FEDERAL COURT OF AUSTRALIA

AJI16 v Minister for Immigration and Border Protection [2019] FCA 1769

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    This is a refugee appeal. The Appellant is a citizen of Bangladesh who arrived in Australia from Kuwait in 2008 on a short stay business visa. Subsequently, he applied for a protection visa but this was refused on review by the Administrative Appeals Tribunal (‘the Tribunal’). That decision was then challenged in the Federal Circuit Court but that challenge was also rejected. He now appeals to this Court.

2    There are four elements of the Appellant’s position that should be set out to understand the appeal. First, the Appellant has a heart condition and high cholesterol for which he must take medication. He is concerned that if he is returned to Bangladesh he will not have access to these drugs and will die. Secondly, the Appellant’s passport shows that he voluntarily returned to Bangladesh in 2004, 2005 and 2007 (from Kuwait where he was then working). Thirdly, he claims to have been involved in a demonstration against a political party called Jamaat in around 1992 or 1993. At this demonstration there had been 500 or 600 people and some of the Jamaat members had been killed. The Appellant claims that the relatives of some of those killed wish to take their revenge upon him. Fourthly, the Appellant made a prior but unsuccessful application for a protection visa, the refusal of which was affirmed by what was then the Refugee Review Tribunal (‘RRT’). Following that he requested the Minister on two occasions personally to intervene in his case. Those applications were processed by the Department (and eventually the Minister). These activities resulted in the creation of a Departmental file. That file was provided to the Tribunal when it came to consider the Appellant’s review application but parts of it were not provided to the Appellant. The most significant of the documents which were not provided was a briefing memorandum to the Minister which noted that the RRT had not accepted the Appellant’s account in affirming the manner in which the Department had refused his initial protection visa application.

Ground One

3    The first ground of appeal relates to a submission that the Tribunal had failed properly to consider his claims under s 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’). Section 36(2) sets out four alternative criteria for the grant of a protection visa to a non-citizen who is in Australia. The second of these in s 36(2)(aa) is that the applicant is a person who the Minister is satisfied is owed 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 (here Bangladesh), there is a real risk that the non-citizen will suffer ‘significant harm’.

4    However, the Tribunal explicitly referred to this matter at [58]-[61]:

58.    Based on the evidence before it, the Tribunal finds that the inadequacies of the Bangladeshi health care system that the applicant may face on his return to Bangladesh do not amount to significant harm. It does not constitute the carrying out of the death penalty or torture or arbitrary deprivation of life. The country information indicates that any failure to provide the applicant with health care treatment or support will be due to the Bangladeshi economy rather than any intentional act or omission. Therefore, it is not cruel or inhuman treatment or punishment or degrading treatment or punishment as defined by the Act. The Tribunal also finds that the risk of harm due to inadequate health care services in Bangladesh is one faced by the population of Bangladesh generally and not faced by the applicant personally. Therefore, it is not a real risk that the applicant will suffer significant harm in Bangladesh pursuant to s.36(2B)(c) of the Act.

59.    In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm or any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

60.    Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.

61.    Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

5    Consequently, I cannot accept the submission that the Tribunal failed properly to consider this matter. The Federal Circuit Court did not address this issue since the argument was not advanced before it and it was pursued in this Court as a fresh matter. Leave is therefore required to raise the matter. I would not grant leave since the argument is not tenable.

Ground Two

6    The second ground of appeal had two aspects to it. The first aspect concerned the fact that the Appellant had voluntarily returned to Bangladesh in 2004, 2005 and 2007 as was shown in his passport. The Tribunal reasoned that his voluntary return to Bangladesh was inconsistent with his claim that members of Jamaat were looking for him so as to take revenge on him for the death of members of Jamaat in the procession in 1998. The reference to 1998 was erroneous and should have been a reference to 1992 or 1993. However, nothing turns on that. The Tribunal’s actual reasoning was at [27]:

The applicant’s evidence is that he went to Kuwait in 1998 and thereafter returned to Bangladesh on several occasions. He gave evidence to the Tribunal that he returned to Bangladesh on 3 or 4 occasions. When asked for the details, he stated that the first occasion was in 1998 when he stayed in Bangladesh for 1 month, the second occasion was in 2002 or 2003 when he stayed in Bangladesh for 1 ½ months and the third occasion was in 2007 when he stayed in Bangladesh for 2 months. He stated that he did not return to Bangladesh on any other occasions. His passport indicates that he travelled to Bangladesh in 2004, 2005 and 2007. The applicant’s voluntary return to Bangladesh on several occasions and his extended stay in Bangladesh with no problems is not consistent with his claims that members of Jamaat are looking for him to take revenge on him for the death of members of Jamaat in the procession at the end of 1998.

7    The Tribunal was obliged by s 424A(1)(a) to give the Appellant in the way it considered appropriate clear particulars of information that the Tribunal considered would be the reason for affirming the decision under review. By s 424AA(1)(a) this may be done orally at the hearing which, by s 424A(2A), discharges the obligation under s 424A(1). The Appellant submits that the information concerning his return to Bangladesh as demonstrated by his passport was not put to him under s 424A(1)(a). At p 31 of the transcript of the hearing in the Tribunal the following exchange occurred:

MEMBER: You voluntarily returned to Bangladesh on a number of occasions. You stayed in Bangladesh for extended periods, you've had no problems when you've returned to Bangladesh. That's not consistent with your claims, and it raises concerns for me about the credibility of your claim as to why you can't return to Bangladesh.

Q: Do you want to make any response to that? Did you want to say anything about that?

A. INTERPRETER: What can I say? I don’t want to go back to that country, where people do not respect each other, there is no humanity.

8    It is true that this does not refer to the passports. But it was not the passports which formed the basis of the reasoning in [27]; it was the fact of his voluntary return to Bangladesh. That matter was put to him at p 31. Consequently, this aspect of the ground 2 is not made out.

9    The second aspect of ground 2 concerned [39] of the Tribunal’s reasons:

The records of the Department indicated that the applicant came to Australia on 19 November 2008 on a temporary Short Stay Business visa. He claimed that he was involved in organising the protest in Kuwait in 2008 and had to flee Kuwait because his life was at risk. He claimed that he was on a ‘Wanted List’ in Bangladesh and was warned that it was too dangerous for him to return to Bangladesh. Yet he waited until 24 December 2008 to lodge his first application for a Protection visa. The records of the Department indicate that he was informed in August 2013 that he could lodge a second application for a Protection visa. However, he waited until 19 February 2014 (some 6 months later) to lodge his second application for a Protection visa. His delay in lodging both his applications for Protection visas raises concerns in relation to the credibility of his claims. When the Tribunal raised this as an issue with the applicant, he declined to respond.

10    It was said that these delays had not been put to the Appellant in accordance with s 424A(1). However, at p 30 of the transcript this appears:

MEMBER: The records of the Department of Immigration indicate that you came to Australia on 19 November 2008 on a temporary short stay business visa. You claim that you were involved in organising the protests in Kuwait, and you had to flee Kuwait because your life was at risk. You claim that you were on a wanted list in Bangladesh, and you were warned that it was too dangerous for you to return to Bangladesh.

Yet you waited until 24 December 2008 before you lodged your first application for a protection visa. The Department of Immigration informed you in August 2013 that you could lodge a second application for a protection visa, however you waited until six months later, until 19 February 2014, to lodge your second application for a protection visa.

These delays raise serious concerns for me in relation to your credibility and the credibility of your claims.

Q. Would you like to make any comment on or response to that information now?

A. INTERPRETER: No.

11    Consequently, it is not correct that s 424A was not complied with. The Tribunal discharged its obligation under s 424A by electing to put the information to the Appellant under s 424AA. In doing so, the Tribunal gave sufficiently clear particulars as required by the statute. Ground 2 was not raised before the primary judge and hence leave is required before it can be raised on appeal. I would decline leave because the ground has no prospects of success.

Ground Three

12    The third ground of appeal also concerns s 424AA but is cast in more general terms. It is said that the Tribunal had not allowed the Appellant to respond in writing to the concerns it put to him. After the Tribunal elected to proceed under s 424AA, it was obliged to inform him that he could seek additional time to comment or respond to any such information by s 424AA(1)(b)(iii) and that the Tribunal could grant such an indulgence by s 424AA(1)(b)(iv). However, the Tribunal did so at p 27 of the transcript:

MEMBER: I want to talk to you about something important. I have information before me which would be the reason or part of the reason for affirming the decision made by the Department of Immigration. This information is important because it could lead me to the conclusion that you are not owed complementary protection. If I come to this conclusion, I would then have to make the same decision that the Department of Immigration made.

This would mean that your application to the tribunal would not be successful, and you would not be entitled to a protection visa. I will tell you what the information is, and I will give you an opportunity to comment on or respond to that information. You are not obliged to do so immediately, you can ask for additional time to do so. If you ask for additional time, I will consider whether or not I should adjourn this hearing to give you that additional time.

13    This argument cannot succeed. As with grounds 1 and 2, this argument was not pursued before the Federal Circuit Court and can only be raised with leave. I would decline to grant that leave since it has no prospects of success.

Ground Four

14    The fourth ground of appeal is that the Tribunal denied the Appellant procedural fairness. He says that the Tribunal acted on information which was adverse to him without affording him an opportunity to comment upon it. The information was contained in pp 118-129 of the Departmental file for the Appellant. These documents were not provided to the Appellant because of a certificate that had been issued in respect of them (I return to this certificate shortly). The documents were as follows (taking into account an apparent misnumbering at pp 127-128):

15    I have examined each of these documents carefully. Only the Departmental note of 25 February 2010 and the submission to the Minister dated 1 March 2010 are of any relevance. However, the submission only says that it recommends in the Appellant’s case (and a number of other cases too) that the Minister not exercise the public interest power to substitute a more favourable decision for a decision of the RRT in s 417. It is apparent from the submission that the Department’s note was provided to the Minister. The note sets out in a summary form the Appellant’s claims. It does not contain information which is at all adverse to the Appellant. Under the heading ‘Other Information’ it contains this statement:

•    The RRT noted that after he claimed to have fled Kuwait in fear of the [Bangladesh Nationalist Party], he made return trips to Bangladesh. The RRT did not accept that this behaviour is consistent with a person who has a well-founded fear of persecution.

•    The RRT did not accept that he would have trouble seeking the Awami Jubo League’s intervention should he be in any difficulty upon returning, as this wing of the party is now in Government in Bangladesh.

•    The RRT was not satisfied that there is any real chance of him suffering harm in Bangladesh amounting to persecution for any Convention reason.

16    And at the end of note there is this statement:

Other information relevant to the Minister’s consideration of the exercise of the power under section 417 of the Migration Act 1958:

•    The circumstances of the case are neither unique nor exceptional.

•    There are no issues which engage Australia’s obligations under the Convention Against Torture, the Convention on the Rights of the Child, or the International Covenant on Civil and Political Rights.

17    The Tribunal did not provide the Departmental note (or the other documents) to the Appellant for comment because they had been provided to it by the Department under a cover of a certificate dated 2 July 2014. It purported to certify that disclosure of the documents ‘would be contrary to the public interest’. Section 438(1) of the Act provides:

438 Tribunal’s discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

18    The relevant portion of the certificate was as follows:

I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 118-129 inclusive of file number CLF2009/1304. The disclosure of this information would be contrary to the public interest because it relates to internal working documents and business affairs.

19    The certificate is invalid. The documents are not ones which would attract a claim for public interest immunity. Consequently, s 438 was not engaged and did not prevent the Tribunal from giving the Appellant, relevantly, the Departmental note of 25 February 2010.

20    However, neither at the hearing nor in its reasons did the Tribunal refer to the Departmental note. It did refer to the Appellant’s request for Ministerial intervention at [35]-[36] of its reasons:

35.    The applicant made a request for Ministerial intervention on 2 December 2009. In that request, he stated that the Bangladeshi government wanted to detain him because of his involvement in the protest in Kuwait. During the Tribunal hearing in relation to his first application for a Protection visa on 19 May 2009, he stated that he and a small group of people were invited to the Bangladeshi Embassy in Kuwait to discuss with the Bangladeshi Foreign Minister the problems faced by Bangladeshi workers in Kuwait. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and stated that it found it unlikely that he would have been invited to a meeting with the Foreign Minister if he was of adverse interest to the Bangladeshi government and they wanted to detain him. The Tribunal also noted that this information is not consistent with the evidence he gave to the Tribunal and these issues raised concerns in relation to the credibility of his claims. The applicant declined to respond.

36.    The applicant made a request for Ministerial intervention on 2 December 2009. In that request, he stated that he was warned not to return to Bangladesh as he had been blacklisted as a criminal. He claimed that he was too scared to return to Bangladesh. He wrote to the Minister again on 20 August 2013. In that letter he claimed that his name is on the list of wanted people at Dhaka airport. Yet he was able to renew his passport twice on 17 February 2009 and 3 March 2014. This tends to indicate that he had no problem with approaching the Bangladeshi government to renew his passport and the Bangladeshi government had no problem renewing his passport. This also tends to indicate that he is not of adverse interest to the Bangladeshi government and this raises concerns in relation to the credibility of his claims. When the Tribunal put this information to the applicant, pursuant to s.424AA of the Act, he declined to respond.

21    These contradictions were put to the Appellant at pp 28-29 pursuant to s 424A:

MEMBER: You made an application for ministerial intervention on 2 December 2009. In that application you said that you were warned not to return to Bangladesh as you had been blacklisted as criminal. You claimed that you were too scared to return to Bangladesh. You wrote to the minister again on 20 August 2013. In that letter you said that your name is on a list of wanted people at the Dhaka (indistinct).

In spite of your claim that you were blacklisted as a criminal and you were on a wanted list, you were able to renew your passport on 17 February 2009, and again on 3 March 2014. This tends to indicate that you had no problem with approaching the Bangladeshi Government, and the Bangladeshi Government has had no problem with you renewing your passport.

This tends to indicate that you are not of adverse interest to the Bangladeshi Government. This raises concerns for me in relation to the credibility of your claims.

Q. Would you like to make any comment on or response to that information now?

A. INTERPRETER: No.

22    Neither of these relate to the views of the RRT described in the Departmental note. I would not be prepared to infer that the Tribunal utilised any of the information in the Departmental note in reaching its decision. The Appellant submitted that the contents of the note would have influenced the Tribunal’s assessment of his credibility. I do not accept that. I would not exclude entirely that it might be possible to show that a decision-maker had reasons for a decision which are not expressed in its written reasons although s 430 of the Act is an obstacle to that contention. It has been held that if a finding of fact is not set out in the reasons this may indicate that the Tribunal did not consider the fact to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (‘Yusuf’) at 330 [5] per Gleeson CJ and 338 [37] per Gaudron J. Similar reasoning may support the contention that if a particular reason does not appear in the Tribunal’s reasons for decision then it may be inferred from s 430 that the reason was not one of the Tribunal’s reasons for decision.

23    Assuming in the Appellant’s favour that Yusuf does not prevent the putting of such an argument, in this case there is not the material which would allow such an enterprise to be embarked upon. I do not think that the Tribunal had any regard to the Departmental note in its deliberations. Accordingly, I would reject this aspect of ground 4. The Appellant also submitted as part of ground 4 that the primary judge had not looked at the documents the subject of the certificate. It is apparent from [29] that this is not correct and that his Honour had read them. In those circumstances, I would reject ground 4.

The Appellant’s health

24    Although the Appellant did not raise any issue in this Court about the difficulties which would face him in terms of access to medicine if returned to Bangladesh, however, it struck me as the most troubling part of the case from his perspective. The Tribunal considered the issue at [41]-[45] with its conclusion at [58] (which is extracted at [3] above but reproduced here):

Based on the evidence before it, the Tribunal finds that the inadequacies of the Bangladeshi health care system that the applicant may face on his return to Bangladesh do not amount to significant harm. It does not constitute the carrying out of the death penalty or torture or arbitrary deprivation of life. The country information indicates that any failure to provide the applicant with health care treatment or support will be due to the Bangladeshi economy rather than any intentional act or omission. Therefore, it is not cruel or inhuman treatment or punishment or degrading treatment or punishment as defined by the Act. The Tribunal also finds that the risk of harm due to inadequate health care services in Bangladesh is one faced by the population of Bangladesh generally and not faced by the applicant personally. Therefore, it is not a real risk that the applicant will suffer significant harm in Bangladesh pursuant to s.36(2B)(c) of the Act.

25    In this case, the question for the Tribunal was to apply the complementary protection regime erected by s 36(2)(aa). The kinds of harm which need to be established are in s 36(2A):

36 Protection visas—criteria provided for by this Act

…

(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.

26    The forms of harm described in s 36(2A) broadly reflect Australia’s obligations under Art 7 of the International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’), which provides that:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

27    The High Court has warned against attaching particular significance to the ICCPR and its attendant jurisprudence in interpreting sections of the Act which incorporate ICCPR obligations: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at 366 [4] and 369 [16]-[17] per Kiefel CJ, Nettle and Gordon JJ; see also Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at 131-132 [45] per Kenny, Tracey and Griffiths JJ. That is because, inter alia, the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ contained in s 5(1) of the Act include a requirement that the treatment or punishment be intentional, whereas no such requirement exists under the ICCPR.

28    Nonetheless, decisions of international bodies interpreting Art 7 in the context of withheld or inadequate healthcare may be of assistance in determining when an obligation might arise in the context of deportation.

29    There are decisions of the United Nations Human Rights Committee (‘HRC’) such as C v Australia (CCPR/C/76/D/900/1999) (‘C v Australia’) which may lend credence to the idea that the return of a person to a country where the state of the health system is such that they will be denied treatment with potentially fatal consequences means that a non-refoulement obligation arises under Art 7. In C v Australia, the relevant breach of Art 7 was articulated at [8.5]:

In circumstances where the State party has recognized a protection obligation towards the author, the Committee considers that deportation of the author to a country where it is unlikely that he would receive the treatment necessary for the illness caused, in whole or in part, because of the State party’s violation of the author's rights would amount to a violation of article 7 of the Covenant.

30    There, however, the relevant breach in returning the applicant to a country with inadequate healthcare arose because the applicant’s health issue was caused by Australia’s conduct in placing him in immigration detention (which itself was found to be a breach of the ICCPR). In the present case, there is no indication that the Appellant’s health issues were caused by the Minister, whether through a breach of international obligations or otherwise. Consequently, there is little assistance to be found in C v Australia.

31    In other instances, the HRC has taken a narrow approach to the withdrawal or denial of healthcare as a basis for a claim under Art 7. It would seem that the unavailability or denial of healthcare will only constitute a breach of Art 7 if it is the result of State interference or denial based on characteristics particular to the applicant: see, for example, Llantoy-Huamán v Peru (CCPR/C/85/D/1153/2003), where State authorities denied a woman a therapeutic abortion on the basis of her age, or LNP v Argentina (CCPR/C/102/D/1610/2007), where a sexual assault victim was denied medical attention on the basis of her Indigenous ethnicity.

32    These decisions are each consistent with the High Court’s decision in SZTAL and support the conclusion that the denial or unavailability of healthcare in a receiving country will only engage s 36(2A) where it is in some way personal to the person being returned. That conclusion appears to have been reached by Rares J in ENU18 v Minister for Home Affairs [2019] FCA 1391 at [41]:

The Authority’s findings about the availability of healthcare and medication in Iraq do not evince any suggestion that the health system in that country (or the ability to access it) involved any systematic and discriminatory conduct against persons with diabetes or other diseases or medical conditions.

33    I therefore regret that I can see no error in the Tribunal’s conclusion that the inadequate healthcare system in Bangladesh, under which the Appellant will almost certainly suffer, does not give rise to ‘significant harm’ within the meaning of s 36(2A) on the basis that the standard of healthcare is ‘one faced by the population of Bangladesh generally and not faced by the applicant personally’.

34    I note for completeness that this issue was not put as a ground of appeal, and was not the subject of submissions by the parties. In light of the observations above, it need be taken no further.

35    The appeal will be dismissed with costs.

Associate:

Dated:    31 October 2019