FEDERAL COURT OF AUSTRALIA MZZKS v Minister for Immigration and Border Protection [2015] FCA 916 Citation: MZZKS v Minister for Immigration and Border Protection [2015] FCA 916 Appeal from: MZZKS v Minister for Immigration & Anor [2015] FCCA 532 Parties: MZZKS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 348 of 2015 Judge: TRACEY J Date of judgment: 26 August 2015 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – judicial review of a decision to refuse a Protection (Class XA) visa – whether Tribunal failed to consider applicant's claim that racial basis for alleged discrimination rendered it degrading treatment or punishment Legislation: Migration Act 1958 (Cth), ss 5, 36(2)(a), 36(2)(aa), 36(2A), 430 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 – cited East African Asians v United Kingdom (1973) 3 EHRR 76 – cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 – cited MZZKS v Minister for Immigration and Border Protection [2015] FCCA 532 – cited Date of hearing: 3 August 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 33 Counsel for the Appellant: Mr J Gormly Solicitor for the Appellant: Labour Pains Legal Counsel for the First Respondent: Mr BD Kaplan Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent entered a submitting appearance save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 348 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: MZZKS Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: TRACEY J DATE OF ORDER: 26 AUGUST 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed with costs fixed at $5,200. 2. The Administrative Appeals Tribunal be substituted as the second respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 348 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: MZZKS Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: TRACEY J DATE: 26 AUGUST 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant is a citizen of Afghanistan. He is of Hazara ethnicity and Shia religion. He arrived at Christmas Island without a visa in June 2012. He applied for a Protection (Class XA) visa. He claimed to fear persecution from the Taliban because he was Hazara Shia, a student training to be a teacher and a 'failed asylum seeker'. 2 In his visa application, the appellant claimed that he had lived most of his life in the majority Hazara area of Jaghori. He claimed that in 2006, while he was on his way to Kabul, the Taliban stopped his car and forcibly took him away to be interrogated. He said that he had been treated harshly and then let go. 3 He further claimed that, despite threats from the Taliban, he helped in the campaign of an election candidate in 2010. 4 In 2011, while travelling between his university in Kabul and Jaghori, where his parents resided, the appellant claimed that the Taliban stopped his car and interrogated and insulted him before letting him go later in the day. 5 The appellant asserted that, after this incident, the security situation in Kabul deteriorated making it no longer safe to travel to his parents' residence in Jaghori. 6 The application was refused by a delegate of the Minister. THE REFUGEE REVIEW TRIBUNAL 7 The appellant appealed to the Refugee Review Tribunal ("the Tribunal"). 8 His appeal was supported by a lengthy submission from an agent acting on the appellant's behalf. The Tribunal also conducted an oral hearing. In the course of its interview with the appellant the Tribunal sought to elicit additional information which might support one of the appellant's central claims. It recorded (at [38]) its questions and the appellant's responses: "The Tribunal asked the applicant if he had suffered any discrimination or disadvantage because he is Hazara Shia. He said for as long as he knows, Hazaras have been discriminated against. The Tribunal put to him he had a family home and land, and was able to study at university, so what disadvantage had he had. He said his university had done research and found 85% of Hazara students suffered discrimination. The Tribunal asked if he had any personal experience of it. He said one day before class he had mentioned about the Mujahadeen leadership and that some of them were Pashtuns, not just Hazaras. His professor got angry and told him to report to his office. The next day he attended the office and the professor told him as a Hazara he was having his golden time now, studying at university, so why was he saying such things. The professor threatened to fail him. The Tribunal asked if he had failed, and the applicant said no, he had pleaded with him not to fail him. When asked if he had suffered any other discrimination the applicant said you can always feel it, such as when you go to the market or to a government department." 9 The Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention. The Tribunal considered the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). In this respect, the Tribunal asked whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there was a real risk he would suffer significant harm. The terms in which the Tribunal had directed itself on this issue were not controversial. 10 At [64] the Tribunal made findings about the risk that the applicant would face discrimination in Afghanistan: "The Tribunal has considered the applicant's claim that he was discriminated against in Afghanistan because he was Hazara Shia. The Tribunal notes the applicant was a relatively well-off person, owning property and land with his brother, and able to study at university. The Tribunal does not accept being threatened with a fail at university, and then not being failed, amounts to 'serious harm' as required by s.91R. The Tribunal does not accept he faces discrimination amounting to serious harm for reason of his religion and ethnicity should be (sic) return to Afghanistan in the reasonably foreseeable future." 11 At [71] and [72] the Tribunal said: "71. The Tribunal has also considered the application of s.36(2)(aa) to the applicant's circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Afghanistan, there is a real risk he will suffer significant harm. 72. The applicant claims that should he be returned to Afghanistan he would be at risk of significant harm including arbitrary deprivation of life, torture, cruel and inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal acknowledges the ongoing conflict in Afghanistan, however, country information from the Danish Immigration Service and the European Country of Origin Information Network indicate Kabul is a relatively safe area in Afghanistan, with a population of 5 million including 1 million Hazaras. The Tribunal does not accept that the risk of the applicant suffering significant harm if removed from Australia to Kabul in Afghanistan is a 'real risk'. That is, the Tribunal does not accept there is a real risk that the death penalty will be carried out, or that he will be arbitrarily deprived of his life, or subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment if he returns to Kabul. If the Tribunal is wrong in treating Kabul as his home area, for the reasons given above the Tribunal considers it is reasonable for the applicant to relocate to Kabul where there would not be a real risk that he will suffer significant harm." 12 The Tribunal concluded that it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa). The Tribunal affirmed the delegate's decision. THE FEDERAL CIRCUIT COURT 13 The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court. He relied on the following ground: "The decision of the second respondent was affected by jurisdictional error in that: 1. The second respondent (the Tribunal) constructively failed to exercise its jurisdiction in that it did not consider an integer of the applicant's claims for complementary protection, namely that the discrimination against Hazara Shias experienced by the applicant of itself amounted to "degrading treatment or punishment" as defined in s 5(1) Migration Act because this discrimination was on the basis of race and therefore and in the circumstances inherently degrading. This is to be distinguished from the differential treatment actually meted out to Hazara Shias and to the applicant, considered in isolation from its racial basis, to which the Tribunal limited its review. Particulars The Tribunal made no finding and did not say that it did not accept that Hazara Shias were not or would not be discriminated against in Kabul on the grounds of their race and religion as claimed by the applicant. 14 The appellant claimed that there were two integers of the appellant's complementary protection claim. The first integer comprised claims that the appellant would suffer "degrading treatment" through the denial of social and economic rights. The second integer was that the racial basis of the discrimination of itself rendered it "degrading treatment or punishment". Reliance was placed on the decision of the European Commission on Human Rights in East African Asians v United Kingdom (1973) 3 EHRR 76. 15 The appellant argued that, in reaching its conclusions on complementary protection, the Tribunal did not explicitly address or purport to address the second integer of that claim, namely, that the discrimination he faced as a Hazara Shia in Kabul would, in the circumstances, be degrading because it was discrimination which would occur because of his race. 16 The appellant contended that the conclusion reached in paragraph 72 of the Tribunal's reasons could not be taken as a finding relating to the second integer of the complementary protection claim because further factual findings needed to be made in order to deal with that second integer. 17 The Federal Circuit Court rejected the application. It was satisfied that the Tribunal had considered both integers of the complementary protection claim: see MZZKS v Minister for Immigration and Border Protection [2015] FCCA 532. 18 The trial judge found that paragraph 72 of the Tribunal's decision could, on a fair reading, be understood as an acknowledgement and consideration of the complementary protection claims. His Honour accepted the Minister's submission that the Tribunal's two references to "degrading treatment" in that paragraph were intended to and did cover both integers of the appellant's complementary protection claim. THE APPEAL 19 The appellant's notice of appeal to this Court relies on two grounds. The first is the same ground upon which he relied in the Federal Circuit Court. The second is related to the first. It is that the Court erred in finding that paragraph 72 of the Tribunal's decision could be understood as dealing with the East African Asians integer. 20 The appellant contended that the Tribunal had failed to address the East African Asians claim. He submitted that the Tribunal "had to find either there was no discrimination, or to find that, in the circumstances, the racial basis of the discrimination was not 'degrading'". He further submitted that, because of a lack of factual identity between the refugee/first integer claims and the East African Asians claim, the Tribunal's failure to deal expressly with the issue in its reasons supported an inference that it had failed to consider the issue. 21 The Minister responded that, when paragraph 72 was read in context, the Tribunal could be seen to have considered the claim and determined that there was not a real risk that the appellant would be subjected to any form of degrading treatment or punishment on his return to Afghanistan. CONSIDERATION 22 The primary judge undertook an analysis of the context in which the findings recorded in paragraph 72 were made in his reasons at [67]-[70] and [81]-[89]. I respectfully agree with this analysis and do not need to repeat it. 23 What it discloses is that the conclusions contained in paragraph 72 are to be understood in the light of the following material: The appellant sought to establish his claim for a protection visa on the bases that he was a refugee within the meaning of the Refugee Convention (s 36(2)(a)) and that he was entitled to the benefits of the complementary protection provisions of the Act (s 36(2)(aa)). Relevantly, the appellant raised his complementary protection claim by arguing that, were he to be returned to Afghanistan, there was a real risk that he would suffer significant harm in that he would be subjected to degrading treatment or punishment. There were two integers of the complementary protection claim. The first was that the appellant had been and would be discriminated against by being denied social and economic rights such as food, shelter, employment, education and medical treatment, such that his ability to subsist or survive would be at risk. The second was that the very existence of discrimination against him on the grounds of his religious faith and his race would constitute degrading treatment and hence "significant harm" for the purposes of s 36(2A) of the Act. Both claims and both integers of the second claim were founded on evidence and submissions of discrimination against the appellant (both past and apprehended) because of his religious faith and his race. Both claims were developed in lengthy and well researched submissions which were lodged with the Tribunal by an agent acting on the appellant's behalf. In his written submissions to the Tribunal the appellant made his East African Asians based claim but only supported it with general country information relating to the treatment of Shias and Hazaras in Afghanistan. When the Tribunal sought to explore the appellant's personal experiences of discrimination on the grounds of his religious belief and ethnicity he only referred to one specific incident in which the University professor had threatened to fail him but did not carry out that threat. His other responses were extremely general such as his mention of the feelings he experienced when going into a public market or a government department. In dealing with the appellant's claim under the Refugee Convention (in paragraph 64) the Tribunal did not accept that the appellant faced discrimination amounting to serious harm by reason of his religion and ethnicity upon his return to Afghanistan. 24 The appellant submitted that the Tribunal's references, in paragraph 72 of its reasons, to "degrading treatment or punishment" dealt only with the first integer of the complementary protection claim and wholly ignored the second. 25 The Tribunal was under an obligation, pursuant to s 430 of the Act, to provide reasons for its decision. A failure by the Tribunal to refer, in its reasons, to a particular integer of a claim may support the conclusion that the Tribunal has failed to have regard to that aspect of a claim: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346. See also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641. Such a failure does not, however, necessarily give rise to jurisdictional error. The issue may not, for example, be one that the Tribunal is bound to take into account. Another possibility, referred to in the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf (at 354) is that cases could occur "where the factual findings related to one asserted basis for protection necessarily and inevitably denied any other basis for protection." 26 Central to all of the appellant's claims (including the two integers of his complementary protection claim) was his fear of discrimination in Afghanistan because of his religion and ethnicity. 27 When dealing with the appellant's refugee claim the Tribunal found that he did not face discrimination amounting to serious harm for reasons of his religion and ethnicity: at [64]. Having considered the complementary protection claim the Tribunal concluded (at [72]) that the appellant would not face a real risk of being subjected to degrading treatment or punishment were he to return to Kabul. 28 Whilst it is true that the Tribunal did not expressly refer to both aspects of this claim there is, in my view, no basis for inferring that the second integer was ignored. Although the claim had been made, based on the East African Asians decision, the appellant's written submissions to the Tribunal did not refer to any particular experiences of the appellant which might bring him within the principles expounded in that case. As the written submissions acknowledged, not all discriminatory treatment is to be regarded as inherently degrading. The principle relied on was that "publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity", which may "therefore be capable of constituting degrading treatment." Clearly matters of fact and degree are involved in the assessment of conduct which is alleged to be degrading. This is reinforced by the definition of "degrading treatment or punishment" in s 5 of the Act. What is required is "an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable …" (Emphasis added). 29 When the Tribunal sought to explore this issue in the course of the oral hearing the appellant's responses (at [38]) fell well short of supporting either integer of his complementary protection claim. So much was fairly conceded in argument by counsel who appeared for him on the appeal. 30 The Tribunal made it plain (at [71]) that it had taken account of "the applicant's circumstances" when determining his complementary protection claim. Those are the circumstances outlined by him in his written submissions and during the oral hearing. Had the appellant provided the Tribunal with evidence which related exclusively to the second integer of his complementary protection claim and the Tribunal had failed to give separate treatment to that integer, the allegation of error, which he presently makes would have had stronger prospects of success. On the material before it, however, there was no occasion for the Tribunal, in its reasons, to distinguish between the two integers of the claim. The evidence, such as it was, was relevant to both claims and both integers of the complementary protection claim. 31 In my view a fair reading of the Tribunal's findings in paragraph 72, in the context of the reasons as a whole, disclose that the Tribunal was conscious of both aspects of the appellant's complementary protection claim and its rejection of that claim involved a rejection of both integers. 32 The primary judge was correct to so find. DISPOSITION 33 The appeal must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 26 August 2015