FEDERAL COURT OF AUSTRALIA

EZC18 v Minister for Home Affairs [2019] FCA 2143

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

INTRODUCTION

1    This is an appeal from an order made by the Federal Circuit Court of Australia on 1 March 2019. On that day, the Federal Circuit Court made an order that the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) be dismissed. The Tribunal’s decision was to affirm the decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

THE FACTS

2    The facts which follow are taken from the reasons for judgment of the Federal Circuit Court (EZC18 v Minister for Home Affairs & Anor [2019] FCCA 464). They are not in dispute.

3    The appellant is a British citizen. He was born in Cumnock, Scotland on 24 January 1932. In June 1964, he migrated to Australia with his now deceased spouse and three children. He has never applied for, nor been granted, Australian citizenship. He has lived in Australia since June 1964 pursuant to a permanent resident visa issued under the provisions of the Act.

4    On 10 March 2016, the appellant was convicted of two counts of sexual exploitation of a minor in the District Court of South Australia and sentenced to four years imprisonment. A non-parole period of one year was fixed. The victims of his crimes were two of his granddaughters who were each under 14 years of age at the time of the offending.

5    The appellant is in poor health. He suffers from the following medical conditions: atrial fibrillation; type 2 diabetes; hypertension; hypercholesterolaemia; hypothyroidism; congestive cardiac failure; cardiovascular disease; and various lung diseases. In the past, he has suffered from bowel cancer. The appellant has a hearing loss, blindness in one eye, suffers from arthritis and has mobility issues. He has been diagnosed with a form of dementia.

6    On 22 August 2016, a delegate of the Minister cancelled the appellant’s permanent resident visa pursuant to the provisions of s 501(3A) of the Act. This section provides that any migration visa held by a person is to be cancelled if that person does not pass a character test because he or she has been convicted of a sexually based offence, involving a child, and has been sentenced to a term of full-time imprisonment. On 8 November 2017, the then Minister declined to revoke the delegate’s decision to mandatorily cancel the appellant’s visa. The appellant has completed his sentence of imprisonment and is now in immigration detention.

7    On 13 March 2018, the appellant applied for a protection visa pursuant to s 36 of the Act on the basis that Australia had an obligation to provide him with protection.

8    The primary judge summarised the various grounds upon which the appellant claimed to be at risk, if not granted protection, as follows:

•    If returned to the United Kingdom, he would die or commit suicide;

•    He is not entitled to social security in the United Kingdom;

•    The British charity responsible for assisting repatriated prisoners would not be able to assist the applicant because of his numerous health concerns;

•    Given the period of his absence from the United Kingdom, the applicant could not be guaranteed housing or social care in Britain;

•    It would be medically unsafe for the applicant to be returned to the United Kingdom;

•    His separation from his partner would cause him severe emotional hardship;

•    The applicant’s age, health problems and lack of support, in the United Kingdom, meant that he faced significant impediments to being resettled in that country;

•    His cognitive impairment would make it impossible for him to function on resettlement.

9    The appellant’s application for a protection visa was supported by a medical report of a psychiatrist, Dr Jules Begg, dated 12 March 2018. Dr Begg diagnosed the appellant as suffering from a major depressive disorder and, due to his other circumstances, considered that the appellant was at “high risk of suicide if he is deported”.

10    On 14 March 2018, a delegate of the Minister refused to grant the appellant’s application for a protection visa. The appellant then applied to the Tribunal for review of this decision. On 7 August 2018, the Tribunal affirmed the decision not to grant the appellant a protection visa.

11    On 13 September 2018, the appellant issued his application for judicial review in the Federal Circuit Court. There were two grounds in the application. They were as follows:

1.    The Tribunal erred in its jurisdiction in the reasoning at paragraph 49 in holding that suicide could not be harm inflicted by a third party and therefore not within the scope of arbitrary deprivation of life within the meaning of s36(2A) of the Migration Act and in the reasoning at paragraph 50 that there must be a third party involved in the infliction of harm to bring it within the scope of s36(2A) of the Migration Act.

2.    Because of the erroneous reasoning in ground 1, failed to consider whether 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.

THE RELEVANT LEGISLATIVE PROVISIONS

12    In the circumstances of this appeal, it is necessary to mention only those sections that relate to what is known as complementary protection. Sections 36(2)(aa) and 36(2A) of the Act relevantly provide:

36 Protection visas—criteria provided for by this Act

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

…

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

…

(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.

THE DECISION OF THE TRIBUNAL

13    The primary judge summarised the decision of the Tribunal and what follows is based on that summary.

14    The Tribunal summarised the appellant’s claim for protection in the following terms:

10    The applicant is an 86 year old Scotsman who has lived in Australia for 54 years. He left Scotland following a mining disaster in which four of his colleagues were interned in the collapsed mine shaft. He has considerable medical issues. The applicant fears returning to the UK for the reason of dying on the flight. He also has threatened suicide as he does not want to die alone in Scotland. The applicant had two brothers who both passed away and has no friends or relatives in the UK. The applicant also fears his living circumstances were he to return claiming that other than two weeks accommodation he would not have a place to stay. He is a convicted paedophile having being found guilty of crimes two years earlier.

15    The primary judge recorded the following findings of the Tribunal which are not in dispute:

(1)    the appellant is in poor health and visits a medical practitioner at least monthly;

(2)    the Tribunal did not reject Dr Begg’s view that the appellant was at high risk of suicide if deported;

(3)    the appellant had previously lived with his partner of 16 years who provided care for him;

(4)    the appellant would qualify for a part United Kingdom (UK)/Australian pension, but would experience difficulty obtaining suitable accommodation for himself if he returned to the UK. However, a socio-economic hardship suffered by him would not be for a Convention reason;

(5)    it was accepted that the appellant belonged to a specific social group, namely that of convicted paedophiles, returning to the UK and he would come to the notice of UK authorities as a result;

(6)    the appellant would not be subject to any form of persecution because of his membership of a social group comprising convicted paedophiles;

(7)    it was not accepted that any aged care facility or the police would subject the appellant to any form of persecution as a consequence of his membership of this group;

(8)    the UK had health systems in place to provide service to elderly and infirmed individuals, such as the appellant; and

(9)    the possibility of the appellant suffering harm as a result of having to travel for an extended period of time by aeroplane was remote and, as such, did not amount to him being at real risk of suffering significant harm.

16    The primary judge noted that the focus of the appellant’s review application was on the evidence provided to the Tribunal by Dr Begg that he was at significant risk of committing suicide if returned to the UK because of his resulting separation from his carer, other family members and the community in which he had lived for the past 54 years. The appellant’s contention was that there was nothing pertaining to the process of removing a person from Australia who has had his or her visa cancelled on character grounds which can envisage the death of that person. It follows, so it was said, that as there is cogent evidence available to indicate that the removal process may result in such an outcome, it is an arbitrary one in the sense envisaged by s 36(2A)(a) of the Act.

17    The Tribunal noted that the expression “arbitrarily deprived of life” in s 36(2A)(a) is not defined in the Act. The Tribunal said that, in those circumstances, the adverb “arbitrarily” should be given its ordinary meaning which the Tribunal found to be concerned with “capriciousness, unpredictability, injustice and unreasonableness” in the sense of “not being proportionate to the legitimate aim sought”. The Tribunal found that on the natural reading of s 36(2A), the harm arbitrarily inflicted on the person concerned must emanate from a third party. The key conclusions of the Tribunal are set out in the following three paragraphs:

48    The applicant has claimed that he will face harm for reasons and loneliness and suicide (this was reported by him and others to the Tribunal). I find that loneliness does not amount to serious harm or significant harm in of itself but can be contributing factor to increasing the likelihood of suicide, which is. But while the threat is regrettably credible and should be taken into consideration by the Department if planning for deportation proceeds. I find that any possibility of self-harm exacerbated by loneliness or otherwise does not have a nexus with the Act’s requirements of a well-founded fear of persecution being for reasons of race, religion, nationality, political opinion and membership of a particular group.

49    I also note that the complementary protection language of s.36(2A) is passively worded such as ‘the non-citizen will be arbitrarily deprived’ or a non-citizen ‘will be subjected to cruel …’. This is indicative of the correct interpretation being that the harm is inflicted by a third party upon the non-citizen. I do not accept that either suicide or loneliness could be considered as harm inflicted by a third party upon the applicant. For these reasons I find that the applicant does not have a well-founded fear of harm or face a real risk of significant harm on the basis of self-harm.

50    I have also turned my mind to consider the circumstances cumulatively. The applicant may at any one time be without a home and without access to medical support and face loneliness and thoughts of suicide. Such a circumstance will aggravate the risks identified above but the same reasoning applied earlier remains true in such circumstances. Specifically, the harm must be for reasons prescribed in the Act for s.36(2)(a) to be met. Similarly, there must be a third party involved in the infliction of harm to meet s.36(2)(administrative assessment) and/or the concept of arbitrary deprivation of life needs to be present which, even when considered cumulatively, it is not.

18    In the circumstances, the Tribunal decided to affirm the decision of the delegate.

THE DECISION OF THE FEDERAL CIRCUIT COURT

19    The primary judge also noted that the expression “arbitrarily deprived of life” is not defined in the Act. His Honour referred to the general principles of statutory interpretation and, in that context, to Alcan (NT) Alumnia Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) at [14]; s 15AB of the Acts Interpretation Act 1901 (Cth) and the Second Reading Speech to the Migration Amendment (Complementary Protection) Bill 2011(Cth) and Articles 6 and 7 of the International Covenant on Civil and Political Rights 1966 (the ICCPR) and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (the CAT). The primary judge also considered the definitions in the Act of “torture”, “cruel” or “inhuman treatment” and “degrading treatment or punishment”. The primary judge referred to the decision of the High Court in SZTAL and the decision in MZAAJ v Minister for Immigration & Border Protection [2015] FCCA 151 and on appeal, MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478.

20    The primary judge said that he agreed with the submission made by the Minister to the effect that the ordinary meaning of the words “arbitrarily deprived” read in the context of the Act and the policy underlying their introduction, means that the harm is concerned with matters such as extrajudicial killing and the like. The primary judge said that the risk of significant harm facing the appellant in this case is not one which emanates specifically from any state based authority or its agents or proxies. The appellant faces the risk of death at his own hand because of loneliness and social isolation compounded by old age and poor health. The primary judge said that these are risks likely to be faced by many individuals in both this country and the UK.

21    The primary judge observed that loneliness is subjective and he said that, in his view, in a qualitative sense, it is different from the loneliness or sense of social isolation which would flow from a person being subject to solitary confinement in a penal context. In addition, such confinement would arise as a direct result of the intention of the authority directing the confinement.

22    The primary judge referred to definitions of the words “arbitrary” and “deprive” in the Oxford English Dictionary.

23    The primary judge said that, in his view, there is a consistency between the various forms of significant harm delineated in s 36(2A) in that each requires an intended consequence. His Honour said that this followed from the specific use of the word “intend” and in the context of “deprivation of life”, the use of the transitive verb. The primary judge noted findings of the Tribunal that the appellant was not likely to be subject to any direct form of discrimination or harm emanating from the UK authorities, or subject to the infliction of any harm by others whom the government was either unable or unwilling to restrain. The primary judge said:

The direct harm, in this case, would come from the applicant himself by dint of his circumstances.

24    The primary judge referred to an example given by the Minister in his Second Reading Speech and said that in the current matter, neither the Australian nor the UK governments condone the appellant engaging in self-harm. Any potential self-harm was unlikely to have the involvement of another individual actor and, if it does, it will arise with the acquiescence of the appellant. The primary judge said that, as such, there is no suggestion of any direct act or omission attributable to any government agency.

25    The primary judge considered that the Tribunal had assessed the central issue in the case, namely whether the appellant was entitled to the grant of a protection visa, on complementary protection grounds, on the basis that he was at real risk of suffering significant harm, if repatriated to the UK, because there was a psychiatric diagnosis that he was at risk of committing suicide. His Honour did not doubt that suicide represents significant harm in a “generic sense”. His Honour said, however, that it is clear that for complementary protection purposes, the significant harm must fall within one of the categories provided by s 36(2A). The primary judge said that he was satisfied that suicide was an event which would not involve direct state intervention and, in addition, if the authorities in the UK are adequately alerted, the appellant could be provided with appropriate medical supports and safeguards. The following paragraphs in the primary judge’s reasons are important:

89    What is fundamentally different between this case and other cases involving honour killings; exposure to violence because of sexual preference; or the return of a person to an environment in which family violence is prevalent and condoned; is that each of these exemplars of harm involves the actions of others; whilst in the applicant’s case, his harm is potentially self-actioned and self-directed.

90    Section 36 is directed towards ensuring Australia meets it international human rights obligations as entailed in its ratification of the Refugees Convention; the ICCPR; and the CAT. Each of these, in my view, is directed to provide protection, for individuals, from the despotic actions of states and any actors within states, whose tyrannical activities are not subject to the control of state based authorities, who have passively provided its imprimatur to such activities.

26    The primary judge found that the Tribunal did not commit any “species” of jurisdictional error.

THE APPEAL TO THIS COURT AND THE SUBMISSIONS OF THE PARTIES

27    There is one ground of appeal in the appeal to this Court and it is in the following terms:

1.    Erred in construing s36(2)(aa) and (2A)(a) as requiring that for the applicant to suffer significant harm, pursuant to the criterion, a decision maker must be satisfied that

a.    another actor is intent on dispossessing another person of his/her life in a despotic or tyrannical fashion or otherwise subject to whim or caprice; or

   b.    authorities having a tyrannical or capricious intent to end his life

and that it was insufficient that Australian authorities had a callous disregard for his safety and wellbeing and intended the actions which in the circumstances of the applicant would give rise to a real risk of the death of the applicant.

28    The appellant submitted that the primary judge had erred. He submitted that his Honour had failed to consider whether there were adequate precautions by the UK in preventing the appellant from committing suicide and whether such failure to have such precautions gave rise to arbitrary deprivation of life. It did so, so it was argued, because it misconstrued the meaning of “arbitrarily”, and instead its focus was on the fact that suicide was not at the hands of a third party. The appellant submitted that the primary judge read the words “arbitrarily deprived” too narrowly. He submitted that the direct source of the harm was not necessarily conclusive to the question of arbitrariness. He submitted that, as a matter of law, arbitrariness could arise from the receiving state’s response to the suicide. He submitted that whilst it was not inappropriate for the primary judge to consider other categories of significant harm, his Honour was diverted from considering the phrase in s 36(2A)(a). He submitted that the primary judge erred in holding that it was necessary to show sole state responsibility for the harm. He submitted that the real question to be determined required an analysis of the lawful or unlawful action of the state. That determination need not consider whether the arbitrary deprivation of life was solely caused by the state. He submitted that rather, the arbitrariness was to be determined on the facts of the case with regard to the particular circumstances of the appellant, namely his removal from Australia, the high risk of suicide and the response of the UK. He submitted that the primary judge decided the case on a false premise and that whether or not the risk of harm is arbitrary is not determined by whether the appellant is required to return to the subject country, but rather, whether the deprivation of life itself was affected by arbitrary factors. He submitted that there needed to be a consideration of the receiving state’s response to the risk of suicide and that the failure of the Tribunal to appreciate this constituted jurisdictional error.

29    The Minister submitted that the Tribunal was correct in concluding that the harm referred to in s 36(2A)(a) is harm inflicted by a third party and did not include suicide by the non-citizen. The Minister did not argue that the only third parties for this purpose were the state or state agencies. Further, or in the alternative, the Minister submitted that if the focus is on the state parties (i.e., Australia and the UK), there is nothing arbitrary, in the sense of capricious, random or unpredictable, about the appellant being removed from Australia and received into the UK.

ANALYSIS

30    The thrust of the appellant’s argument is that suicide falls within the terms of ss 36(2A)(a) and 36(2)(aa) of the Act and whether it amounts to an arbitrary deprivation of life is determined by reference to the receiving country’s response to the risk of suicide. The jurisdictional error committed by the Tribunal was that it did not assess the UK’s response to the risk of the appellant committing suicide upon his return to that country and it did not undertake that exercise because it misconstrued s 36(2A)(a) as not including deprivation of life by the non-citizen’s own hand.

31    In SZTAL, the High Court considered the complementary protection provisions in the Act (ss 36(2)(aa) and 36(2A)) and, in particular, s 36(2A)(c), (d) and (e). Chief Justice Kiefel and Justices Nettle and Gordon described the process of ascertaining statutory meaning as follows (at [14]):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(Footnotes omitted.)

32    As their Honours noted, the enactment of the complementary protection regime gave effect to Australia’s non-refoulement obligations under the CAT and the ICCPR. The complementary protection regime was also designed to address a lengthy and time consuming process relating to the grant of a protection visa to a non-citizen who is not a refugee (at [1]).

33    Justice Edelman explained the background to the regime as follows (at [73]):

The 2012 amendments introduced s 36(2)(aa) of the Migration Act, which provided an additional basis for a grant of a protection visa. That additional basis is complementary protection in circumstances where the applicant does not fall within s 36(2)(a) because he or she is not a person about whom the Minister is satisfied that Australia has protection obligations because the person is a refugee. As Lander and Gordon JJ said in Minister for Immigration and Citizenship v SZQRB, s 36(2)(aa) recognises that a non-citizen may be entitled to a protection visa because of Australia’s other protection obligations under the Convention against Torture or the International Covenant on Civil and Political Rights (1966) (“the ICCPR”). In broad terms, the criterion is that the Minister must be satisfied that Australia has protection obligations in relation to the visa applicant. Those protection obligations arise if 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”. Paragraphs (c), (d), and (e) of s 36(2A) then respectively provide that a non-citizen will suffer significant harm if, among other things, the non-citizen will be “subjected to torture” or “subjected to cruel or inhuman treatment or punishment” or “subjected to degrading treatment or punishment”.

(Footnotes omitted.)

34    Non-citizens have sought to engage the provisions of ss 36(2)(aa) and 36(2A)(a) in circumstances where they have serious health problems and the receiving country does not have a suitable health system to meet their medical needs. I was referred to two cases where those circumstances were considered.

35    In MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478, Pagone J said (at [6]):

Sections 36(2)(aa), (2A) and (2B) were introduced into the Migration Act 1958 (Cth) in 2011 to provide for the grant of a protection visa to a non-citizen in circumstances where the Minister was not satisfied that Australia owed protection obligations to that non-citizen under the Refugees Convention but was satisfied nonetheless that Australia had non-refoulement obligations in respect of that non-citizen. Section 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has reasonable 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”. Subsection 36(2A)(a) provides that a non-citizen will suffer significant harm if that person will be “arbitrarily deprived of his or her life”. Subsection 36(2B) specifically provides that the risk of significant harm in a country is not taken to include a real risk that the Minister is satisfied “is one faced by the population of the country generally and not faced by the non-citizen personally”. 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.

36    In SZDCD v Minister for Immigration and Border Protection [2019] FCA 326, Gleeson J referred to the circumstances leading to the introduction of the complementary protection regime and dictionary definitions of the word “arbitrary”. Her Honour said that the other paragraphs in s 36(2A) i.e., (b), (c), (d) and (e) which all involve the deliberate imposition of harm upon a non-citizen by a third party and are “self-evidently” directed to serious forms of human rights abuses, provide relevant context for the construction of s 36(2A)(a). Her Honour then said (at [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.

37    As I understand her Honour’s reasons, she held that being arbitrarily deprived of life involves arbitrary conduct and the non-citizen’s removal to the receiving country did not involve arbitrary conduct, albeit the non-citizen may suffer the loss of life as a result of losing access to medical treatment currently available to him in Australia. Justice Gleeson said (at [48(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.

38    The Explanatory Memorandum for the Bill which introduced the complementary protection regime provided that new paragraph 36(2A)(a) derives from the non-refoulement obligation implied under Articles 2 and 6 of the ICCPR. Those Articles are in the following terms:

Article 2

1.    Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2.    Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

Article 6

1.    Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2.    In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

3.    When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4.    Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5.    Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6.    Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

39    As the primary judge noted, the Minister said the following in the course of the Second Reading Speech for the Bill which introduced the complementary protection regime:

Applicants who fall outside these categories are not considered refugees and, consequently, their applications must be rejected by the Department of Immigration and Citizenship and also by the Refugee Review Tribunal.

But some of these people are fleeing significant harm—be they women fleeing so called ‘honour killings’ or, in some certain circumstances depending on the nation, people fleeing persecution on the basis of their sexual preference.

These people can fall outside the categories recognised by our current protection visa process.

So their applications will be rejected at first instance—and again at review—even where Australia’s non-refoulement obligations and other international treaties ensure that we cannot and will not send them back to their countries of origin.”

40    The appellant sought to rely on an academic writing and UK and European cases which have considered Article 2 of the European Convention of Human Rights (ECHR) and the circumstances in which a state has a duty to protect an individual from taking his own life.

41    Article 2, insofar as is presently relevant, provides as follows:

1.    Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.

42    The appellant referred to Keenan v United Kingdom (2001) 33 EHRR 38; Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2; [2012] 2 All ER 381 (Rabone); Case of Fernandes De Oliveira v Portugal [GC] no 78103/14, ECHR 2019/11 (De Oliveira); and McAdam J, “Australian Complementary Protection: A Step-By-Step Approach” (2011) 33 Syd LR 687 at p 695. I did not have the benefit of a close analysis of those authorities and the authorities referred to therein. I am not critical of the parties for that; they recognised that the critical matter was the words of the domestic statute, that is, s 36 of the Act. Having said that, I do not think the authorities are of any direct relevance. The wording of Article 2 of the ECHR is different from that in s 36(2A)(a) and the context of those authorities is a direct obligation imposed on a state and not a complementary protection regime and persons in prison or an institutional facility whether voluntarily or involuntarily. In any event, even in the case of Article 2 of the ECHR, there is no general obligation on a state to prevent suicide. In Rabone, Baroness Hale said (at [100]):

We are not here concerned with that broader question, but with the more precise question of when the state has a duty to protect an individual from taking his own life. It does seem fairly clear that there is no general obligation on the State to prevent a person committing suicide, even if the authorities know or ought to know of a real and immediate risk that she will do so. I say this because, in the case of Mammadov v Azerbaijan, Application No 4762/05, 17 December 2009, decided only a few months before Watts, the court twice stated, at paras 99 and 100, that the duty to protect a person from self-harm arose only “in particular circumstances”, citing Keenan v United Kingdom (2001) 33 EHRR 913, Renolde v. France (2009) 48 EHRR 969, and Tanribilir v. Turkey, Application No 21422/93, 16 November 2000. This is understandable. Autonomous individuals have a right to take their own lives if that is what they truly want. If a person announces her intention of travelling to Switzerland to be assisted to commit suicide there, this is not, by itself, sufficient to impose an obligation under article 2 to take steps to prevent her.

(see generally, the discussion in Woolf H, Jowell J, Donnelly C and Hare I, De Smith’s Judicial Review (8th ed, Thomson Reuters, 2018) at [13-060–13-064]).

43    The appellant submitted that whilst the Tribunal decided that the appellant did not fall within s 36(2A)(a) because that paragraph only covered significant harm inflicted by a third party, whether it be the state, a state agency or an independent third party, the Federal Circuit Court erred in restricting the scope of the paragraph even further so that on that Court’s construction, it only applies to a state or state authority or agency acting tyrannically or capriciously. The following points should be noted about this submission. First, it is not strictly necessary to decide whether the Federal Circuit Court did conclude that these were additional requirements. Secondly, if the Court did so decide, it is not strictly necessary to decide whether it was wrong to do. It is not strictly necessary to decide these issues because a conclusion that the harm must be inflicted by a third party is sufficient to dispose of the appellant’s claim that the Tribunal committed a jurisdictional error.

44    Having said that, it is true that there are phrases or sentences in the primary judge’s reasons suggesting that he found that s 36(2A)(a) only applied in the following circumstances: (1) where the risk of harm emanates from a state based authority or its agents or proxies; and (2) such authorities are acting in a capricious or tyrannical fashion. However, the primary judge’s reasons must be read as a whole and when that is done, I do not think it is correct to conclude that the primary judge limited the operation of s 36(2A)(a) to states or state agencies. I have already noted para 89, but I repeat it here:

What is fundamentally different between this case and other cases involving honour killings; exposure to violence because of sexual preference; or the return of a person to an environment in which family violence is prevalent and condoned; is that each of these exemplars of harm involves the actions of others; whilst in the applicant's case, his harm is potentially self-actioned and self-directed.

45    It is not necessary for the actions to be despotic or tyrannical, these being the words the primary judge picked out of the definition of “arbitrary” in the Oxford English Dictionary. Nevertheless, it is clear from the above, that the primary judge was not restricting the paragraph to states or state authorities.

46    Towards the end of his reasons, his Honour said (at [95]–[96]):

95.    Bell J (of the Victorian Supreme Court) took a similar approach in PJB v Melbourne Health, which was a case concerned with the human rights of a disabled person, subject to guardianship, who wished to remain living in his home. Bell J said as follows:

I therefore conclude that the human right in s 13(a) not to have your privacy, family, home or correspondence ‘arbitrarily’ interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.

96.    In the current matter, there is no suggestion that any act of illegality can attach to the actions of either Australian government officials in deporting the applicant or of the UK authorities in receiving him. If the applicant’s status as a non-citizen is confirmed his deportation can be the only legal consequence of such confirmation. In these circumstances, governmental actions, although of great moment to the applicant personally, cannot be characterised as unpredictable.

(Footnotes omitted.)

47    In my opinion, s 36(2A)(a) is restricted to the risk of being deprived of life by a third party or third parties. The Minister’s Second Reading Speech suggests that the actions of third parties is at the core of the meaning in s 36(2A)(a) of the Act. The other paragraphs in s 36(2A) (i.e., paragraphs (b)–(e) inclusive) involve conduct by the state or state agents or third parties on or with respect to the non-citizen. I am unable to see how suicide (tragic as it no doubt is) is an arbitrary deprivation of life within s 36(2A)(a) of the Act. Further, or in the alternative, there is nothing arbitrary about the removal of the appellant from Australia and the receiving of him by the UK. There is nothing to suggest that the appellant’s removal under s 198 of the Act will be other than lawful.

CONCLUSION

48    The appeal must be dismissed.

Associate:    

Dated:    19 December 2019