FEDERAL COURT OF AUSTRALIA

AJB18 v Minister for Home Affairs [2020] FCA 381

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The order made by the Federal Circuit Court of Australia on 13 March 2019 be set aside and in place of that order, it be ordered that:

(a)    the decision of the Administrative Appeals Tribunal be set aside;

(b)    the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

3.    The first respondent pay the costs of the appellants, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    This appeal involves consideration of a protection visa application brought in May 2014 by a child who was born in Australia in 2012 to Nepalese parents. The child's parents are also included in the application as members of the same family unit.

2    I will refer to the first, second and third appellants as the child, mother and father respectively.

3    The mother and father arrived separately in Australia in 2008 on student visas. The mother was unsuccessful in a protection visa application (lodged in February 2011). Her protection claims were based solely on refugee criterion and included a fear that she would suffer harm at the hands of Maoists in Nepal because of her political activity. The father was denied a further student visa (application lodged March 2010). Requests by both the mother and father for Ministerial intervention were unsuccessful.

4    The child's protection claim as initially explained was that he feared harm on account of his mother's political activities and that if his mother, as his primary carer, was harmed then he would be harmed if he were with her at the time, or he would be uncared for.

5    A delegate of the Minister refused the protection application and the appellants sought review from the Administrative Appeals Tribunal.

6    The Tribunal considered the child's claim. It also considered the mother's protection claim insofar as it related to complementary protection (such further consideration being permissible despite s 48A of the Migration Act 1958 (Cth): AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424; (2015) 244 FCR 131) and also in her capacity as the member of a family unit. The Tribunal affirmed the delegate's decision not to grant the protection visa to the appellants.

7    The appellants sought review of the Tribunal decision by the Federal Circuit Court and that application was unsuccessful. The appellants appeal from that decision to this Court.

8    Whilst the appellants ran a large number of arguments before the Federal Circuit Court, the matters raised by the two grounds on this appeal relate primarily to only one of those earlier grounds, being the manner in which the Tribunal applied the test for what constitutes 'serious harm' under s 91R of the Migration Act.

9    Two important factors underlying the child's protection claim are central to this appeal. First, the mother and father are in a de facto relationship. The mother is not divorced from her husband who remains in Nepal. They have been separated since 2009 (according to the mother). Second, as accepted by the Tribunal, although the child is a Nepalese citizen by descent, there is a real chance that the child's birth would not be registered in Nepal and therefore the child would not be issued with evidence of citizenship such as a minor identification card, a Nepalese passport or a Nepalese citizenship certificate. Without citizenship documentation, the child would not be able to access certain government services or have the same rights as other citizens who have proof of citizenship. The appellants' arguments on the appeal concern whether the Tribunal erred in the manner in which it took into account harm that might be faced by the child on his return to Nepal stemming from the potential lack of evidence of citizenship, and the manner in which the role of the parents was taken into account in assessing such hardships.

Statutory context

10    The criteria for the grant of a Protection (Class XA) visa were relevantly set out in s 36 of the Migration Act and Part 866 of Schedule 2 of the Migration Regulations 1994 (Cth). An applicant for a protection visa had to satisfy at least one of the criteria in s 36(2): see s 36(1A)(b) of the Migration Act.

11    At the relevant time, subsections (a) and (aa) of s 36(2) of the Migration Act provided:

A criterion for a protection visa is that the applicant for the visa is:

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

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

12    The criterion in s 36(2)(a) is referred to as the 'refugee criterion'. The criterion in s 36(2)(aa) is referred to as the 'complementary protection criterion'.

13    The 'Refugees Convention' and the 'Refugees Protocol' were defined in the Migration Act as 'the Convention relating to the Status of Refugees done at Geneva on 28 July 1951' and 'the Protocol relating to the Status of Refugees done at New York on 31 January 1967' respectively (together, the Convention). Australia is a party to the Convention. Article 1A(2) of the Convention, as amended by the Protocol, relevantly defined a 'refugee' as a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

14    As applicable to the appellants' application, s 91R(1) and (2) of the Migration Act provided:

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b)    the persecution involves serious harm to the person; and

   (c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)    a threat to the person's life or liberty;

   (b)    significant physical harassment of the person;

   (c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person's capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

15    Section 91R was repealed by Item 12 of Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) with effect from 18 April 2015. However, absent statutory provisions providing otherwise, an application is determined in accordance with the law as it stood at the time of the application. Whether the relevant criteria are met is determined according to the facts as they stood at the time of determination (whether by the delegate or Tribunal): Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 at 291-292, 294.

16    For a person to have a 'well-founded' fear of persecution for one of the Convention reasons, there must be a 'real chance' that the person will be so persecuted: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 388-389 (Mason CJ), 398 (Dawson J), 407 (Toohey J), 429 (McHugh J).

17    The complementary protection criterion does not require an applicant to establish a well-founded fear of persecution for one of the five Convention reasons listed in the Article 1A(2) definition.

18    Rather, s 36(2)(aa), (2A) and (2B) provided:

(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.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

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

19    The 'real risk' test for complementary protection involves the same standard as the 'real chance' test applicable to the assessment of whether a person has a 'well-founded fear of being persecuted' for the purposes of the refugee criterion. It is to be understood as a real chance as opposed to a remote chance: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [242]-[248] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ), [342] (Flick J).

20    At the relevant time, under s 36(2) of the Migration Act it was open to a non-citizen to apply for a protection visa on the basis that they were a member of the same family unit as a non-citizen who holds a protection visa and meets either the refugee criterion or the complementary protection criterion.

Protection claim before the Tribunal

21    The appellants provided the Department with detailed written claims, documentary evidence and written submissions prepared by legal representatives. They also were interviewed by the delegate in January 2015 and gave oral evidence at a Tribunal hearing over four days between January and April 2017.

22    In the submission to the delegate, the appellants' legal representatives submitted that the child will suffer persecution on two bases:

(1)    he is the dependent young child of the mother, a former political activist who intends to become re-involved in politics if returned to Nepal. As the mother is his primary carer and he is (at that time) only 2 years old, he remains with her at nearly all times and consequently would suffer harm if the mother is attacked for her political opinion. It was submitted that he belongs to the particular social group, being 'dependent children of political activists/former political activists'; and

(2)    he is the son of unmarried parents. It was submitted that he belongs to a particular social group, being 'illegitimate children in Nepal', and will suffer harm as a result.

23    In a statutory declaration in support of the protection application, the mother said:

15.    I fear that if returned to Nepal, [the child] will suffer harm as a result of his relationship with me as my son. I fear that my family members and I will be targeted by Maoists due to my former involvement in political activism, as well as any political activism that I become involved in, if returned to Nepal.

16.    If I return to Nepal I will re-join the NCP. My ambition is to become a Village Development Committee ('VDC') chief, like my father was. I also intend to become re-involved in the Nepal Women's Association. I have had an active involvement in politics in my past and I intend to continue that if returned to Nepal. I could not lay low and cease involvement in politics. I would consider this a form of persecution itself.

17.    [The child] spends nearly all of his time with me, as I am his primary carer. If we were obliged to return to Nepal we could not be separated. In going about my day-to-day activities I would be required to take [the child] with me. [The father] and I would not be able to afford to send [the child] to day care. Therefore if I am targeted on the street, it is likely that [the child] will be with me and will also be targeted.

18.    If obliged to return to Nepal, [the father], [the child] and I would live together as a family. [The father] would seek employment and I would remain at home to look after [the child]. If I needed to leave the house for any reason, I would have to take [the child] with me as I would be unable to leave him at home.

19.    Furthermore, [the father] and I live in a de facto relationship. We are not able to marry as I am still legally married. I cannot divorce my husband as I am not in contact with him and do not know where he is and both parties are required to consent to a divorce in Nepal.

20.    De facto relationships in Nepal are not socially acceptable. Children born to these relationships are looked down upon in Nepalese society as they are considered 'illegitimate'. I even fear telling my family about my de facto relationship and my child from this relationship as I believe that they would disapprove and may even take steps to separate [the father] and I and force me to return to my husband's family.

21.    If obliged to return to Nepal, I do not believe that my family would accept my de facto relationship or my child born outside of marriage.

24    For the purpose of the hearing before the Tribunal, the appellants provided additional information, including extracts from articles about circumstances in Nepal and a statutory declaration of the father.

25    The father addressed matters relating to the difficulties with obtaining evidence of birth registration, the non-acceptance of de facto relationships in Nepal, the mother's ill-health and fears of political persecution. For example, one of the pieces of country information was an extract from an 'asiafoundation' online article (page 393 of the appeal book) that refers to statelessness having a particularly pernicious impact on children in Nepal which often impinges on their rights to education, affordable healthcare and land ownership (and I note for completion that the child is not stateless, but is said to suffer analogous difficulties due to his inability to obtain birth registration and evidence of citizenship). The father also referred to the capacity of the family to subsist and said it was challenged for various reasons. Relevantly, he said that:

Financial hardship [will] crumble us and access to health, education [next words obscured by Department stamp] (nutritious for [child] because of his existing condition of poor weight gain and failure to thrive) will be limited.

26    The Tribunal noted that after the delegate's decision, new claims were made in relation to the child and mother, and that those claims shifted over time, but said that it sought to clarify and confirm those claims during the course of the hearing. It said that it dealt with those new claims in its reasons (at [35]).

The Tribunal's findings

27    The Tribunal first summarised the relevant statutory provisions and evidence, and then collected its findings under various headings reflecting the claims of the appellants as follows:

(1)    Citizenship;

(2)    Nepalese documentation and birth registration;

(3)    Claims relating to marital status;

(4)    Maoist claims;

(5)    Health issues; and

(6)    Economic and transition difficulties.

28    It is not necessary to summarise all of the Tribunal's findings, but it is convenient to include some of the more important extracts in full.

29    The Tribunal considered the status of the child's citizenship, finding as follows:

[37]    The first named applicant's birth certificate confirms that he was born in Australia and that the second and third named applicants are his parents. After some discussion at the hearing regarding the first named applicant's citizenship and the relevant law in Nepal (Nepal Citizenship Act 2063 (2006)), the second and third named applicants agreed that the first named applicant was a national of Nepal by descent. They claimed however he would be stateless 'in effect' because he would not be able to obtain evidence of his citizenship. The second and third names applicants had previously claimed the first named applicant would be stateless because evidence of his parents' marriage registration was required for him to obtain evidence of his Nepalese citizenship. However, as discussed at the hearing, whether a person has documentary proof of citizenship is a different to question to whether they are stateless or a citizen of a particular country. Given the first named applicant's parents were Nepalese citizens at the time of his birth, I find on the basis of s.3(1) of the Nepal Citizenship Act 2063 (2006) that the first named applicant is a citizen of Nepal by descent.

(footnotes omitted)

30    The Tribunal then considered the contention that as his parents are not married, the child's birth could not be registered in Nepal and he would be unable to obtain documentation. The Tribunal concluded as follows:

[39]    It is not clear from the evidence before me whether there is a legal requirement that the first named applicant's parents be married to have his birth registered in Nepal, or to obtain a minor ID card, Nepalese citizenship certificate or Nepalese passport. While the Department was advised by the Chief Officer at the Nepalese Embassy in Canberra that a child born to Nepalese parents would be eligible for a Nepalese passport whether or not their parents were married, the third named applicant was informed by another Embassy official that a child of unmarried Nepalese parents would not be able to obtain a Nepalese passport but could be issued with a travel document and information from the Embassy website indicates a marriage registration certificate would be required. An attempt by his former legal representative to obtain clarification about the matter proved fruitless. The third named applicant has also provided documentary evidence of his inquiry with his former municipality in Nepal revealing that the first named applicant's birth could not be registered with the municipality as there was no record of his parents' marriage registration. Thus the evidence before me, including information from DFAT, indicates there is a real chance that in the reasonably foreseeable future Nepalese officials would require evidence of a registered marriage between the second and third named applicants before they would register the first named applicant's birth in Nepal, or issue him with a Nepalese passport, minor ID card or Nepalese citizenship certificate. Further, as I find below that there is a real chance the second and third named applicants will not marry in the reasonably foreseeable future, I find there is a real chance the first named applicant's birth will not be registered in Nepal, and that he will not be issued a minor ID card, Nepalese passport or Nepalese citizenship certificate in the reasonably foreseeable future.

(footnotes omitted)

31    It should be noted that the Tribunal considered whether it was feasible for the mother to divorce her husband and marry the father. In the absence of evidence that the mother could locate her husband and serve him with a divorce application, the Tribunal proceeded on the basis that the mother would not be able to divorce him and marry the father in the reasonably foreseeable future (at [44]).

32    The Tribunal then considered what might flow from a lack of registration and evidence as to citizenship:

[40]    At the hearing I questioned whether the harm the first named applicant would face in Nepal without birth registration and documentary evidence of his citizenship amounted to serious harm or significant harm. It was claimed the first named applicant would be deprived of the basic rights such as the right to vote, obtain a drivers' licence, access health services, access higher education, own property, file a court application, or travel overseas for employment. I accept on the basis of the independent evidence provided by the applicants and well as information from DFAT that without citizenship documentation the applicant will not be able to receive or access a number of government services, or have the same opportunities and rights in Nepal as citizens who have evidence of their citizenship. However, I find this does not amount to serious harm or significant harm as defined in s.36(2A). The first named applicant is a 5 year old child who is has been and is presently being cared for by his parents. I find below that they will continue to care for him and he will be financially supported by his father if the applicants return to Nepal. I find that the effects of not having his birth registered and not being able to access citizenship documentation will thus be significantly offset by having two parents to care for him and the financial support of his father. Thus, while he is unlikely to be able to exercise the same rights as citizens with evidence of their citizenship or have the same opportunities as other Nepalese citizens I am satisfied his parents will ensure his basic needs are met in the reasonably foreseeable future. I find that the restricted opportunities, limited rights and limited access to government services the first named applicant will have is not harm rising to the level of serious harm. Further, on the evidence before me I am not satisfied that there is a real chance that without having his birth registered and having evidence of his Nepalese citizenship the first named applicant will be arbitrarily deprived of his life, or that severe pain or suffering will be intentionally inflicted on him which could reasonably be regarded as cruel or inhuman, or that will be subjected to an act or omission intended to cause extreme humiliation. There is no question of the death penalty being carried out, or any pain or suffering being intentionally inflicted for one of the five purposes mentioned in the definition of torture. I therefore find that the first named applicant does not face significant harm in Nepal because his birth will not be registered and he will not be able to obtain evidence of his citizenship.

(footnotes omitted)

33    I note the DFAT material to which the Tribunal refers is [5.25] and [5.26] of 'Other Considerations' (a section not confined to either refugee convention claims or complementary protection claims) included in the DFAT Country Information Report Nepal, 21 April 2016, which states:

National Identity Cards

5.25    Citizenship certificates are required by Nepalis to purchase or transfer land; register births, marriages, and deaths; open bank accounts, obtain micro credit loans, and register businesses; attend higher education institutions; acquire travel documents; receive state benefits for the disabled, widowed, or elderly; run for public office; and to enlist in the army, the armed police, and the civil police force. Certificates are also required in order to access formal sector employment opportunities, such as full-time permanent jobs that provide sick leave and pensions.

5.26    Lack of citizenship identification is a widespread problem in Nepal. While accurate statistics are difficult to come by, the Forum for Women, Law & Development found over 4.3 million people were without citizenship identification in Nepal in April 2013, while Human Rights Watch estimates 2.1 million people are without official status and are at risk of statelessness.

34    The Tribunal then considered the status of de facto relationships in Nepal, finding that although there might be family and social disapproval of a de facto relationship, it did not consider such disapproval would comprise serious harm nor amount to significant harm as defined in s 36(2A).

35    The Tribunal considered the appellants' claims regarding their health issues and the standard of healthcare in Nepal. It accepted that the mother has had significant physical and mental health problems which require medical and psychological treatment (at [54]). The Tribunal was satisfied, based on DFAT information, that there are a variety of public and private healthcare facilities in Nepal including free healthcare for citizens. Although it accepted that the quality of medical treatment in Nepal may be lower than in Australia, it found that this was due to government resourcing issues rather than any intentional failure to provide healthcare or intent to provide a lower standard of care in Nepal and so it did not meet the standard of arbitrary deprivation of life (at [55]).

36    The Tribunal noted early in its reasons that submissions had been made that the child receives treatment for a kidney condition and some developmental delay (at [34]). I note that there is a submission from the father included in the documents before the Tribunal and it is apparent that this is the submission to which the Tribunal refers. In the submission the father relevantly states: that the child is under the care of a urologist/surgeon for 'dilated kidney condition' although the last ultrasound indicated the condition to be stable and improving with age; that he is under the care of a specialist team at Child Development Services in an identified hospital for 'developmental delay'; and that a paediatrician has concluded that the child has delayed personal/social and fine motor skills. The father says that he fears relocation to India or Nepal will adversely affect the child as the family will not be able to obtain 'such services' there.

37    The Tribunal stated that the appellants claimed that the child would not be able to access the services he would require in Nepal for his claimed health and development needs but said that no medical evidence had been provided regarding those matters (at [56]).

38    The Tribunal also considered claims that the appellants would face economic hardship in Nepal due to poor employment opportunities in Nepal and because the mother's and father's families would not support them. It considered that the father had strong employment prospects and had attempted to underestimate his ability to find employment and to support himself, his partner and child in Nepal. It considered that whilst the appellants may face hardship in Nepal, such hardship would not amount to serious or significant harm. It said:

[59]    … I believe the [father] has attempted to underestimate his ability to find employment and to support himself, his partner and child in Nepal. I conclude on the evidence before me that while it is plausible that the applicants will face some economic hardship in Nepal and their standard of living will not be equivalent to that in a country like Australia, especially on their immediate return, I am satisfied that the [father] is very well placed to find good employment in Nepal and to re-establish himself, his partner and son in Nepal, and facilitate the [child's] transition to life in Nepal and meet the basic and essential needs of the [child] even though his birth will not be registered and he will not be able to obtain evidence of his citizenship.

39    The Tribunal concluded that:

(1)    the child did not meet the requirements of a refugee under s 5H(1) of the Migration Act and was not eligible for protection under s 36(2)(a), and did not meet the requirements of the complementary protection assessment under s 36(2)(aa);

(2)    the mother did not meet the requirements of the complementary protection assessment under s 36(2)(aa); and

(3)    the father's claim was dependent upon the claims of the child and mother as he only sought to be considered in relation to family unit criterion, and so it followed that his claim was not accepted.

40    Accordingly, the Tribunal affirmed the delegate's decision.

Before the Federal Circuit Court

41    It is only necessary to summarise the primary judge's approach to ground 1 as argued before his Honour. The other grounds are not pursued in or relevant to this appeal. Because of the application for leave to rely on new grounds, it is useful to include ground 1 before the primary judge and its particulars in full:

1.    The Tribunal made a jurisdictional error by finding at [40] (CB 478-479) that the harm that the first applicant would face in Nepal without birth registration and documentary evidence of his citizenship would not amount to serious harm or significant harm.

Particulars

a)    At [40] (CB 478), the Tribunal accepted that without citizenship documentation the first applicant will not be able to receive or access a number of government services, or have the same opportunities and rights in Nepal as citizens who have evidence of their citizenship.

b)    The Tribunal then found that the above does not amount to serious harm or significant harm as defined in s 36(2A) of the Migration Act 1958 (the Act).

c)    In making that finding, the Tribunal misapplied the test for what constitutes serious harm and significant harm under the Act.

d)    Alternatively, the Tribunal misunderstood the nature of the claim advanced by the first applicant, and/or failed to consider it in the manner required by the Act and the authorities.

42    The primary judge considered that ground 1 and its accompanying submissions were confusing and could have been understood as the appellants asserting that the Tribunal's decision was unreasonable, irrational or illogical, or that the Tribunal failed to address one of the child's claims.

43    His Honour accurately summarised the applicable provisions and considered that the Tribunal was well aware of the requirements of both the Convention and complementary protection provisions in the Migration Act, as well as the meaning of 'serious' and 'significant' harm (at [82]).

44    The primary judge acknowledged that the appellants took particular issue with the Tribunal not paying appropriate attention to the educational needs of the child. However, the primary judge did not consider that the child made any specific claim in relation to his educational needs, and said that submissions before the Tribunal were directed to accessing education in India and not in Nepal (at [92]). On the basis of those findings, the primary judge considered that it was not the case that the Tribunal misunderstood the nature of the child's claims or that the findings were unreasonable, or irrational or illogical (at [93]).

45    The primary judge noted that the Tribunal accepted that the first appellant would not be able to receive or access 'a number of government services' or 'have the same opportunities and rights' in Nepal (at [85]). However, his Honour said that the Tribunal was conscious and aware of the difficulties the child would face upon his return to Nepal (citing, relevantly, [40], [56] and [59] of the Tribunal's reasons) but was satisfied the father would meet the child's needs (at [96]). The primary judge concluded that the Tribunal's decision was open to it and was not unreasonable (at [99]).

Grounds of appeal

46    There is a dispute as to whether or not the appellants require leave to amend their grounds of appeal. Assuming leave is required, the applicable principles are discussed in CGA15 v Minister for Home Affairs [2019] FCAFC 46:

[35]    In a case such as the present, where the proposed new ground could not possibly have been met by calling evidence in the hearing below, an appellate court has a discretion to permit an appellant to argue a new issue on appeal where it considers that it is expedient in the interests of justice to entertain the issue: Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). Generally speaking the court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O'Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ).

[36]    There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68; [2014] FCA 686 at [55] (Flick J).

[37]    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave, which have been applied in numerous decisions. One consideration weighing against a grant of leave in the present case is that the appellant did not provide an explanation for the failure to raise the proposed new ground before the Federal Circuit Court. While the fact that the appellant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. A new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant's lawyers in the hearing below: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J).

[38]    All other relevant considerations in the present case point in favour of a grant of leave. First, the new ground raises a question of law. The facts are not in controversy and the issue involves the proper construction of the Tribunal's reasons. Second, having regard to the abandonment of Ground 2 the addition of the new ground will not involve any further sitting time. Third, the Minister does not contend that he will suffer any prejudice if leave is granted, whereas the prejudice suffered by the appellant may be significant if leave is refused. Fourth, and most importantly, not only do we consider that proposed new Ground 3 has merit; for the reasons we explain we consider this ground of appeal should succeed. In the circumstances we are satisfied that it is expedient in the interests of justice to grant leave to advance the new ground.

47    The appellants were self-represented when drafting the notice of appeal filed in this Court.

48    The grounds as originally filed were that the primary judge incorrectly interpreted or applied the law and ignored the materials the decision maker was required to look at. No particulars were provided.

49    Subsequently the appellants obtained pro bono assistance. Counsel acting for the appellants also represented them before the Federal Circuit Court. I note for completion that the father has been appointed the litigation guardian of the child.

50    The grounds that the appellants now seek to rely on as to error on the part of the primary judge are:

1.    Incorrectly interpreting or applying the law at [40] of the Administrative Appeals Tribunal's decision by:

(a)    failing to conduct a qualitative assessment of the harms to be suffered by the First Appellant; and further and alternatively,

(b)    taking into account irrelevant considerations of parental care and financial support as factors that can 'significantly offset' the harms to be suffered by the First Appellant.

2.    Ignoring materials the decision maker was required to look at in reaching the decision at [40] of the Administrative Appeals Tribunal's decision by failing to take into account the relevant considerations of:

(a)    the Second Appellant's physical and mental ill health, and the adverse impact that this has on parental care and financial support as a potential 'offset' to the harms to be suffered by the First Appellant; and further and alternatively,

(b)    what comprises the First Appellant's 'reasonably foreseeable future'.

51    Despite the question as to whether leave was required, the appeal proceeded on the basis that I heard full argument on the grounds including the proposed amended grounds.

52    Counsel for the appellants submits that all four arguments reflected by the two grounds concern the findings at [40] of the Tribunal's reasons and relate to the application of the serious harm or significant harm test, matters encompassed by ground 1 of the grounds before the primary judge. The Minister contends that the ground below did not encompass arguments as to failing to take into account a relevant consideration or taking into account irrelevant considerations that are raised by the proposed amended grounds. The Minister accepts that, save for the loss of a layer of appeal, the Minister is not prejudiced by the inclusion of the proposed amended grounds because, in particular, there is no attempt to rely upon new evidence.

53    Counsel for the appellants frankly admitted that the refinement in the appeal grounds from those before the primary judge arose as a result of further thinking on his part and the input of his instructing solicitors, but maintains that the arguments are not new. Rather, the arguments fall within the parameters of ground 1 before the primary judge.

54    I accept the appellants' submission that all of the proposed grounds of appeal relate to the proper application of the serious harm threshold and that there is a degree of overlap between them. Accordingly, the appropriate starting point is how that test is to be applied. In the end, the outcome of this appeal turns on the first argument of proposed amended ground 1, although I will address the other arguments and the question of leave further below.

How the harm threshold is to be applied

55    The appellants relied on serious harm and significant harm before the primary judge. That is, the appellants relied on both limbs of s 36(2). However, based on the manner in which the submissions proceeded it is the first limb, serious harm, that is central to this appeal.

56    The task for the purpose of s 36(2)(a) (refugee criterion) was explained by Mortimer J in CFB16 v Minister for Home Affairs [2019] FCA 1415:

[38]    As Middleton J and I explained in AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 at [46], what is important is for a decision-maker to focus on the positive question whether a person's fear is well-founded, without too much emphasis on the subtly different question of whether a chance of serious harm is 'remote'. Too much focus on the question of whether a chance of harm is remote can lead a decision-maker away from the statutory task, which can be described in the following way. A person expresses a subjective fear of persecution (relevantly) because he is and can be identified as a Shia Muslim, and because there is cogent information suggesting a history of sectarian violence against Shia in the Kurram Agency and in FATA more generally, which is where he is from and where he would be likely to return. The decision-maker's task then is: what does the most recent and reliable country information before the decision-maker indicate about whether his fears, as expressed, are well-founded? On the current information and material before the decision-maker, do those fears have an objective basis of a kind that justifies the offering of surrogate protection to that person? Subject to arguments based on matters such as irrationality, illogicality or legal unreasonableness, the answer to that question will generally be for the decision-maker, and more than one conclusion might reasonably be open, depending on the weight accorded to the relevant information and evidence.

57    In AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47, Middleton and Mortimer JJ described the task further as follows:

[40]    Despite the caution in Guo, it is still common for decision-makers (and courts) to move into the language of 'real chance' of harm, and to use in contradistinction to that term the words 'remote' or 'insubstantial'. That is what the Tribunal did in this case. We observe that, at a day-to-day level in a busy administrative tribunal, it may be useful for a decision-maker to contrast in her or his own mind whether, on the material, the harm feared by a person is 'remote' with whether there is a 'real chance' the person may experience the harm she or he fears. Nevertheless, these are not the words of the Convention and the issues on this appeal illustrate how substitution of that kind can lead to difficulties.

[41]    In other jurisdictions, the language of 'possibility' is commonly used as the explanatory of the content of a well-founded fear, but always with adjectival qualification.

[42]    The United States Supreme Court has used 'reasonable possibility': Immigration and Naturalization Service v Cardoza-Fonseca 480 US 421 (1987) ('Cardoza-Fonseca') at 440 (Stevens J). Cardoza-Fonseca is regarded by Hathaway and Foster as a 'seminal precedent': Hathaway JC and Foster M, The Law of Refugee Status (2nd ed, Cambridge University Press, 2014) p 111. In the United Kingdom, the House of Lords has used 'a reasonable degree of likelihood' of persecution or a 'real and substantial risk' of persecution: R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958 at 994 (Lord Keith of Kinkel) and 1000 (Lord Goff of Chieveley). The Supreme Court of Canada has used 'reasonable possibility' or 'serious possibility': Kwong Hung Chan v Canada (Minister of Employment and Immigration) [1995] 3 SCR 593 ('Kwong Hung Chan v Canada') at 659 (Major J).

[43]    The adjectival qualification emphasises the requisite sufficiency of the objective basis for a person's fear: namely, a level which justifies another contracting State being required to offer surrogate protection to that person.

[44]    The antonym of 'well-founded' has been described as:

(1)    'mere possibility' (see Major J in Kwong Hung Chan v Canada at 659); and

(2)    'remote chance' (see the New Zealand High Court in DG v Refugee Status Appeals Authority [2001] NZHC 443 (Chisholm J)).

[45]    In Chan, Toohey J used 'remote' together with the adjective 'insubstantial', which takes its meaning closer to some of the other negative descriptions such as 'fanciful' (see Hathaway and Foster at p 114).

[46]    Reaching too readily for the label 'remote' as a descriptor of risk may lead to error. Whilst we conclude on this appeal that the Tribunal's findings were open to it in this particular case, it would not be correct to use 'remoteness' as suggesting that to be well-founded, the harm feared by a person must be of an immediate or direct nature. Nor should a decision-maker go straight to the question of whether there is only a 'remote chance' that the harm feared by an applicant will eventuate. That may lead a decision-maker inadvertently into a reasoning process relying on probabilities. It may subvert the Convention's focus on the positive question as to whether there is a sufficient basis in the evidence to describe a person's fear of persecution as 'well-founded'.

[47]    In addition, a decision-maker should not ignore the type of fear and the subjective fears of an applicant in the objective evaluation of whether the particular fear was well-founded. An applicant's expression of her or his fear, and the circumstances in which it is claimed to arise, may inform the assessment of whether it is well-founded.

58    Another useful example is provided by O'Bryan J's description of the task undertaken by the relevant tribunal (the Immigration Assessment Authority) in BMG17 v Minister for Immigration and Border Protection [2019] FCA 1281:

[28]    First, the IAA correctly summarised the meaning of the phrase 'well-founded fear of persecution', referring to the 'real chance' test (Reasons [6]).

[29]    Second, the IAA applied the 'real chance' test in considering the appellant's claims. The IAA considered each basis of the appellant's fear, assessing the submissions and material before it, and in respect of each of them concluded that it was not satisfied that the appellant faced a real chance of harm either individually or collectively (Reasons [11], [19], [26], [36] and [38]).

59    The assessment of fear of persecution must involve speculation about the future, and an assessment of the period of time to look into the future: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ).

60    As Mortimer J stated in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591:

[60]    The 'reasonably foreseeable future' is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the 'well-founded' aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical 'on the ground' circumstances she or he will be living in. Using 'reasonably foreseeable' also carries with it a rejection of an assessment which becomes too remote from a person's expected life circumstances. These are not matters which can be expressed sensibly with any more precision.

Consideration - ground 1(a)

61    It is clear from the text of the Tribunal's reason at [40] that it was well aware that the question for it was the level and nature of the risk to the child in assessing whether fears the subject of his claims were well-founded. It is also clear that the Tribunal was aware of the significance of considering the 'reasonably foreseeable future'. That is an expression used on numerous occasions in its reasons.

62    It is one thing to be aware of the task to be undertaken and another to carry it out. The Tribunal's reasons are relatively detailed and it is to be acknowledged that the Member seems to have gone to some trouble to accommodate a number of hearings with the appellants. However, I do not consider that [40] of the reasons discloses proper consideration of each of the fears raised on behalf of the child, the materials before it, the impact of the feared deprivation on the child in his particular circumstances and whether and how that impact might be alleviated. Such consideration was required so that the Tribunal could properly assess whether cumulatively or separately the fears were such as to satisfy it that there was a well-founded fear of serious harm.

63    The issue is dealt with in [40] with a level of brevity and ambiguous language that does not sufficiently disclose the reasoning or foundation for the reasoning.

64    The Tribunal commences its reasons at [40] by noting the appellants' argument that the absence of citizenship documentation would lead to the deprivation of identified rights such as the right to vote, obtain a drivers' licence, access health services, access higher education, own property, file a court application, or travel overseas for employment.

65    The Tribunal then states the extent to which it accepts the child will be affected by the absence of citizenship documentation. It does not address the particular claims as to deprivation but instead makes the general statement that it accepts that without citizenship documentation the child will not be able to receive or access 'a number of government services', or have the same 'opportunities and rights' in Nepal as citizens who have evidence of their citizenship. The Tribunal does not specify the relevant government services or the relevant opportunities that it considers might be denied or the harm that might flow from such deprivation.

66    Although it does not identify the specific deprivation, it then finds that any deprivation does not amount to serious harm because the child's parents can meet his 'basic needs' in the reasonably foreseeable future. It does not explain what it means by 'basic needs'.

67    It is well established that the reasons of the Tribunal are to be read as a whole and without an eye too keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 270, 272; see also Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 at [31]. But even allowing for such guidance (and leaving aside the question of healthcare which was dealt with separately), the Tribunal's reasons do not descend into a consideration of the components of the claim, such as the prospect that education might be denied to the child, the harm that might result and how it is said that the parents are able to mitigate the harm that might otherwise result. It might seem open to speculate as to what the Tribunal had in mind: that the father would be in a position to pay for all such services that the government might otherwise provide, at least in the short term. After all, at [59] the Tribunal addresses the prospect that the father will be able to work and finance the 'basic and essential needs' of the child. But such speculation is inappropriate, particularly in circumstances where the rights and services referred to in the claim are not all of the nature that can bought. Although limited, there was some material before the Tribunal that was relevant to the claims identified by the appellants, such as that referred to at [25] above, but it is not possible to discern from the reasons whether the evidence was overlooked, not considered credible or whether the Tribunal did not accept that all claims listed at [40] of its reasons fell within the ambit of its reference to 'government services' or 'opportunities'. Nor is it clear whether the Tribunal failed to refer to it because it considered it related to a time further into the future than (say) the next few years of the child's life, and therefore being a time perhaps considered too remote by the Tribunal.

68    Having carefully considered the reasons of the Tribunal and in particular what is said at [40], I consider that the Tribunal fell into error in the manner in which it carried out its statutory task. The identification of the period of the 'reasonably foreseeable future' was a matter for the Tribunal, having regard to the claims and the evidence. However, the Tribunal should have considered the particular fears as articulated on behalf of the child, assessed whether there was evidence to support them, considered the individual circumstances of the child and considered the circumstances of the country to which he would return. The generalised reference to the risk of not receiving or accessing 'a number of government services', or not having the same 'opportunities and rights', combined with the generalised reference to the child's 'basic needs' being met by his parents does not reveal a sufficient engagement with the claims or the task required.

69    There might be different ways in which such error might be described, but I am prepared to accept the appellants' description as developed during the hearing, that being that the Tribunal's failure to engage with the claims or undertake the qualitative task required to assess the nature and effect of the identified feared harm comprised a constructive failure on the part of the Tribunal to carry out its statutory task, and so comprised jurisdictional error. I consider the primary judge erred in failing to find that the Tribunal fell into error.

70    However, I should add that the primary judge was presented with an argument relating to the serious or significant harm tests that was apparently less developed than as presented to this Court. The primary judge said that the argument as to ground 1 before him was confusing. In fairness to his Honour, he attempted to unravel and address it. For example, it seems that the attention of the primary judge was not drawn sufficiently to the express concern about access to education that was made by the father and to which I was referred by counsel. To the contrary, the primary judge proceeded on the basis that no claim was made based on fetters on access to education in Nepal and that limited access to education was raised only in the context of relocation to India ([91]-[92] of the primary judge's reasons). I do not consider the father's reference to education was so limited, and the provision of material by him that refers to limits on access to education in Nepal (albeit in the context of a stateless person) supports that view. There was also the DFAT information that in particular addressed the lack of access to higher education.

71    Nor is it clear, based on the Tribunal's reasons, that the Tribunal assumed that the right to education is a right that would otherwise be met by the parents. So much would depend upon whether it included education as one of the denied government services and whether it considered education to be a basic need. The reasons do not disclose as much. For completion, I note that there would not seem to be any issue that the denial of access to education may, depending upon the circumstances, amount to persecution. See generally the discussion in Hathaway and Foster, The Law of Refugee Status (2nd edition, Cambridge University, 2014) at [3.5.3]; and Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 at [29].

72    Before leaving this ground, I note that counsel for the appellants acknowledged that some of the claims referred to at [40] of the Tribunal's reasons would not necessarily rise to the description of serious harm, the inability to vote being one of those. However, that concession highlights the need for the Tribunal to assess each of the relevant basic rights it was feared would be denied as referred to in [40]. The harm that might flow from the denial of such rights and that founds the claimed feared persecution may well differ depending on its nature.

73    Counsel for the appellants also submitted that the Tribunal was obliged to consider the position of the child, not just upon his return to Nepal, but into adulthood. In support of that submission counsel relied on rights that would, on the submission, clearly affect the child as an adult: the denial of access to formal sector employment, such as full-time permanent jobs that provide sick leave and pensions in circumstances where the court has recognised that denial of access to employment can constitute serious harm (referring to Chan Yee Kin at 430); denial of the right to travel overseas, the effect of such a limitation being exacerbated where DFAT information reflects that Nepalese nationals frequently leave Nepal to obtain work; the denial of the right to file a court application, leaving the child (as an adult) vulnerable to violation of his rights without any redress; the denial of the right to own property or register personal property, leaving the child (as an adult) unable to open bank accounts and impairing his ability to subsist; and the denial of access to tertiary education.

74    The Minister submitted that matters such as employment, voting, overseas travel, ownership of property and tertiary education extended too far into the future to constitute harm within the reasonably foreseeable future. That conclusion may have been open to the Tribunal depending on the evidence (applying the principles as discussed in AKH16 v Minister for Immigration and Border Protection set out above and Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 279) but it is not apparent that the Tribunal dismissed the relevance of the matters to the question of harm on that basis. Rather, it placed emphasis on the prospective role of the parents in mitigating harm arising from the feared denial of access to government services.

75    It is not necessary or appropriate for this Court to determine the relevant time that comprises the 'reasonably foreseeable future' in this case, particularly in light of the decision I have reached as to the argument at ground 1(a). That task is for the decision maker, having regard to the evidence and the particular circumstances of the applicant. However, I have referred to the respective submissions of the parties because they again highlight the need for the Tribunal to assess the nature of the rights said to be affected by the lack of evidence of citizenship and the particular circumstances of the child, so that the 'reasonably foreseeable future' can be appropriately assessed.

76    Finally, the appellants place some weight on the feared access to health services arising from lack of citizenship documentation. This claim was dealt with separately by the Tribunal, which found that there was insufficient evidence as to the nature of any medical needs of the child. That conclusion was open to the Tribunal on the evidence ([36]-[37] of the Tribunal's reasons). I do not consider that error is disclosed as to the consideration of harm in the context of the child's access to medical treatment.

Ground 1(b)

77    The appellants appeared to accept through counsel that as part of the task of having regard to the particular circumstances of the child, the role of the parents may be relevant depending on the nature of the harm being considered. The real complaint, then, appears to be that the Tribunal referred to the role of the parents in a global sense, suggesting their support could meet or 'set off' the harm that might otherwise flow from denial of access to government services and other rights, even where such denied or diminished services or rights extend to matters such as access to education and the ability to travel overseas. The appellants submit that in order to properly undertake its task, the Tribunal needed to consider the discrete aspects of the claim and, had it done so, it would have found that the fears referred to in [40] could not be met by financial support of the child's parents, even assuming such support was to continue indefinitely. I accept that whilst financial support may well be relevant, it is not on its face an answer to the claims as a whole. Nor is it appropriate, practically speaking, to require parents to mitigate the risk of persecution where mere financial support cannot meet or mitigate the identified feared harm. It remained necessary for the Tribunal to consider and expose which of the claims it considered would be met by the parents' support as part of meeting the child's 'basic needs'.

78    I consider that these arguments arising under ground 1(b), as refined by counsel during the hearing, are encompassed by the matters the subject of ground 1(a) before this Court and ground 1 before the primary judge. Leave is not required to pursue them separately. The question of the role of the parents relates to the matters to be considered for the purpose of evaluating whether there is a well-founded fear of persecution taking into account the particular circumstances and vulnerabilities of the child.

79    I have allowed appeal ground 1.

Ground 2(a)

80    In light of the outcome with respect to ground 1, it is not strictly necessary to consider ground 2. I will do so briefly. I do not accept that the matters the subject of this argument were raised before the Tribunal. There is not within the materials an articulated claim that the ability of the parents to support the child would be affected by the medical conditions that affect the mother. In those circumstances, I do not consider that there was error on the part of the Tribunal in failing to have regard to that matter. Nor do I consider it was clearly raised as an argument before the primary judge. Having regard to the principles referred to above (at [46]), I do not consider that leave should be granted for the appellants to rely upon the argument in those circumstances and where, had it been raised, the father and mother could have been questioned before the Tribunal on the issue.

Ground 2(b)

81    The question of the proper manner in which the Tribunal speculates as to the future forms part of the consideration of the manner in which the Tribunal undertook its statutory task. This has been addressed by ground 1. The task was to be undertaken having regard to the claimed fears and the evidence of such fears. The assessment of the reasonably foreseeable future was one for the Tribunal to undertake on the basis of probative material.

82    By ground 2(b) the appellants now make a submission to the effect that it was also reasonably foreseeable that (for example) the parents might have more children and this would impact upon their ability to support the child. They submit that it was reasonably foreseeable that the parents may predecease the child.

83    They submit that the Tribunal failed to consider such relevant considerations.

84    There is no suggestion such matters were raised before the Tribunal. The Tribunal was aware of the need to consider the reasonably foreseeable future. I do not consider the Tribunal erred by failing to have regard to such matters in circumstances where they were raised apparently for the first time before this Court, and by way of submission. On the basis that ground 2(b) purports to raise arguments that were not made before the Tribunal and primary judge, I would decline leave to rely on the amended ground of appeal.

Determination

85    In summary, ground 1 of the appeal is upheld. Leave to amend the notice of appeal by the inclusion of proposed ground 2 is refused. I would allow the appeal with costs.

86    The Court gratefully records the assistance of pro bono counsel, Mr David Blades, who acted for the appellants in this matter.

Associate:

Dated:    24 March 2020