a favourable decision in my favour.

13    The appellant also lodged with his second visa application an earlier Statutory Declaration made by him on 11 April 2012. The substance of that Statutory Declaration was repeated in the later document to which I have referred at [11] and [12] above.

14    The appellant also supported his second visa application with character references and Statutory Declarations from family and friends.

15    In Written Submissions made both to the Department and to the Tribunal, the appellant claimed to fear being returned to Samoa because he does not speak the Samoan language and has no family there. He also claimed to fear significant threats to his personal security, human rights and human dignity.

16    In the Tribunal, the appellant claimed that he feared harm by reason of his imputed nationality (ie a nationality other than Samoan). He claimed that his imputed nationality would lead to discrimination in employment and essential services with the consequence that his ability to live, even at a subsistence level, would be threatened. He also claimed that the harm caused by such discrimination would amount to significant harm arising as a necessary and foreseeable consequence of his removal from Australia.

17    The appellant was interviewed by a delegate of the first respondent on 20 June 2012.

18    The delegate refused the appellant’s application for a protection visa in a decision dated 11 July 2012.

19    In that decision, the delegate said that he was satisfied that, in the appellant’s case:

(a)    The Refugees’ Convention ground of imputed nationality was the essential and significant reason for the harm feared as required by s 91R(1)(a) of the Migration Act 1958 (Cth) (the Act); and

(b)    The harm feared was serious harm and systematic and discriminatory conduct as required by s 91R(1)(b) and s 91R(1)(c) of the Act with the consequence that he was satisfied that the harm feared amounted to persecution.

20    The delegate went on to find that there was no evidence before him which indicated that the appellant would be persecuted in Samoa on account of an imputed Australian nationality. The delegate also concluded that the appellant had had a very unfortunate upbringing after his father had abandoned him in Australia at the age of five. He also accepted that the appellant had been deprived of the opportunity to be educated by reason of his relatives’ conduct over many years. He also accepted that the appellant is illiterate and has never been employed. The delegate found that the appellant’s lack of literacy had led to his committing the crimes of which he was ultimately convicted.

21    However, the delegate was not satisfied that there was a real chance that the appellant would be targeted and subjected to persecutory harm by reason of the fact that he was illiterate and might not be able to find work or for the reason that he had been detached from Samoan culture. The delegate accepted that the appellant would face significant challenges if he were to return to Samoa but he did not consider that these challenges constituted persecution within the Refugees’ Convention.

22    Ultimately, the delegate was not satisfied that the appellant had a real chance of being persecuted for a Convention reason. He therefore found that the appellant’s fear of persecution was not well-founded.

23    The delegate also addressed the complementary protection criteria embodied in s 36(2)(aa) of the Act. The delegate was not satisfied that the harm claimed by the appellant was significant harm for the purposes of that subsection. The delegate said that he was not satisfied that Australia had protection obligations to the appellant pursuant to s 36(2)(aa) of the Act.

24    On 11 July 2012, the appellant lodged an Application for Review of the delegate’s decision in the Tribunal.

The Decision of the Tribunal

25    By a decision dated 13 August 2012, the Tribunal affirmed the delegate’s decision not to grant a protection visa to the appellant.

26    At [5]–[15] of its Decision Record, the Tribunal addressed the criterion laid down in the Act for a protection visa (as to which see s 36(2)(a)).

27    At [16]–[18], the Tribunal described the complementary protection criterion provided for in s 36(2)(aa) of the Act. At those paragraphs, the Tribunal said:

16.    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia to 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17.    ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life, or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18.    There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

28    At [19]–[48], the Tribunal summarised the appellant’s claims.

29    In particular, at [28]–[29], the Tribunal recorded the fact that the appellant’s representative had submitted that, should the appellant be found not to satisfy the definition of a refugee, there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia, there was a real risk that he would suffer significant harm within the meaning of s 36(2)(aa) of the Act. It was submitted that this would occur because the appellant would be subjected to severe discrimination in employment and in accessing essential services such as health care and education with the consequence that his ability to subsist would be threatened. It was said that these consequences were appropriately characterised as constituting “cruel or inhuman treatment” or “degrading treatment” sufficient to engage Australia’s complementary protection obligations.

30    At [35], the Tribunal recorded that, at the hearing before it, the appellant had said that he did not fear being persecuted and did not think that he was truly a refugee. He said that he did fear being degraded as a human being should he be compelled to return to Samoa. He said that this was because of his lack of education, the fact that he did not speak Samoan very well, his ignorance of the culture and his lack of family support there. This evidence culminated in findings made by the Tribunal at [50]–[52] in the following terms:

50.    At the hearing the Applicant made it clear that he was renouncing the claims set out in his two protection visa applications, as well as in the most recent submission from his advisor, that he feared persecution for a Convention reason in Samoa. He does claim to fear that his lack of education, ignorance of Samoan culture and language and lack of family connections would make it very difficult for him to adapt to the Samoan environment. He did not clearly suggest that these problems would arise as the result of any overt act of discrimination, by the authorities or anyone else in Samoa, but I accept that such an inference is possible. I also accept the inference that he claims he will face a real risk of suffer significant harm sufficient to engage Australia’s the complementary protection obligations.

51.    The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much details as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70, Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.

52.    As noted, the Applicant made it clear at the hearing that, notwithstanding the claims advanced in his protection visa applications and the most recent submission from his advisor, he did not fear harm for a Convention reason in Samoa. I note that he made a similar disavowal during his Departmental interview in June 2012. Having considered the information before the Tribunal I am not satisfied there is any objective basis to believe he would in fact suffer serious harm related to a Convention reason in Samoa. I find on this basis that he does not have a well-founded fear of persecution for a Convention reason should he return to Samoa, now or in the reasonably foreseeable future, and that he is not a refugee.

31    At [53]–[55], the Tribunal set out its reasons for rejecting the appellant’s claim that he would suffer discrimination in Samoa of a severity which would equate to significant harm in terms of s 36(2)(aa) of the Act. In those paragraphs, the Tribunal said:

53.    I have also considered, alternatively, the claim that the Applicant would suffer discrimination in Samoa of a severity which would equate to significant harm in terms of s.36(2)(aa) In doing so:

•     I do not accept the claim that he has no Samoan language ability. As put to him at the hearing I believe it is most likely that, growing up in Samoan households at least into his early adolescence, he was speaking Samoan as well as English by the time he was thirteen or fourteen. I accept that he may not have used the language to any great degree since then, and that he may in fact have associated with speakers of Arabic more than those who speak Samoan. I accept that for this reason his Samoan language ability is limited and that he is unable to read or write in the language. I am not satisfied, however, that he does not retain some abilities in spoken Samoan. I also note in this context that the Samoan authorities have established the goal of making the country bilingual, with English as the second language, suggesting that any difficulties the Applicant might experience in fully mastering Samoan would not prevent him from communicating adequately with other Samoans.

•     For similar reasons I do not accept the claim that he knows nothing of the various aspects of Samoan culture which are brought together in the expression fa’asamoa. As put to him at the hearing, and as he accepted to be the case, such matters are seen as important by Samoans and the values and cultural patterns of fa’asamoa are strongly inculcated in children. I accept, as he said, that in his adolescence he was angry and disturbed by the fact that he had been abandoned by his parents and that when he fell into bad company he turned away from his earlier adherence to fa’asamoa. I do not accept that he knows nothing of these matters or that if he were to return to Samoa he would be discriminated against for such a reason.

•     I do not accept the claim that he has no family members in Samoa. At the hearing it became clear that although he and his relatives living in Australia have had no contact with his mother’s side of the family, they retain contact with his father’s family in the village of Vailutai. I accept that these are not the Applicant’s immediate family but rather members of his extended family or aiga. I also accept that the Applicant has never made any move to contact them, and that he has had no more than perfunctory dealings with them at times when they have visited Australia. However, I am not satisfied that if he were to return to Samoa he would be entirely without family connections or without a geographical location which could be seen as his home.

•     I accept that Samoa is a small developing island state and that its economy has encountered problems in recent years. I am not satisfied that this means the Applicant would have no employment prospects. The information provided by his uncle … at the hearing indicates that members of his aiga in Vailutai are engaged in smallholder farming and fishing. The Applicant’s lack of education or formal trade qualifications seems, on the face of it, an unlikely obstacle to employment in this field, as does the fact that he has a criminal record in Australia. At the hearing he seemed to accept that employment of this kind would be available to him although he stressed, as I accept might well be the case, that he would be likely to receive low wages and could instead by [sic] paid only in food.

•     I do not accept there is any evidence to indicate that the Applicant, as a Samoan citizen, would be denied access to the free (or almost free) system of public health care available to all Samoans, or that he could not gain access to publicly available education. I accept that the standard of health care and education in Samoa is likely to be below that of Australia but I am not satisfied that this circumstance suggests that the Applicant would suffer discriminatory treatment.

•     As put to the Applicant at the hearing there seems no reason why he would be unable to benefit from remittances from his relatives in Australia, in the same way that most Samoans are assisted. He appeared to accept that remittances would be sent to him (and I note that he has been able to count on family support of various kinds in Australia over an extended period) but suggested that he would not see any of the money because, living in a village, others would take it from him. I accept that in these circumstances he might well be confronted with requests from his friends or members of his aiga to share his wealth but there is nothing to suggest that this would differ from the situation faced by most people in Samoa and I am not satisfied that such requests would not be resolved in the context of mutual rights and obligations underpinning fa’asamoa, meaning that the Applicant would not be without some form of advantage from the transaction.

54.     I do not underestimate the difficulties the Applicant would likely face in returning to take up residence in Samoa, a country he left at the age of two or three. I accept, as he said at the hearing, that this would involve a major adjustment for him, for which he would have to prepare himself mentally. I also accept that it would not be at all easy or congenial for him to make such a transition, and that in doing so he would be forced to accept a standard of living markedly lower than that he has enjoyed in Australia. He would face the added problem of leaving behind his friends and the family members he grew up with in Australia. I accept, although with some hesitation, that among these figures is a person who is his fiancÉe. I also accept that he would be recognised as a person who had spent much of his life in Australia.

55.    Having considered all the information before the Tribunal, however, I am unable to be satisfied that the Applicant would be seen as a non-Samoan or that any difficulties he might face in Samoa would result from discriminatory treatment, either by the Samoan authorities, members of his own extended family or society at large. Nor, even without the element of discrimination, am I satisfied that these difficulties, considered individually and cumulatively, would represent significant harm sufficient to bring him within the scope of Australia’s complementary protection provisions. Specifically, I am not satisfied they would involve cruel and inhuman treatment, degrading treatment or arbitrary deprivation of life.

32    At [58]–[61], the Tribunal expressed its conclusions and final decision in the following terms:

CONCLUSIONS

58.    The Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the Applicant does not·satisfy the criterion set out in s.36(2)(a).

59.    Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). Having done so, the Tribunal is·not satisfied that the Applicant is a person to whom Australia has protection obligations under s.36(2)(aa).

60.    There is no suggestion that the Applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s.36(2) for a protection visa.

DECISION

61.    The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.

The Proceedings Below

33    In the Court below, the appellant relied upon a Further Amended Application which was amended for the last time on the day of the hearing before the Court below (12 April 2013). In that document, the appellant relied upon four grounds of review. Those grounds were expressed in the following terms:

1.     The Tribunal has taken into account an irrelevant consideration, or alternatively, misconstrued the test to be applied by considering that “discrimination” is an element of cruel, inhuman or degrading treatment for the purpose of determining whether there is a real risk the Applicant will suffer significant harm;

2.     The Tribunal has misapplied the statutory test of whether there is a real risk the Applicant will suffer significant harm in that it failed to consider:

(a)    the meaning of cruel, inhuman or degrading treatment; and/or

(b)    whether breaches of the Applicant’s socio-economic rights can amount to cruel, inhuman or degrading treatment.

(c)    the meaning of “substantial grounds for believing”

Particulars

The relevant socio-economic factors are that the Applicant does not speak Samoan, does not understand Samoan culture and would have no employment prospects in Samoa. The Applicant also relies on ground (4) as a particular of this claim.

3.    In determining whether there is a real risk that the Applicant will suffer significant harm, the Tribunal failed to consider the information put forward by the Applicant being the information listed in paragraphs 29 and 31 of the RRT decision record dated 13 August 2012, namely:

(a)    Excerpt from Samoa’s national report to the UNHCR

(b)    Extract from the Encyclopedia of New Zealand

(c)    The “Faaulufalega thesis”

(d)    Country information from US State Department, DFAT, UNHCR and UNICEF

4.     The Tribunal failed to consider the RRT’s “Complementary Protection Training Manual” as information relevant to the determination of whether it is likely that the Applicant will suffer significant harm.

34    Ground 3 was ultimately not pressed and ground 4 was relied upon only as a particular of ground 2. The only grounds relevant to the appeal in this Court are grounds 1 and 2(c).

35    After setting out the relevant factual background and describing the substance of the appellant’s application in the Court below, his Honour commenced his consideration of the grounds of review ultimately relied upon at [21] of his Reasons.

36    The Circuit judge recorded that the appellant had submitted before him that the Tribunal had failed to understand the expression “substantial grounds for believing” in s 36(2)(aa) of the Act and had failed to have regard to an internal training manual deployed by the Tribunal in training its own members and staff. The judge noted that it had also been submitted by the appellant that the Tribunal was obliged to take account of international jurisprudence which might have assisted in enabling it to understand that expression.

37    His Honour rejected these submissions. At [31] of his Reasons, his Honour said that the relevant terms were defined in the Act and that the Tribunal was not obliged to consider either the training manual or extrinsic international jurisprudence.

38    At [32]–[61], the Circuit judge gave detailed reasons for these conclusions.

39    As far as ground 1 was concerned, his Honour concluded that, insofar as it depended upon the submissions advanced by the appellant in support of ground 2(c), it must suffer the same fate as ground 2(c).

40    The Circuit judge went on to consider ground 1 from a different perspective. At [64], he recorded the appellant’s submission that, by dwelling extensively on matters of “discrimination”, the Tribunal had imported this element into the relevant test. At [64]–[65], his Honour noted that, if this is what the Tribunal did, it will have erred because discrimination was not an element of the statutory definition embodied in the complementary protection provisions. His Honour concluded that the Tribunal had not imported discrimination as an element into the relevant test but rather had dealt with the appellant’s claim that he would suffer discrimination as part of its consideration of the complementary protection criterion embodied in s 36(2)(aa) of the Act (see [73]).

41    For these reasons, the Circuit judge dismissed the appellant’s application for judicial review of the Tribunal’s decision.

The Appeal in this Court

42    The Notice of Appeal filed by the appellant in this Court contains two grounds of appeal. Those grounds are:

1.    His honour Nicholls J erred in Law for failing to find and rule that the Tribunal was in error and misconstrued and applied the wrong test in regards to the Complementary Protection Visa regime in section 36(2) of the Migration Act 1958 in its definition and interpretation of and in regards to the word and phrase “substantial grounds for believing”. That the relevant test posited by the phrase established a standard that was “something less than the balance of probabilities”.

2.    His honour Nicholls J erred in law for failing to find and rule that the Tribunal denied me procedural fairness and denied me natural justice on the face of the record when the tribunal erroneously considered that “discrimination” was an element of “cruel, inhuman or degrading treatment” in its assessment of whether there was a real risk that I will suffer “significant harm” if returned to Samoa.

43    In his submissions to the Court at the hearing of the appeal, the Minister helpfully and accurately teased out the essence of the grounds of appeal relied upon by the appellant when he submitted that those grounds reflected the following complaints:

(a)    The Court below erred by finding that the Tribunal applied the correct test under s.36(2)(aa) of the Act. Specifically, it is claimed the Tribunal in considering the “substantial grounds for believing” in s.36(2)(aa) should have, but did not, apply a standard of “something less than the balance of probabilities” – cf. ground 2(c) of the Further Amended Application in the Court below (AB33).

(b)    The Court below erred by failing to find that the Tribunal failed to afford the Appellant procedural fairness by erroneously considering that discrimination was a element of “cruel, inhuman or degrading treatment” in assessing whether the Appellant would face a real risk of significant harm if returned to Samoa – cf. Ground 1 of the Further Amended Application in the Court below (AB 33).

Consideration

44    The appellant is in detention at the Villawood Detention Centre.

45    He attended the hearing of the appeal, having been brought to Court by security personnel from that facility.

46    As I have already mentioned at [12] and [20] above, the appellant is illiterate. He cannot read or write. At the commencement of the hearing of his appeal, the appellant sought an adjournment. In support of that application, he presented a document dated 4 November 2013 and signed by him. It was entitled “Application for Adjournment”. I shall mark that document as Exhibit A in the appeal.

47    The appellant sought an adjournment for the following reasons:

(a)    He said that he needed a legal representative to represent him and to prosecute his case because he was unable to do so, being uneducated and illiterate;

(b)    He said that he was unable to obtain any Legal Aid;

(c)    He said that he needed financial assistance in order to retain an appropriate lawyer. He needed time in order to secure the services of such a lawyer;

(d)    He said that his wife had just moved house and had given birth to their first daughter on 22 October 2013; and

(e)    He said that he had run out of funds and needed time to secure funds to retain an appropriate lawyer.

48    The appellant also requested that I appoint a lawyer to represent him pro bono.

49    While I had (and have) a great deal of sympathy for the appellant’s predicament, I refused the adjournment sought by him and informed him that I would give reasons for that refusal when delivering judgment in the appeal.

50    My reasons for refusing the appellant’s application for adjournment may be briefly stated.

51    First, his prospects in the appeal were considered by me to be very weak.

52    Second, there was no guarantee that the appellant would secure appropriate legal representation any time soon (especially given his lack of funds). It appeared that his application for legal aid had been refused.

53    Third, the appeal was fixed for hearing on 23 August 2013. That is now two and a half months ago. On 1 October 2013, the appellant requested that the hearing be vacated. On that occasion, I refused to vacate the hearing. In the circumstances, the appellant was on clear notice from 23 August 2013 (or 1 October 2013 at the latest) that the appeal would be going on.

54    In the end, I was not satisfied that there was any real chance that the appellant would be in a position to secure representation at any time soon let alone in sufficient time for the February 2014 sittings, being the sittings to which he was seeking to have his appeal adjourned. There was, therefore, no point in granting the appellant the adjournment which he sought.

55    For these reasons, I refused the appellant’s adjournment application.

56    The appellant did not seek to support his appeal with any submissions, either oral or written.

57    The Minister filed a Written Submission dated 25 October 2013. I did not require the Minister to supplement that Submission.

Ground 1 – The Correct Test (s 36(2)(aa) of the Act)

58    Section 36 of the Act is in the following terms:

36     Protection visas

(1)    There is a class of visas to be known as protection visas.

Note:    See also Subdivision AL.

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

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

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

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa.

(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.

(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.

Ineligibility for grant of a protection visa

(2C)    A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

(a)    the Minister has serious reasons for considering that:

(i)    the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(ii)    the non-citizen committed a serious non-political crime before entering Australia; or

(iii)    the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

(b)    the Minister considers, on reasonable grounds, that:

(i)    the non-citizen is a danger to Australia’s security; or

(ii)    the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

Protection obligations

(3)    Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4)    However, subsection (3) does not apply in relation to a country in respect of which:

(a)    the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

(5)    Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

(a)    the country will return the non-citizen to another country; and

(b)    the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

(5A)    Also, subsection (3) does not apply in relation to a country if:

(a)    the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

Determining nationality

(6)    For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

(7)    Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

59    For present purposes, s 36(2)(aa) and s 36(2A) are of particular importance.

60    Section 36(2)(aa), s 36(2A) and other related provisions (especially the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act) were introduced into the Act in 2011 by Act No 121 of 2011. Those provisions came into force on 24 March 2012.

61    In Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at 551 [242]–[248] per Lander and Gordon JJ; at 557–558 [297] per Besanko and Jagot JJ; and at 565 [342] per Flick J, it was held that s 36(2)(aa) of the Act will be satisfied where there is a “real chance” that a visa applicant would suffer significant harm as a result of his or her removal from Australia to a receiving country. Accordingly, if, in the present case, the Tribunal, in fact, applied a “balance of probabilities” test, it will have erred.

62    The Circuit judge agreed with the submission made by the Minister in the Court below that the Tribunal did not fall into the error suggested by the appellant. His Honour held that, on a fair reading of the Tribunal’s Decision Record, the Tribunal had applied the correct test. The Circuit judge made particular reference to the Tribunal’s exposition of the relevant criterion at [16]–[18] of its Decision Record and its detailed observations at [53]–[55] of its Decision Record. In my judgment, the Tribunal accurately summarised and appropriately applied the relevant principles in the passages to which I have referred. In addition, in applying s 36(2)(aa), the Tribunal did not use any language which suggested that it had adopted a “balance of probabilities” test: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 573 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

63    In any event, as submitted by the Minister, the Tribunal did not reach the stage of considering whether there was a “real chance” that the appellant would suffer serious harm. The Tribunal held that the appellant’s claim fell at the first hurdle—namely, it concluded that the harm which the appellant claimed he would suffer did not amount to “significant harm” within the meaning of s 36(2)(aa).

64    For all of the above reasons, I am of the opinion that the Circuit judge did not commit the error which the appellant submitted was committed by him. Ground 1 must be rejected.

Ground 2—The Relevance of Discrimination

65    The appellant framed this ground as a denial of procedural fairness. However, when appropriate regard is had to the language of ground 2 as specified in the Notice of Appeal in this Court, the gravamen of the appellant’s complaint is not appropriately characterised as a denial of procedural fairness. The real complaint is the complaint which was formulated by the Minister and answered by the Minister in his Written Submission.

66    As noted by the Circuit judge and accepted by the Minister, it is not necessary for a visa applicant to establish discrimination in order to satisfy s 36(2)(aa) of the Act. In this sense, discrimination is not an “element” or “prerequisite” of complementary protection.

67    The Circuit judge held that the Tribunal had not imported a requirement of discrimination into the statutory test. At [66]–[73], his Honour said:

66.    In this light, the following stands in answer to the applicant’s complaint. First, the Tribunal dealt extensively with the matter of discrimination because, on a plain reading of the applicant’s claims, discrimination was, in essence, the basis on which the applicant and his agent said he would suffer significant harm if he were to return to Samoa. See the representative’s “pre-hearing” submissions of 3 August 2012 (CB 216). Once the “imputed nationality” argument is removed, what remains is (CB 216.7):

“4. Should he be returned to Samoa, [the applicant] fears that he will be subject to severe discrimination threatening his ability to subsist.”

[Emphasis added.]

67.    In the same submission under the heading of “Complementary Protection” the agent proceeded to address, and only address, “severe discrimination”.

68.    The Tribunal understood that this was the basis of the applicant’s claim to complementary protection (see [30] at CB 245 to [31] at CB 246).

69.    At the Tribunal hearing, once the applicant had disavowed any claims to persecution under the Refugees Convention ([35] at CB 247), the applicant proceeded to put forward his reasons as to why he did not want, or would not, go back to Samoa ([36] at CB 247 to [46] at CB 249).

70.    The Tribunal saw these claims as, at least inferentially, raising a claim that the applicant would suffer discrimination if returned to Samoa. That was even though the applicant was not clear that there would be “any overt act of discrimination” ([50] at CB 249). The Tribunal accepted “discrimination” was linked to the applicant’s claim to engage Australia’s complementary protection obligations ([50] at CB 249).

71.    What relevantly follows in the Tribunal’s decision record ([53] at CB 250) is, as the Minister submits, the Tribunal addressing the applicant’s claims, as put by him and his agent, to fear significant harm. Had the Tribunal not dealt with these matters then it may be that the applicant would have sought to complain of some failure to deal with a claim, or an integer of a claim (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630).

72.    Paragraph 55 of the Tribunal’s decision record (at CB 251) on which the applicant primarily bases his attack is in my view, to be at least fairly, understood as follows. In the first sentence the Tribunal dealt with the applicant’s claims, as made by him, relevant to complementary protection. That is, the matter of discrimination. The second and third sentences make clear that the Tribunal understood the relevant test.

73.    In all, I do not understand the Tribunal to have attempted to import discrimination as an element into the relevant test. Rather, the Tribunal dealt with the applicant’s claim that he would suffer discrimination and that that was of such significance that he met the complementary protection criterion in s.36(2)(aa) of the Act. In all therefore, ground one also is not made out.

68    I agree with the learned Circuit judge’s characterisation of the relevance of discrimination to the appellant’s claims. As advanced to the Tribunal, the essence of those claims was that, if compelled to live in Samoa, the appellant would suffer severe discrimination there which would threaten his capacity to subsist. This was the way in which the appellant’s claims were put and pressed before the Tribunal and to the delegate. The observations made by the Tribunal at [55] of its Decision Record addressed those claims. All that happened was that the Tribunal correctly perceived the way in which the appellant sought to invoke the complementary protection provisions and addressed the appellant’s case in an appropriate way. In my judgment, it did not apply an incorrect test.

69    For these reasons, ground 2 must also be rejected.

Conclusions

70    The appellant has been unable to make out either of the grounds relied upon by him in this Court. Accordingly, his appeal must be dismissed with costs. There will be orders accordingly.

Associate:

Dated:    6 November 2013