FEDERAL COURT OF AUSTRALIA

BGX16 v Minister for Home Affairs [2019] FCA 1896

ORDERS

THE COURT ORDERS THAT

1.    The Appellant be refused leave to rely upon proposed Ground 1 of his Further Amended Notice of Appeal.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs as agreed or assessed, including costs thrown away in the 7 August 2019 proceedings.

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

REASONS FOR JUDGMENT

KERR J:

1    The Appellant is a national of Malaysia. On 31 January 2013 he was issued an Electronic Travel Authority (Class UD) (Subclass 976) visa on which he entered and departed Australia to Thailand on a number of occasions in 2013. On 6 December 2013 he was issued a further Electronic Travel Authority (Class UD) (Subclass 601) visa. On 10 February 2014 he applied for a Protection (Class XA) (Subclass 866) visa (Protection visa).

2    His application for that Protection visa was allocated to a delegate of the Minister for Home Affairs (Minister) for decision.

3    The Minister’s delegate summarised the Appellant’s initial written claims as had been included in his application as follows (unaltered):

The applicant’s written claims are on Department of Immigration and Border Protection (department) file CLF2014/21409 from folio 56 to 59 and are summarised as follows:

•    The applicant claims that false cases are being made against him by the government that are still pending as he is an active participant in HINDRAF [Hindu Rights Action Force] and he subsequently joined the main opposition party PKR.

•    He claims to have been kept in police custody on account of a false case.

•    He claims a case was reopened which was dismissed in court.

•    He claims that as the false case is pending he will be apprehended at the airport.

4    The Appellant attended an interview with the Minister’s delegate on 1 October 2014.

5    In respect of the case that the Appellant was concerned had been reopened, the Minister’s delegate recorded the following:

[The Appellant] said in 2006 or 2007 when the case was going on, “he was in the lock up, not in the prison, he came out on bail … so it was running and the case was dismissed”. He was asked what year he was talking about. After some deliberation he said, “2006/7 … 2007 ... he is not sure about the date … it was dismissed in Ipoh [sic] Magistrates Court”. They said it was dismissed but can be re-opened. They said there was no proof that he took the money. He said recently after the HINDRAF problem. It was put to him that this occurred seven years ago. He said, “he was not in the riot or anything ... they went for the Indians to get our rights … so we were sitting there only … and he was arrested for 40 hours before he was let out”. He said after that they called him and said they would re-open his case because he is in HINDRAF. He told them it was nothing to do with HINDRAF as he was working for a Chinese firm. He was asked when this occurred. He said 2009. He said he was in HINDRAF and then he joined PKR. It was put to him that membership in the PKR did not present any problems. He agreed.

He said if an Indian buys a house in Malaysia he pays 10% more than if a native Malaysian buys it. It was put to him that this was discrimination. It was put to him that he is claiming they re-opened his case in 2009 but it is now 2014. He said that the case is still there. It was put to him that it did not appear to be related to the Refugees Convention. He said that if he goes back to Malaysia they will arrest him 100%.

6    Having outlined the evidence given by the Appellant during that interview, the Minister’s delegate then reasoned as follows:

Findings and reasons and material evidence put to the applicant for comment:

The assessment of the plausibility of the applicant’s evidence is a necessary first step in assessing the applicant’s credibility. Chief Justice Gleeson noted in Re RRT; Ex parte Aala [204 CLR 82; 75 ALJR 52 at [4]] ‘decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive’. Decision makers:

•    should note that a finding of a decision maker (including a tribunal) as to credibility is a finding of fact that is open to the decision maker or tribunal to make;

•    are not required to accept uncritically the person’s account;

•    do not have to have rebutting evidence available before it can lawfully be determined that a particular factual assertion by a person is not made out; and

•    should note there is not a presumption that the fear is well-founded unless the facts negate it.

The applicant’s case essentially rests on an unsubstantiated assertion from him that he will be arrested as a result of the re-opening of a case against him, related to financial fraud occurring in a Chinese company with whom he was employed between 1997 and 2006. He claims to have been a member of HINDRAF and that in 2007 he was detained for 40 hours after a protest, and that in 2009 he was told the fraud case against him was being re-opened due to his HINDRAF involvement. He claims that when he was returning to Malaysia from Thailand in 2013 he was told to come to the Malaysian immigration counter to be interviewed. He believes that this indicates he was going to be arrested as the case of 2006/7 had been re-opened.

There is no evidence, beyond the applicant’s assertions, to substantiate his claims. He has provided little information in his written application, and he has provided no real detail at the PV interview.

Nevertheless for the purpose of the assessment I accept:

•    the applicant may have been employed by a Chinese marketing firm that was closed in 2006/7 after having been found to have committed fraud;

•    that the applicant, as an employee of that company, may have been questioned in relation to the fraud;

•    that the applicant may have attended a demonstration sponsored by HINDRAF in 2007 and as a result been detained for 40 hours; and

•    that in 2009 he believed that the case relating to fraud within the Chinese marketing company was being re-opened.

(Citations omitted except where expressly set out).

7    On 7 October 2014 the Minister’s delegate made a decision to refuse to grant the Appellant the Protection visa he had sought.

The Administrative Appeals Tribunal

8    The Appellant appealed that refusal to the Administrative Appeals Tribunal (Tribunal). The Appellant appeared before the Tribunal on 18 March 2016 to give evidence and present argument. It is uncontentious that in coming to its decision on the merits, the Tribunal had been entitled to take into account what the Appellant had told the Minister’s delegate. In its reasons for decision, the Tribunal stated at [17] that it had listened to the audio recording of the interview conducted with the Appellant on 1 October 2014 and was “satisfied that the summary of interview in the Decision Record … is accurate”.

9    The Tribunal accepted the Appellant’s evidence that he had participated in Hindu Rights Action Force (HINDRAF) protests in 2007 and in consequence had been detained for 40 hours and beaten while in custody before being released. However, it noted those events were some time ago; the Appellant’s own evidence was that he had not been arrested since or suffered any mistreatment at the hands of the authorities. The Tribunal noted that the Appellant had not provided any supporting evidence that he had been or remained an active member of the Parti Keadilan Rakyat (PKR), an opposition party.

10    The Tribunal accepted that the Appellant had been charged with fraud sometime prior to those protests. It accepted that the charges had been dismissed.

11    The Tribunal set out the gravamen of the Appellant’s case as follows:

57.    The applicant has claimed that the fraud case has been reopened and he is now wanted by the police. The applicant told the Tribunal the arrest warrant he provided to the Tribunal dated August 2005 was issued by the Department of Serious Commercial Crime’. However, he is actually wanted for his past association with HINDRAF and the charges were re-opened in order to be able to arrest him and then he would be tortured or possibly killed in custody. He would be “1000% at risk of being arrested” on his return to Malaysia.

12    The Tribunal then reasoned as follows:

58.    After the hearing the applicant provided the Tribunal with a scanned copy of a document translated by himself as ‘Information Criminal Record Report from Kampong Tawas Police Station dated 8 April 2005’. The report stated an incident occurred on 17 May 2004 and the ‘Penalty status’ is recorded as Wanted. The printout of the report is dated Wednesday, April 6, 2016. There is no reference number recorded on the report and many of the details are missing.

59.     The Tribunal places no weight on this report due to the lack of detail, particularly as there is no reference to what the applicant is wanted for, there is no reference number and there is no indication that the case was ‘reopened’.

60.    The Tribunal is not satisfied that the applicant is of any adverse interest to the authorities for any actual or imputed activities of a political nature. The Tribunal is not satisfied that the applicant has provided credible supporting evidence that the arrest warrant issued for him in 2005 is current. The applicant himself told the Tribunal that the arrest warrant was issued due to involvement in fraud by the company for which he was employed at the time and that he was questioned and then released and told the case had been dismissed and he was no longer of interest in respect of that matter. The Tribunal had regard to the fact that the applicant remained in Malaysia for four years after he claims the arrest warrant was re-opened, at the same address. Furthermore, according to his own evidence the applicant sought (unsuccessfully) to open a business in his own name in 2009 or 2010 which indicates he did not fear discovery by the police at that time. The Tribunal considers that if the applicant genuinely feared he was at real risk of serious or significant harm from 2009 he would have sought to leave Malaysia earlier.

61.    The Tribunal finds the applicant’s evidence unpersuasive that he is known by authorities for working “behind the scenes” raising money to support the HINDRAF leaders arrested in 2007 and providing a meeting place for political activists. The applicant has not provided any supporting evidence which indicates that he has ever been an active member of HINDRAF or the PKR. The Tribunal is not satisfied that the applicant has had any profile in HINDRAF either at the time of the protests or since that time. Even if the Tribunal accepts that the applicant had some minor roles raising money or facilitating meetings after the protests, the Tribunal places more weight on country information as cited above that individuals with particular political affiliations are not at risk of persecution. The Tribunal is not satisfied that the applicant is known to have, or imputed to have political opinions that are of concern to the authorities in Malaysia or that he will engage in any political activities in the foreseeable future in Malaysia. The Tribunal is therefore not satisfied that there is a real risk or a real chance that the applicant would be arrested, killed or subject to torture if he returns to Malaysia now or in the foreseeable future.

62.     Whilst the Tribunal has accepted the applicant’s evidence that he was involved in the HINDRAF demonstration of November 2007 and he was detained for 40 hours and beaten during this detention, the Tribunal is not satisfied that the applicant has been of any interest to the authorities since that time.

63.    Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as a result of his imputed or actual political opinions or activities now or in the foreseeable future. The Tribunal is not satisfied that there is a real chance that he will suffer serious harm (having regard to the examples provided in s.91R(2) of the Act) if he returns to Malaysia due to his actual or imputed political opinions and/or activities. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act.).

13    The Tribunal also rejected a claim (thinly advanced) on the basis of alleged discrimination because of the Appellant’s status as a Hindu. The Tribunal accordingly affirmed the decision of the Minister’s delegate to refuse the Appellant the visa he had sought.

The Federal Circuit Court

14    The Appellant then sought judicial review in the Federal Circuit Court of Australia (FCCA). He was unrepresented, and relied upon the following single ground of review:

1.    The Tribunal failed to consider the evidence on record and has overlooked the evidence adduced and this resulted in miscarriage of justice and has vitiated the procedural fairness.

Particulars

The Tribunal in para 49 accepts that the applicant was arrested, detained and then released in respect of some fraud charges. The Tribunal in para 62 further accepts the applicant’s evidence that he was involved in the HINDRAF demonstration on Nov 2007 and he was detained for 40 hours and beaten during the detention. The applicant produced two documents which indicate that he continues to be on the “wanted” list and the Tribunal states that it places no weight on the ground that it does not bear a reference number. The documents are screen shots from the Malaysian police system and are authentic. Without disputing the authenticity or genuineness of the document to simply dismiss the evidence on the ground that it does not have a reference number when other details like the authority who maintains the document, date of issue, details of the person wanted etc are available, it is submitted that the finding is totally against the weight of evidence. It is also submitted that the Tribunal failed to consider the evidence adduced in relation to custodial death in Malaysian police in volition of human rights of individuals.

15    As to that ground, the primary judge reasoned as follows:

28.     The Ground in substance complains that the Tribunal failed to consider or overlooked two documents, namely the documents identified at [16] and [18] above and “evidence adduced in relation to custodial deaths”.

Document from Bureau of Serious Commercial Crime

29.    As to the document dated 24 August 2005, the Tribunal identified that document in the last bullet point of [25] of its Decision Record. At [33] the Tribunal then records that it “put to him that this document was 11 years old and there was no indication that there was a current arrest warrant for him”. The Tribunal recorded that the Applicant acknowledged that he had no documents relating to him still being of interest to the authorities and the Tribunal noted that it provided the Applicant with additional time to see if he were able to get any relevant documents that were pertinent to his current situation.

30.    The document is further referred to by the Tribunal at [49], [50], [57] and again at [60] where it stated that it was not satisfied “that the arrest warrant issued for him in 2005 is current”. In my view the Tribunal meaningfully considered the first document dated 24 August 2005 within the context of the Applicant’s claims and came to a view concerning its weight which is not legally unreasonable. There has been no failure by the Tribunal, in connection with this document, to afford procedural fairness to the Applicant, nor has there been a constructive failure to exercise jurisdiction by the Tribunal in overlooking or not considering it.

Information Criminal Record Report

31.    The second document printed out on 6 April 2016 was identified and described at [37] of the Decision Record and further referred to at [58] and [59], at which latter paragraph the Tribunal recorded its finding that it placed no weight on the document “… due to the lack of detail, particularly as there is no reference to what the applicant is wanted for, there is no reference number and there is no indication that the case was ‘re-opened’”. Once again, in my view the Tribunal has meaningfully considered the second document.

Deaths of Former HINDRAF Members in Custody

32.    This complaint also fails at a factual level.

33.    First, at [35] of its Decision Record the Tribunal identifies the evidence provided by the Applicant to the Tribunal of deaths in police custody and went on to note that there was no indication that the people who died were former HINDRAF members, with which the Applicant is noted as having agreed.

34.    At [52] the Tribunal records putting to the Applicant country information indicating that even past active and high profile members of HINDRAF were no longer at risk of persecution, and at [53] again refers to the Applicant’s claim that HINDRAF members had been taken into custody and died whilst in custody, and the Applicant’s claim that this would happen to him.

35.    However, in the final paragraph of [53] the Tribunal stated that it placed no weight on these cases of deaths in custody “as there is no evidence that the people arrested were former members of HINDRAF or that they had any association with the Applicant at all”.

36.    In my view, the Tribunal meaningfully considered the claim of the Applicant with respect to deaths in custody.

37.    Otherwise, the Ground seeks to invoke a merits review of the findings of the Tribunal. It is well-established that the choice and interpretation of country information, including the weight that the Tribunal gives to such information, is part of the fact finding function of the Tribunal. Further, the weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration & Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243 at [13] where Flick J said:

[13]    The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone.

Conclusion

38.    Accordingly, in my view the Ground relied upon by the Applicant fails to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Application is to be dismissed.

The Appeal

16    On 28 March 2019, the Appellant appealed to this Court from that refusal of relief on the following basis:

The Federal Circuit court failed to find, in respect of the AAT that the AAT declined its jurisdiction to the Applicant on the basis of grounds including the main grounds stated in the Applicant’s Federal Circuit Court Application filed in Sydney.

I lodge this FC Application myself.

I still rely on the grounds and particulars being already stated in my FCC Application.

I propose to seek further legal advice and a Counsel opinion on merits of my FC Application.

I have decided to lodge this FC Application myself to protect my Appeal rights and in order to obtain a Barrister’s opinion as to the prospects of success of my FC Application and as the Barrister’s opinion is not available at this stage.

I may file Amended Notice of Appeal where necessary (only after transcript of the AAT hearing/Appeal Book has become available to me and when a barrister’s opinion supporting such amendment/s becomes available to me along with opinion my case has sufficient merit.

17    On 23 April 2019, Registrar McCormick made directions for the preparation of the appeal.

18    There was an interlocutory proceeding in which an adjournment was sought of this Court. It is uncontentious that at that time, the First Respondent made submissions that it should be entitled to costs thrown away in any event, notwithstanding the disposition of this appeal. I indicated I would consider that application at the conclusion of these proceedings.

19    On 29 October 2019 an Amended Notice of Appeal was filed. There is then a Further Amended Notice of Appeal dated 31 October 2019, albeit that for reasons that remain unexplained it was filed in the Court only on 10 November 2019. The final form of the proposed appeal is as follows:

Grounds of appeal

1.    Ground One

Jurisdictional Error. The Lower Court failed to … find that the Tribunal failed to consider certain integers of the Appellant’s claims and supporting evidence on record, overlooked the evidence adduced resulting in a miscarriage of justice and failure to exercise jurisdiction

Particulars

a)     The Tribunal accepted that the Appellant participated in the protests of 2007, was arrested and detained for about 40 hours, beaten while he was in police custody resulting to an injury to his shoulder and then released. [Paragraph 46 CB128]

b)    The Appellant stated that from the 2007 protest, he sustained injuries to his torso and arms, soon after he was released he took treatments for the injury, he still consults doctors regarding the unbearable pain in his arm and he continues to receive treatment in Australia [“Health Claims”][Paragraph 2 &3,CB 95]

c)    To support the Health Claims, the Appellant adduced evidence including a Doctor Certificate, a report from Dr Romel de Silva, a medical certificate from Dr Nalayini Sugirthan and copies of letters from Dr Kalma Piper, copy of results of ultrasounds from Western Imaging Group [Paragraph 26, CB 125]

d)    In his statutory declaration dated 17 March 2016, the Appellant stated “I further state that I still consult doctors regarding the unbearable pain in my arms and get treated in Australia. I was told that the pain was also on account of the earlier injury to the shoulder which had occurred at some earlier point in time”. [Paragraph 8, CB 96]. “I state that the moment I enter Malaysia by air or sea or land, I will be apprehended, taken to custody and may be gunned down\killed by the Police” [Paragraph 9, CB 96]

20    With the possible exception of the particulars in the last sentence of paragraph (d) of the single ground in the proposed Further Amended Notice of Appeal, none of the issues that are raised were articulated before the primary judge. For that reason, leave to rely on the ground is required. I will deal with the last sentence of paragraph (d) discretely.

The last sentence of paragraph (d) of the revised ground of appeal

21    The Appellant submitted that the primary judge fell into error by not having regard to his claim that:

I state that the moment I enter Malaysia by air or by sea or land I will be apprehended, taken into custody and may be gunned down [and] killed by the police.

22    “A tribunal’s reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Proprietary Ltd [1993] FCA 456; 43 FCR 280 at 287. They are to be read fairly and as a whole. The Tribunal was entitled to doubt the credit of the Appellant with respect to his assertion that he reasonably feared persecution by reason of the re-opening of a fraud case because of his accepted involvement with the HINDRAF in 2007. The Tribunal referred to country information before it to the effect that even past active and high profile members of HINDRAF were no longer at risk of persecution.

23    It was not in dispute before the Tribunal that the Appellant had lived openly in Kuala Lumpur for four years without having experienced any repercussions as a result of his former involvement with HINDRAF. The Appellant accepted that his conduct in or around 2004 could be regarded as criminal. As noted at [20] of the reasons of the Tribunal, he had acknowledged that the fact that the proceedings against him had been dismissed did not stand as a bar to their reinstitution. On the materials before the Tribunal, the contention advanced by the Appellant that he had a reasonable fear of being gunned down or killed by the police was adequately addressed at [60] of its reasons.

24    What appears at the last sentence of paragraph (d) of the revised ground of appeal may stand alone as a ground of appeal, divorced from the matters for which leave to rely on a matter not pressed in the court below is required. If that is so, I would dismiss it. I am entirely unsatisfied that there is any relevant error, and none was articulated by counsel for the Appellant in these proceedings, as would suggest that the contention could succeed as an independent ground of appeal.

Leave to rely on proposed Further Amended Notice of Appeal

25    I turn now to the basis on which jurisdictional error is asserted, which is a ground that was not articulated before the FCCA. The principles that govern whether or not leave to rely on a ground of appeal that has not been articulated in a court below are those that are set out in Coulton v Holcombe [1968] HCA 33; 162 CLR 1 (Coulton), and more recently articulated by the Chief Justice of this Court in BOZ v Minister for Immigration and Border Protection [2018] FCA 418, where, at [66], his Honour states:

Leave to advance a ground of appeal not run in the court below is to be granted only where it is expedient and in the interests of justice to do so.

26    I am satisfied that that the Tribunal was well aware that the Appellant suffered injuries in 2007. That circumstance is referred to in [26] of its reasons:

[26]        The applicant provided the Tribunal with the following documents:

•    a statutory declaration made by the applicant dated 17 March 2016 stating that he was a member of HINDRAF and participated in the HINDRAF agitation in late 2007. He was apprehended and spent about 40 hours in detention. During this period of detention he was manhandled/assaulted by police during which he was hit and punched by the police and had severe pain in his arms and torso. After his release he took treatment for the pain caused by the assault. He continues to have treatment for the pain in Australia. He was warned several times by the police that they are monitoring his activities. As he was warned several times by police he started ‘living in disguise’ and carried out his political activities in a clandestine fashion. He still has strong sentiments and feeling for the cause of his community (Tamils) and he wants to put an end to government-sponsored discrimination against Tamils / Indian Hindus of Malaysia. On 3 January 2013 he left Malaysia and fled to Thailand and from there he travelled to Australia. He returned to Thailand on more than three occasions and has never visited Malaysia since he left in January 2013. He has unofficially obtained a record from the police department which clearly states he is on the wanted list of the police. The moment he enters Malaysia by air or sea or land he will be apprehended, taken into custody and may be gunned down/killed by the police;

•    a report from Dr Romel de Silva, in Kuala Lumpar dated 25 February 2016, stating that he had seen the applicant at the end of 2007 for painful movements of his left shoulder. His x-rays were normal. He prescribed pain relief, physiotherapy and hot fomentation to mobilise his shoulder;

•    a medical certificate from Dr Nalayini Sugirthan, Bridgeview Medical Practice, Toongabbie, dated 17 March 2016, stating that the applicant is receiving medical treatment for his left shoulder pain has been reviewed by orthopaedic specialist;

•    copies of letters from Dr Kalma Piper, orthopaedic surgeon, dated 19 February and 14 March 2016 stating that the applicant was prescribed cortisone injections for left shoulder pain which he did not have, his MRI shows signs of capsulitis and he re-presented with bilateral hand stiffness. He suspected the applicant may have more systemic disease and made a further referral;

•    copy of the results of an ultrasound and cortisone injections into the applicant’s left shoulder from Western Imaging Group dated 13 May, 19 June and 3 October 2015 indicating the applicant has a partial tear in the shoulder tendon and bursitis;

•    various medical invoices and bills for the above medical problems;

•    a copy of an untranslated document relating to the applicant dated 24 August 2005 stating that he was “wanted” by the Bureau of Serious Commercial Crime in Malaysia. There was no information on this document in respect of the nature of the crime.

27    The Tribunal also dealt with the matter at [34], where it stated that:

[34]    The Applicant stated he had a medical report showing that he had a previous injury to his left shoulder. He was hit by police with an iron bar when he was arrested at the HINDRAF rally and injured. At the time x-rays did not indicate there was a permanent injury. He believes he was tortured again in 2007. He believes that if he was to be rearrested he would be the victim of torture again.

28    Then, at [46], the Tribunal stated as follows:

[46]    The Tribunal accepts the applicant’s evidence that he participated in the protests of 2007, was arrested and detained for about 40 hours, beaten while he was in police custody resulting in an injury to his shoulder and then released. The Tribunal also accepts the applicant’s evidence that he has never been arrested since, nor has he suffered any physical mistreatment at the hands of the authorities since that time.

29    Having regard to those findings Ms Okereke-Fisher, counsel for the Appellant, submitted that it was evident that the primary judge must have fallen into jurisdictional error by failing to consider the integers of the Appellant’s claim as related to his health condition. This error arose, in her submission, not by reason of the Tribunal failing to make findings of fact that went to his primarily articulated claim. Rather, it arose from its failure to consider an implied claim that if the Appellant were returned to Malaysia, he would be deprived of medical attention of a standard that he receives in Australia.

30    The rationale for that claim is not articulated in either the ground of appeal or the particulars. It is unclear whether the claim is that the Appellant would be unable to receive adequate treatment by reason of its general unavailability or cost, or for some other reason.

31    To the extent that Ms Okereke-Fisher’s submission suggested that the Tribunal erred by not considering whether the Appellant might be denied medical services by reason of his status as a member of the Hindu community, that would appear to be adequately dealt with by the Tribunal’s findings at [65]:

[65]    The applicant responding stating that he could not open a business under his own name unless there is 51% ownership by a Muslim. He tried to open a business in his wife’s name around 2009 or 2010 but could not do so. He had a business in recycling but if it earned more than 10,000 rupees then he needed a Muslim to have a 51% share. He had to close down because they exceeded the profit of 10,000 rupees and could not register the business without a 51% Muslim share. He then got a job as a cook in his friend’s restaurant. He also feels that he has been insulted but he cannot do anything it because he would be arrested if he got into a fight.

32    In that paragraph the Tribunal responded to the Appellant’s contentions that he would face persecution because of his religion or ethnicity. The Appellant had submitted in that regard that he had sought to open a business but had had difficulties by reason of the discriminatory policies of the Malaysian government. At no point did he suggest that he was the subject of discrimination with respect to the availability of access to health services for that reason, or that the cost of the provision of those health services would be greater by reason of his religion.

33    Returning to the more general issues, it can be accepted that an applicant’s health status in particular circumstances may be material to a claim for complementary protection pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). There are however clear limits to that proposition, having regard to the reasoning of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL) in which Kiefel CJ and Nettle and Gordon JJ speaking as a plurality reasoned at [4]-[8]:

[4]    “[C]ruel or inhuman treatment or punishment” is relevantly defined in s 5(1) of the [Migration] Act as an act or omission by which “severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” (emphasis added). As Edelman J explains (7), this definition is not taken from the ICCPR. The ICCPR did not provide a definition. It did not expressly require that pain or suffering of the requisite degree be intentionally inflicted; nor has it subsequently been interpreted as importing such a requirement. The definition of “cruel or inhuman treatment or punishment” in s 5(1) is a partial adaptation of the definition of “torture” in s 5(1), which is clearly enough derived from the definition of “torture” in Art 1 of the CAT, which, in turn, speaks of “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” for certain purposes such as obtaining information or a confession, or intimidating or coercing the person or a third person.

[5]    Section 5(1) also defines “degrading treatment or punishment” for the purposes of the Act. It means an act or omission that causes and is intended to cause extreme humiliation which is unreasonable. That definition, like the definition of cruel or inhuman treatment or punishment in s 5(1), is not taken from the ICCPR. The ICCPR does not expressly require that humiliation of the requisite degree be intentionally caused; nor has it subsequently been interpreted as importing such a requirement.

The Tribunal’s findings

[6]    The Refugee Review Tribunal (“the Tribunal”) found that, if the appellants were returned to Sri Lanka, their country of origin, and if they were arrested and charged under the laws of that country because they had left it illegally, they would likely be held in remand for a short period, which may be one day, several days or possibly two weeks. The Tribunal accepted that prison conditions in Sri Lanka are poor and may not meet international standards by reason of matters such as overcrowding, poor sanitary facilities and limited access to food.

[7]    The issue before the Tribunal, relevant to these appeals, was whether, in sending the appellants to prison, Sri Lankan officials could be said to intend to inflict severe pain or suffering or to intend to cause extreme humiliation. The Tribunal concluded that the element of intention was not satisfied. The country information before it indicated that the conditions in prisons in Sri Lanka are the result of a lack of resources, which the Sri Lankan government acknowledged and is taking steps to improve, rather than an intention to inflict cruel or inhuman treatment or punishment or to cause extreme humiliation.

[8]    The Federal Circuit Court (Judge Driver) considered (8), correctly in our view, that the Tribunal is to be understood to have concluded that “intentionally inflicted” in the definition of “cruel or inhuman treatment or punishment” connotes the existence of an actual, subjective, intention on the part of a person to bring about suffering by his or her conduct. His Honour considered the same to be true with respect to the words “intended to cause” in the definition of “degrading treatment or punishment”. His Honour found no error in that reasoning, and a majority of a Full Court of the Federal Court (Kenny and Nicholas JJ) (9) agreed. Buchanan J dismissed the appeals on other grounds.

34    Section 36(2)(aa) of the Migration Act sets out to the following criterion for a Protection visa:

[T]he 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 …

35    In turn, “significant harm” is a defined term under s 5 of the Migration Act. It is defined to mean harm of a kind referred to in s 36(2A), which provides as follows:

(2A)     A non-citizen will suffer significant harm if:

   (a)     the non-citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non-citizen; or

   (c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

36    Ms Okereke-Fisher submits that the Tribunal should have considered, having regard to the terms of s 36(2A)(d)-(e) of the Migration Act, the Appellant’s health status.

37    The difficulty with that submission is that the plurality in SZTAL note that both “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” are defined in s 5 of the Migration Act. Cruel or inhuman treatment or punishment is relevantly defined as an act or omission by which “severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”. Degrading treatment or punishment relevantly means “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.”

38    In that sense, s 36(2A)(d)-(e) of the Migration Act appear to preclude a claim based solely on the fact that the medical services available in another country may be of a lesser standard than those which are available in Australia. It is unsurprising that the criteria for a Protection visa does not admit that proposition; the healthcare systems of most countries are to a greater or lesser degree inferior to those available in this country.

39    In AJI16 v Minister for Immigration and Border Protection [2019] FCA 1769, Perram J reasoned as follows:

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.

            …

[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.

40    That does not mean that the fact that a visa applicant has a serious health condition cannot be relevant to a claim for complementary protection. Thus, in CPJ17 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1664 Charlesworth J noted at [22] that on the facts of that case there had been a claim that the Appellant feared harm by reason of the withdrawal of mental health services should he be removed from Australia. As [29] of her Honour’s reasons reveal, that matter was ultimately remitted to the Tribunal for consideration on the basis that the Minister accepted that the issue of intention had not been adequately considered and required attention.

41    In the present case, the Tribunal found that there was no reason to anticipate that any adverse attention would be given to the Appellant by the authorities in Malaysia were he to be returned, save for that arising from a proper basis that might be available to them for the reopening of the fraud case. It therefore concluded that he did not suffer any relevant prejudice by reason of his ethnicity or religion. The primary judge endorsed those findings. Those are circumstances in which, in my view, no jurisdictional error occurred by reason of a failure to consider an integer of the Appellant’s claims relating to health. That is because there was simply nothing before the Tribunal, having regard to the statutory provisions that it had to apply, whereby such a claim might be considered plausible.

42    Moreover, adding to the difficulties that the Appellant’s counsel is required to face in persuading the Court that a ground not pressed in the court below should be permitted to stand, is the finding that the Tribunal made that the Appellant had lived for a not inconsiderable period of time after the events which had caused him the physical injuries in Malaysia and had not suggested that he had been denied any medical services that he required during that period.

43    To the contrary, the Appellant himself gave evidence which the Tribunal referred to at [26] that he had treatment provided for the pain caused by the assault. The Tribunal, therefore, had before it material from the Appellant himself that he had available medical treatment for the accepted harm that he had suffered in 2017.

44    In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE), it was held that it is jurisdictional error for a tribunal to fail to consider any integer of an appellant’s claim that on a fair and proper basis is apparent on the materials before it, even if it is not expressly articulated. However, NABE does not require a tribunal to search out a claim not made or readily discernible on the evidence before it.

45    In my opinion, the Appellant has not made out a case which would entitle the Court to proceed other than in accordance with the principles in Coulton. In SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; [2015] FCA 534; 232 FCR 262, Logan J referred at [9] to the disparity of resources between visa applicants and the Minister and the requirement that the Court bear in mind that an appeal to this Court may be such an applicant’s only opportunity to advance a proposition that should have been considered by the Tribunal but was not. However, in the present case BGX16’s proposed ground of appeal is entirely without merit. Accordingly, I would refuse leave to rely on a ground not pressed in the court below. The appeal must therefore be dismissed. The Minister is entitled to his costs. I will make orders accordingly.

Associate:

Dated:    18 November 2019