FEDERAL COURT OF AUSTRALIA

SZDCD v Minister for Immigration and Border Protection [2019] FCA 326

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The appellant appeals from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”), dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”): SZDCD v Minister for Immigration [2018] FCCA 1029. The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) not to grant the appellant a Protection (Class XA) visa (“protection visa”) under s 65 of the Migration Act 1958 (Cth) (“Act”).

2    The issue on the appeal is the proper construction of ss 36(2)(aa) and 36(2A)(a) of the Act and, in particular, the scope of the concept of arbitrary deprivation of life in relation to complementary protection.

3    The Tribunal accepted that the appellant has glaucoma and heart problems on the basis of evidence provided to the Tribunal. The evidence included a letter from a general practitioner which stated relevantly that the appellant had a “significant life-threatening condition”. The general practitioner stated that the appellant was under the care of cardiologists and that certain treatment had been recommended “because of the known risk of sudden death associated with [the appellant’s] cardiac condition”. The general practitioner added:

The cardiologists have stated that it is unlikely medical care in Bangladesh is suitable to meet [the appellant’s] critical needs.

4    As to whether suitable health care would be available in Bangladesh, the Tribunal did not make a positive finding, but stated:

[T]here is nothing in the evidence before me to suggest that the Government of Bangladesh has limited treatment for people with the sort of health problems he has on an arbitrary basis such that it could be said that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will be arbitrarily deprived of his life. The definitions of ‘torture’ and ‘cruel or inhumane treatment or punishment’ in subsection 5(1) of the Migration Act require that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. As I put to [the appellant], I do not accept on the evidence before me that there is an intention to inflict pain or suffering or to cause extreme humiliation to people suffering the sort of health problems which I accept [the appellant] has. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the appellant] being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined as a result of his health problems. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

5    On the appeal, pro bono counsel for the appellant, Mr Prince, contended that the Tribunal had failed to ask itself the correct question, being whether the removal of the appellant from Australia to Bangladesh would have the prescribed consequence, namely, the arbitrary deprivation of life.

Background facts

6    The appellant is a citizen of Bangladesh, who arrived in Australia in July 1999. On 31 August 1999, he applied for a protection visa. That application, containing no claims, was found to be invalid.

7    On 20 July 2000, the appellant made a second application for a protection visa. This application was refused by a delegate of the Minister on 22 August 2000. The delegate’s decision was affirmed by the Refugee Review Tribunal on 21 August 2002. The appellant unsuccessfully sought judicial review of the Refugee Review Tribunal’s decision.

8    On 19 November 2012, the appellant lodged a third application for a protection visa. This lodgement followed the commencement of the “complementary protection criterion” for the grant of a protection visa in s 36(2)(aa) of the Act on 24 March 2012. An application for a protection visa in these circumstances was permitted, despite the prohibition in s 48A of the Act, on the authority of SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235. However, it was confined to consideration of the complementary protection criterion only: Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366.

9    The appellant’s claims for complementary protection are set out in detail in the judgment of the FCCA judge. They included claims concerning the appellant’s political opinion and activities; and his political opinion and wealth, which were rejected by the Tribunal. They are not relevant to the appeal.

10    Of relevance to this appeal, the appellant claimed that medical care in Bangladesh would not meet his critical health needs, described above.

FCCA Proceeding

11    The application to the FCCA contained two grounds of judicial review.

12    The first, that the Tribunal erred when it disregarded certain documents, was rejected by the FCCA judge and is not the subject of this appeal.

13    The second ground of review was:

[T]he tribunal erred in law when he failed to consider that I would not be able to get adequate treatment for my health conditions were I returned to Bangladesh. He failed to consider that as a result of lack of treatment that I may end up dead.

14    The relevant passages of the judgment of the FCCA judge are the following:

[58]    Ground 2 does not reflect the Tribunal’s reasoning. The Tribunal adverted to the medical treatment available to the Applicant in Bangladesh, but did not accept that the Applicant’s health problems could found a claim to require protection under the complementary protection criterion of the Act.

[59]    There was no evidence before the Tribunal, as the Tribunal states in its decision, and the Applicant has not pointed to any evidence, to suggest that the government of Bangladesh has limited treatment on an arbitrary basis for people with the sort of health problems the Applicant [has]. What the Tribunal did was look at the medical evidence and apply the provisions of the Act, namely s.36(2)(aa), the definition of significant harm in s.36(2A), and the definitions in s.5(1) of the Act as to the various terms used within s.36(2A). As the First Respondent’s legal representative put it, the prospect of dying of a health condition that the Applicant suffers from is not, “without more”, a subject matter than enlivens the application of the criterion for complementary protection under the Act.

[60]    Under s.36(2A), and the definition in s.5(1) of the Act, a non-citizen would suffer significant harm, in the present case, in Bangladesh, if, among other things, they would be “arbitrarily deprived of life”, or subject to “torture” or “cruel or inhuman treatment or punishment”. There is no evidence that the Applicant would be denied medical treatment on an arbitrary basis if he was returned to Bangladesh. It is also apparent in [51] of the Tribunal’s decision, that the Tribunal had regard to the definitions of “torture”, and “cruel or inhuman treatment or punishment” which requires that pain or suffering be “intentionally inflicted”, and the definition of “degrading treatment or punishment”, which requires the act or omission be “intended to cause” extreme humiliation. Having regard to the definitions of “torture”, and “cruel or inhuman treatment or punishment” in s.5(1), there is no evidence that the Applicant would be intentionally subjected to these sorts of harm if he was returned to Bangladesh.

[61]    Given that lack of evidence I have referred to, it was open to the Tribunal to find that the evidence did not disclose any intention to inflict pain or suffering, or cause extreme humiliation to people suffering from the sort of health problems which the Applicant has, and, I note, which the Tribunal accepted that the Applicant has.

[62]    In short, the findings of the Tribunal in relation to ground 2 were findings that were open to the Tribunal on the evidence before it, and I so find. The application of the requirement for a relevant intention by the Tribunal is consistent with SZTAL v Minister for Immigration and Border Protection (2017) HCA 34; (2017) 347 ALR 405 at [26], which is to the natural and ordinary meaning of the word “intends”, and therefore to actual subjective intent, to achieve, in the present case, the relevant harm, cruel or inhuman treatment, or punishment, or to arbitrarily deprive the Applicant of life:

[26]    The reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective, intent. As Zaburoni confirms, a person intends a result when they have the result in question as their purpose.

[63]    I find that the Tribunal approached the claim of the Applicant as to his health concerns correctly, and applied the correct test. Ground 2 otherwise seeks a merit review. That is not a review available in this Court on this application for judicial review.

[64]    In conclusion, I find that ground 2 is not made out, and I dismiss it.

Appeal to this court

15    The appellant’s notice of appeal contains the following four grounds of appeal:

(1)    The FCCA judge erred (at [60] of her Honour’s reasons) by construing s 36(2)(aa) as requiring the appellant to establish that he would be arbitrarily deprived of medical treatment if he returned to Bangladesh rather than considering whether he would be arbitrarily deprived of his life as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

(2)    The FCCA judge erred (at [62] of her Honour’s reasons) by finding that the requirement to identify an actual subjective intention to cause harm extended to the question of “arbitrary deprivation of life” for the purposes of ss 36(2)(aa) and (2A)(a) of the Act.

(3)    The FCCA judge erred (at [63] of her Honour’s reasons) in finding that the Tribunal applied the correct test in considering whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there is a real risk that he will be arbitrarily deprived of his life.

(4)    The FCCA judge erred (at [65] of her Honour’s reasons) by finding that the appellant had not demonstrated any jurisdictional error affecting the decision of the Tribunal.

16    Appeal grounds 3 and 4 do not raise any issue separate from appeal grounds 1 and 2.

Legal framework

17    As at the date of the Tribunal’s decision on 25 February 2016, s 36 of the Act provided relevantly:

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

…

(aa)    a non-citizen in Australia … 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;

…

(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:

…

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

Appellant’s submissions

18    The appellant noted that s 36(2)(aa) directs attention to the possible consequences of the act of removing a non-citizen from Australia to a receiving country: in this case, the removal of the appellant from Australia to Bangladesh.

19    The appellant observed that no authority was cited for the proposition, accepted by the FCCA judge at [59] of her Honour’s reasons, that the prospect of the appellant dying of a health condition from which he suffers was not, without more, a circumstance that enlivens the application of the criterion for complementary protection under the Act.

20    The appellant argued, based on [59] and [60] of her Honour’s reasons, that the FCCA judge considered that the appellant was required to demonstrate that he would be offered only limited medical treatment by the Bangladeshi government or denied medical treatment in Bangladesh on an arbitrary basis.

21    The appellant contended that this approach had the effect of “superimposing an additional requirement beyond the terms of s 36(2)(aa)” and also requiring an analysis of the intentions behind the health policies of Bangladesh as the receiving country rather than an analysis of whether the act of removal from Australia would have the necessary and foreseeable consequence (not intention) of arbitrarily depriving the appellant of his life.

22    The appellant noted that, in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 (“SZTAL”) at [26], the requirement of actual subjective intent in ss 36(2A)(c) to (e) arose from the definitions of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5 of the Act, each of which contained a reference to intention. He argued that, in contrast, there is no definition by which a requirement of intention is imported into s 36(2A)(a), which is concerned with a consequence rather than intention.

23    The appellant argued that the ordinary meaning of the word “arbitrarily” clearly embraces situations that are random.

24    The appellant submitted that the approach of the FCCA judge in MZAAJ v Minister for Immigration & Anor [2015] FCCA 151 imposed a gloss on the language of s 36(2)(aa), read with s 36(2A)(a), that is not justified. In that case, at [41], the FCCA judge noted that the Tribunal did not consider that the prospect of the applicant dying as a result of being unable to access dialysis in Sri Lanka would fall within the concept of the arbitrary deprivation of life. The FCCA judge held that the Tribunal was correct in this conclusion. At [42], the FCCA judge stated:

The concept of arbitrary deprivation of life concerns such things as extrajudicial killing and the excessive use of police force. It does not concern the consequence of scarce medical resources in developing countries.

25    An appeal from the FCCA judge’s decision was dismissed: MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478. At [6], after referring to ss 36(2)(aa), 36(2A) and 36(2B), Pagone J concluded:

These provisions were considered by the Tribunal, as the Federal Circuit Court correctly observed above, and were correctly applied. The words “arbitrarily deprived” are to be given their ordinary meaning: see SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, [90]. In this case the Tribunal found that any lack of adequate medical treatment would not result from the first appellant’s ethnicity or particular circumstances but from the general circumstances faced by all Sri Lankans. The Tribunal did not expressly mention s 36(2B)(c) in its reasons but did find, for the purposes of that provision, that the risk of harm from inadequate medical treatment was a risk faced by all Sri Lankans when concluding that the first appellant would be excluded from the operation of the complementary protection regime.

26    An application for special leave to appeal was also dismissed: MZAAJ v Minister for Immigration and Border Protection [2015] HCATrans 236.

27    On the evidence accepted by the Tribunal, the appellant argued, there is a real risk that the appellant will be arbitrarily deprived of life as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh because his medical condition is life threatening and he will not receive the critical care he needs in Bangladesh.

28    Thus, the appellant contended, ground 1 of the appeal is made out because the FCCA judge (at [60] of her Honour’s reasons) wrongly construed s 36(2)(aa) as requiring the appellant to establish that he would be arbitrarily deprived of medical treatment if he returned to Bangladesh rather than requiring him to establish the fact, demonstrated by the evidence, that there is a real risk the appellant will be arbitrarily deprived of life as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh.

29    Further, the appellant argued, ground 2 of the appeal is made out because the FCCA judge (at [62] of her Honour’s reasons) incorrectly misapplied the reasoning in SZTAL to s 36(2A)(a) by incorporating a requirement of intentional deprivation of life.

30    The appellant sought to distinguish his position from that of Bangladeshis generally by noting that he is currently receiving medical treatment in Australia. Therefore, the appellant submitted, the act that will arbitrarily deprive him of his life is his removal by the Australian government from Australia to Bangladesh.

Minister’s submissions

31    In relation to the first ground of appeal, the Minister contended that the FCCA judge’s decision was correct for the reasons given by her Honour.

32    In relation to the second ground of appeal, the Minister submitted:

(1)    The FCCA judge did not purport to imply into “arbitrary deprivation of life” an element of actual subjective intention. This is apparent from [59]-[61] of her Honour’s reasons, wherein the FCCA judge confined the discussion of relevant intent to the concepts of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” – that is, those types of significant harm set out in s 36(2A) of the Act whose statutory definition (in s 5(1) of the Act) expressly includes an intention element. In particular, the primary judge:

(a)    set out what will constitute “significant harm” for the purposes of s 36(2A) of the Act at [60] of her Honour’s reasons; and

(b)    made a clear distinction between the question of “arbitrary deprivation of life”, and that of “torture”, “cruel or inhuman treatment or punishment”, and “degrading treatment or punishment”.

(i)    As to the former, the FCCA judge found that the Tribunal had properly applied the law in respect of whether the appellant would be “arbitrarily deprived of his or her life” for the purposes of s 36(2A)(a) of the Act, by finding that this test was not met in the absence of any evidence that suggested that the Government of Bangladesh arbitrarily limited medical treatment of people with similar health problems to the appellant.

(ii)    As to the latter, the FCCA judge identified that the Tribunal had proper regard to the definitions of “torture” and “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” as set out in s 5(1) of the Act, each of which involves an intention element. The primary judge found that it was open to the Tribunal to find that the evidence did not disclose any intention to inflict pain or suffering, or cause extreme humiliation, to people suffering from the sort of health problems of the appellant.

(2)    The FCCA judge correctly identified the test for significant harm for the purposes of s 36(2A) of the Act, and properly found that the Tribunal adopted the correct approach and reached findings open to it on the question of whether the appellant would suffer significant harm if returned to Bangladesh due to his medical issues.

(3)    To the extent that the FCCA judge included “arbitrary deprivation of life” in the discussion of subjective intention as outlined in SZTAL at [26], the appellant has not demonstrated that this constitutes an error. The phrase “arbitrarily deprived of his or her life” is not defined further in the Act, but the words “arbitrarily deprived” are to be given their ordinary meaning.

(4)    Furthermore, case law indicates that arbitrary deprivation of life concerns such things as extrajudicial killing and the excessive use of police force, and does not concern the consequences of scarce medical resources in developing countries.

Consideration

First ground of appeal: interpretation of ss 36(2)(aa) and 36(2A)(a)

33    Section 36 was substantially amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth). The Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) states that the purpose of the amendments in the Bill is to establish a system for considering complementary protection claims, which will enhance the integrity of Australia’s arrangements for meeting its non-refoulement obligations under the International Covenant on Civil and Political Rights (“ICCPR”) and “better reflect Australia’s longstanding commitment to protecting those at risk of the most serious forms of human rights abuses”. The Explanatory Memorandum also states that the test set out in s 36(2)(aa) “is reflected in the views of the United Nations Human Rights Committee in its General Comment 31 as to when a non-refoulement obligation will arise under the Covenant”.

34    The language of arbitrary deprivation of life reflects the terms of Art 6(1) of the ICCPR, which provides: “[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”.

35    In relation to Art 6(1), Joseph and Castan writing in The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd ed, Oxford University Press, 2013) state at [8.04], relevantly:

“[A]rbitrary” is a broader concept than “unlawful”. That is, a killing may breach article 6 even though it is authorised by domestic law. The prohibition on the “arbitrary” deprivation of life signifies that life must not be taken in unreasonable or disproportionate circumstances. Some indicators of the arbitrariness of a homicidal act are the intention behind and the necessity for that action.

36    At [8.75], Joseph and Castan address the environmental and socio-economic aspects of Art 6 and state that the Human Rights Committee has confirmed that Art 6 has a socio-economic aspect by reference to the following comment:

Moreover, the Committee has noted that the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.

The reference to ‘desirability’ may indicate that States have a moral ‘soft law’ obligation, rather than a legal ‘hard law’ duty, to tackle problems such as high infant mortality and low life expectancy.

37    In SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; (2015) 229 FCR 497 at [88] to [92], the Full Court considered the prohibition on arbitrary deprivation of life in the ICCPR, saying:

[88]    Notwithstanding that the right to life is described in some human rights contexts as a “supreme right”, and seen as non-derogable (see, for example the United Nations Human Rights Committee General Comment No. 6, Art 6, “The Right to Life” (30 April 1982), as Hathaway and Foster observe in The Law of Refugee Status (2nd ed, Cambridge University Press, 2014) at p 208, international law does not protect life in an absolute and unqualified way. As the authors point out, the International Covenant on Civil and Political Rights 1996 … (ICCPR) prohibits “arbitrary” deprivation of life, a prohibition of most obvious relevance to countries where the death penalty remains available as a form of criminal punishment. What will constitute an “arbitrary” deprivation of life will be informed, in any given case, by the nature and use of any law of general application which imposes the death penalty: see, for example, the discussion by Hathaway and Pobjoy in “Queer Cases Make Bad Law” (2012) 44 NYU J Int’l L & Pol 315-389 of punishment imposed in some countries for homosexual conduct.

[89]    In relation to liberty or freedom (assuming those terms may be used interchangeably in this context), the protection afforded by international human rights law is also conditioned in at least two general ways. First, the protection extends only to deprivations of liberty that are not “on such grounds and in accordance with such procedures as established by law”. Secondly, the protection will extend to deprivations of liberty which, although in accordance with domestic law, are “arbitrary”: see, for example, the ICCPR Art 9(1) and the findings of the UN Human Rights Committee in Van Alphen v The Netherlands 3 NZBORR 326. In Van Alphen, the Committee said (at [5.8]) that:

The drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.

[90]    In the similar human rights context of an “arbitrary” interference with privacy, the Victorian Court of Appeal has described arbitrariness as “concerned with capriciousness, unpredictability, injustice and unreasonableness – in the sense of not being proportionate to the legitimate aim sought”: WBM v Chief Commissioner of Police (Vic) [2012] VSCA 159; (2012) 230 A Crim R 322 at [114] per Warren CJ.

[91]    These references to the approaches taken in international human rights law are not intended to depart from or undermine the current approach to laws of general application and the concept of “being persecuted” under Australian law, which is one based more in constitutional concepts of laws being “reasonably appropriate and adapted to achieving some legitimate object of the country of the refugee” (see Applicant A at 258 per McHugh J; Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Appellant S395) at [49] per McHugh and Kirby JJ).

[92]    Rather, the purpose of these references is to demonstrate that, even in what might be perceived to be the most general analytical framework for the concept of “being persecuted” – namely, international human rights law – a risk of deprivation of life or liberty, or life or freedom, even if well-founded, will not necessarily bring a person within that concept. A fact finding exercise evaluating the particular circumstances in which such deprivations will occur must be undertaken.

38    The language of s 36(2)(aa) required the Minister to consider the necessary and foreseeable consequences of the appellant being removed from Australia to Bangladesh. The phrase “being removed” is certainly wide enough to comprehend the consequences of the events that comprise the removal of a non-citizen from Australia to a receiving country and, to that extent, may cover events that occur prior to the arrival of a non-citizen in a receiving country such as the loss of access to medical treatment.

39    The “necessary and foreseeable consequence” that invokes the operation of s 36(2)(aa) is “a real risk that the non-citizen will suffer significant harm” of the kind identified in s 36(2A).

40    The Macquarie Dictionary (Online) defines “arbitrary” as follows:

adjective 1. subject to individual will or judgement; discretionary.

2. not attributable to any rule or law; accidental: *the only significance her smile could have had was that of an arbitrary, not to say perverse, decoration. –patrick white, 1976.

3. capricious; uncertain; unreasonable: *The next thing to provoke him was the arbitrary way in which she disposed of his personal liberty. –henry handel richardson, 1925.

4. uncontrolled by law; using or abusing unlimited power; despotic; tyrannical: *In fact Aboriginal society has been kept in continual tension by what appeared to Aborigines arbitrary and pointless interference with their lives –cd rowley, 1970.

5. selected at random or by convention: an arbitrary constant.

41    The same Dictionary defines the verb “deprive” to mean:

1. to divest of something possessed or enjoyed; dispossess; strip; bereave.

2. to keep (a person, etc.) from possessing or enjoying something withheld.

3. to remove (an ecclesiastic) from a benefice; to remove from office.

42    The Oxford English Dictionary (Online) provides the following three potentially relevant definitions of “arbitrary”:

2. Law. Relating to, or dependent on, the discretion of an arbiter, arbitrator, or other legally-recognized authority; discretionary, not fixed.

3. Derived from mere opinion or preference; not based on the nature of things; hence, capricious, uncertain, varying.

4. Unrestrained in the exercise of will; of uncontrolled power or authority, absolute; hence, despotic, tyrannical.

43    In construing s 36(2A)(a), the other sub-sections of s 36(2A) provide relevant context: cf. Federal Commission of Taxation v Applegate [1979] FCA 66; (1979) 38 FLR 1 at 4. Each of these refers to the deliberate imposition of harm upon the non-citizen by a third party. As described by the Explanatory Memorandum, ss 36(2A)(b) to (e) are self-evidently directed to serious forms of human rights abuses.

44    In context, a non-citizen may be “arbitrarily deprived of his or her life” by lawful or unlawful action that is demonstrated to have elements of capriciousness, inappropriateness, injustice or lack of predictability. Section 36(2A)(a) is concerned with the risk of significant harm in the nature of the serious human rights abuse that is the arbitrary deprivation of a person’s life.

45    The first ground of appeal indicates that the FCCA judge’s error in construing s 36(2)(aa) is reflected in [60] of her Honour’s reasons. In that passage, her Honour does not address solely the possible application of s 36(2A)(a) but, rather, the broader question arising under s 36(2)(aa), namely, whether the Tribunal erred in failing to accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there was a real risk that the appellant would suffer “significant harm” as defined by s 36(2A).

46    The Minister did not dispute that the FCCA judge construed s 36(2)(aa) as requiring the appellant to establish that he would be arbitrarily deprived of medical treatment if he returned to Bangladesh. That is, the FCCA judge (and the Tribunal) considered that the question of the consequences of the appellant’s removal from Australia to Bangladesh was to be determined by reference to the risk of harm to the appellant in Bangladesh. The FCCA judge did not treat as a relevant consideration the impact upon the appellant of being removed from Australia to Bangladesh arising from the loss of access to medical treatment available to him in Australia. However, on the facts of this case, that consideration is the obverse of the lack of access to medical treatment in Bangladesh.

47    The first sentence of [60] of her Honour’s reasons is a statement about the relevant law. As noted above, the second sentence is relevant to whether a finding of “significant harm” was open within the meaning of s 36(2A)(a). The third sentence is a correct statement about the Tribunal’s reasons and does not appear to be directed to an application of s 36(2A)(a), but rather to other aspects of the definition of “significant harm”. The fourth and final sentence is uncontentious. Thus, I do not accept that [60] of the FCCA judge’s reasons reveals any error.

48    Dealing with the appellant’s other submissions set out above:

(1)    The observation, at [59] of her Honour’s reasons, that the prospect of dying of a health condition was not, without more, a subject matter that enlivened the application of the criterion for complementary protection under the Act, must be correct. The words “arbitrarily deprived” imply conduct which is responsible for the deprivation of a person’s life. Further, they do not cover such a deprivation of life unless it may be characterised as “arbitrary”. Dying of a health condition may be expected or unexpected but the requirement of arbitrariness operates to characterise the conduct by which a person is deprived of his or her life.

(2)    Accordingly, I do not accept that the decisions in MZAAJ place any gloss on the language of s 36(2)(aa).

(3)    In considering the circumstances in which the appellant would not receive adequate medical treatment in Bangladesh, the FCCA judge was not imposing an additional requirement. Rather, her Honour was effectively addressing the problem that the appellant had not identified a risk of “arbitrary” deprivation of life.

(4)    The word “arbitrarily” in s 36(2A)(a) may address situations that are “random” but it is necessary to consider whether the random nature of a situation is one that involves a risk of being “arbitrarily deprived” of life.

(5)    While the appellant may suffer the loss of his life as a result of losing access to medical treatment currently available to him in Australia, those facts are insufficient to support a conclusion that there is a risk to him that he will be “arbitrarily deprived of his life” as a consequence of his removal to Bangladesh because they do not involve an arbitrary conduct.

(6)    On the facts, the Australian government’s removal of the appellant will not arbitrarily deprive him of his life. That act would be deliberate; it can be presumed that it will be effected lawfully, and it has no quality of randomness. Further, it will not deprive the appellant of his life, although it may not be protective of his life. Rather, it will deprive the appellant of his present access to medical treatment.

Second ground of appeal

49    In my view, the FCCA judge erred in finding that an “actual subjective intent” to arbitrarily deprive the appellant of life is required by s 36(2A)(a). The requirement of a relevant intention in relation to other sub-paragraphs of s 36(2A) arises from the definitions in the Act of the words in those sub-paragraphs. There are no comparable definitions in relation to s 36(2A)(a).

50    However, this error does not affect the correctness of her Honour’s ultimate conclusion, namely, that the Tribunal’s decision was not affected by jurisdictional error because the Tribunal’s relevant findings did not depend upon a finding of “actual subjective intent”.

Conclusion

51    The appellant’s circumstances warrant a great deal of sympathy.

52    However, the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    13 March 2019