Federal Court of Australia AWC21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1568 Appeal from: AWC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 90 File number: VID 608 of 2021 Judgment of: HESPE J Date of judgment: 22 December 2022 Catchwords: MIGRATION – appeal from Federal Circuit and Family Court of Australia – where Administrative Appeals Tribunal (Tribunal) affirmed decision to refuse to grant Appellant a protection visa under complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (Act) – whether harm following removal from Australia would amount to "significant harm" under s 36(2A) of the Act – consideration of intentionality requirement for "cruel or inhuman treatment or punishment" as defined in s 5 of the Act Legislation: Migration Act 1958 (Cth) ss 5, 5H, 36, 65 Cases cited: Afu v Minister for Home Affairs [2018] FCA 1311 CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 EZC18 v Minister for Home Affairs [2019] FCA 2143 GLD18 v Minister for Home Affairs [2020] FCAFC 2 SZDCD v Minister for Immigration and Border Protection [2019] FCA 326 SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 39 Date of hearing: 30 November 2022 Counsel for the Appellant: Mr G Lake Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: The Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 608 of 2021 BETWEEN: AWC21 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: HESPE J DATE OF ORDER: 22 December 2022 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the First Respondent's costs, to be assessed on a lump sum basis, if not agreed. 3. The name of the First Respondent be amended to the "Minister for Immigration, Citizenship and Multicultural Affairs". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT HESPE J: 1 This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Circuit Court), dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of the Minister's delegate under s 65 of the Migration Act 1958 (Cth) (the Act) to refuse to grant the Appellant a Temporary Protection (Subclass 866) visa. BACKGROUND 2 The Appellant is a citizen of Italy and arrived in Australia with his family on 5 July 1990. In September 1994, the Appellant was granted a Transitional (Permanent) (Class BF) visa. 3 On 18 December 2014, the Appellant's Transitional visa was cancelled under s 501(3A) of the Act on the basis that the Appellant did not pass the character test. 4 On 14 September 2015, the Minister decided not to revoke the cancellation decision. The Appellant was unsuccessful in an application for judicial review and subsequent appeals against the cancellation decision. 5 On 27 June 2017, the Appellant applied for a protection visa on the basis that he satisfied the criteria set out in s 36 of the Act. 6 On 4 July 2017, a delegate of the Minister refused the application on the basis that the delegate was not satisfied that the Appellant was either a refugee for the purposes of s 36(2)(a) or was a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(aa). In particular, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to a receiving country (Italy), there was a real risk that the Appellant would suffer significant harm. 7 The delegate's decision to refuse the protection visa was affirmed by the Tribunal on 30 October 2017. On 12 December 2018, the Appellant successfully sought judicial review of the Tribunal's first decision in the Federal Circuit Court (as it then was) and the matter was remitted to the Tribunal for reconsideration. 8 The Tribunal's reasons record that, on remitter, the Appellant based his claims for protection on two grounds (Tribunal Reasons [49]). 9 The first ground was a claim that the Appellant was at risk of serious harm from a mafia organisation (Tribunal Reasons [50]). This claim was rejected by the Tribunal and not pursued on appeal (Tribunal Reasons [84]). 10 The second ground was based on the Appellant's mental health issues (Tribunal Reasons [51]). It was accepted by the Tribunal that the Appellant has several severe mental illnesses, including schizophrenia, anxiety and depression and had a history of substance abuse (Tribunal Reasons [85]). The Appellant was also found to have significant cognitive impairments of such a degree that he would be expected to need ongoing support and assistance with his daily activities including attending appointments, administering medication and paying bills. The Tribunal accepted that the Appellant may become easily overwhelmed and was at significant risk of reverting to alcohol abuse, gambling and criminal behaviour (Tribunal Reasons [86]). The Appellant submitted that his mental health issues, coupled with his inability to speak Italian and separation from his support network, put him at risk of serious harm or even death should he be returned to Italy (Tribunal Reasons [112]⁠–[115]). 11 On 4 March 2021, The Tribunal affirmed the delegate's decision. The Tribunal concluded that the risk of harm on which the Appellant relied did not constitute significant harm for the purposes of s 36(2)(aa), based on the definition of significant harm in s 36(2A) (Tribunal Reasons [123]). The risk of harm to which the Appellant was exposed was not a risk of harm suffered because of the acts of other persons (Tribunal Reasons [115]). Nor did the Appellant satisfy the definition of a "refugee" in s 5H of the Act because the Appellant did not have a well-founded fear of persecution as defined in s 5H(1)(a) and 5J of the Act (Tribunal Reasons [106]). 12 On 6 April 2021, the Appellant sought judicial review of the Tribunal's decision in the Circuit Court. The Appellant was unrepresented before the Circuit Court and relied on three grounds of judicial review, only one of which is relevant to the present appeal to this Court, namely (errors in original): The AAT member failed to consider the [Appellant] would be left in a extremely disadvantaged as he would not have the support of family,does not speak Italian and be left alone to deal with his mental health issues. 13 The primary judge dismissed this ground of appeal, stating (at PJ [25]–[26]): 25 This ground appears to raise a complaint that the tribunal member failed to consider a basis for the visa that appeared on the evidence. However, it is apparent that the tribunal made findings with respect to the needs of the [Appellant], particularly at paragraphs 44 and 86, and the difficulties for him in obtaining treatment in Italy, given that he does not speak Italian and would not have assistance from family there (see paragraph 88). The tribunal made a finding that these difficulties would not be persecution within the meaning of the legislation as they would not involve any systemic or discriminatory conduct (see paragraph 98). Ultimately, the tribunal was not persuaded that this would amount to significant harm, as set out in paragraphs 112 to 119, having regard to the specific definitions of significant harm in section 36(2A) … 26 Even if the harm were categorised as significant harm that fell within the definition in [s 36(2A)] of the Act, it would not be at the hands of a person intentionally causing that harm and, therefore, outside the terms of the provision. As Besanko J said in EZC18 v The Minister [2019] FCA 2143: [47] … 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. LEGISLATIVE CONTEXT 14 Section 36(2) of the Act relevantly provides: (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[.] 15 Section 36(2A) provides (emphasis in original): 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. 16 "Cruel or inhuman treatment or punishment" is defined in s 5 of the Act in the following terms (emphasis in original): cruel or inhuman treatment or punishment means an act or omission by which: (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature; but does not include an act or omission: (c) that is not inconsistent with Article 7 of the [International Covenant on Civil and Political Rights (ICCPR)]; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the [ICCPR]. GROUNDS OF APPEAL 17 The Appellant's appeal related to the application of s 36(2)(aa) of the Act. By his supplementary notice of appeal, the Appellant appeals from the decision of the primary judge on the following two grounds: (1) The primary judge erred in finding that the harm that will be suffered by the Appellant following his removal from Australia would not amount to "significant harm", having regard to the definition of "significant harm" in s 36(2A) of the Act. (2) The primary judge erred in finding that the intentionality requirement contained in the definition of "cruel or inhuman treatment or punishment" in s 5 of the Act would not be met even if the harm that will be suffered by the Appellant following his removal from Australia is otherwise categorised as "significant harm". 18 It may be observed at the outset that there are difficulties with the manner in which the grounds of appeal have been drafted, in that they fail to accurately recognise the role of the primary judge on judicial review and of this Court on appeal. It was not part of the primary judge's role to make findings about whether the Appellant would face significant harm if removed from Australia. The role of the primary judge was to consider whether the Tribunal had fallen into jurisdictional error in the process of concluding that the Appellant would not face significant harm if removed from Australia to Italy. The "finding" the subject of the appeal to this Court is the correctness of the primary judge's conclusion that the Tribunal had not fallen into jurisdictional error. 19 For the purposes of this appeal, I have construed the Appellant's grounds of appeal as: (1) A claim that the primary judge erred in failing to conclude that the Tribunal fell into jurisdictional error in finding that the harm that will be suffered by the Appellant following his removal from Australia would not amount to "significant harm", having regard to the definition of "significant harm" in s 36(2A) of the Act. (2) A claim that the primary judge erred in failing to conclude that the Tribunal fell into jurisdictional error in finding that the intentionality requirement contained in the definition of "cruel or inhuman treatment or punishment" in s 5 of the of the Act would not be met even if the harm that will be suffered by the Appellant following his removal from Australia is otherwise categorised as "significant harm". APPELLANT'S SUBMISSIONS 20 In relation to the first ground of appeal, on behalf of the Appellant, it was submitted that the Tribunal had incorrectly construed the phrase "significant harm" and thereby (inferentially) misconstrued its statutory task. It was apparent from the Tribunal's factual findings that it was both foreseeable and unavoidable that the Appellant's removal from Australia will cause harm as a direct result of: (a) his removal from Australia and from his family, his friends and his essential mental health supports; and (b) the Appellant being removed to a foreign country where he cannot speak the language, where he will struggle to access any social or health supports, and in circumstances where his presently stabilised mental health will be placed in peril. 21 The Appellant accepted that his submissions were at odds with the decisions of this Court in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (Mansfield J) and the Full Court in GLD18 v Minister for Home Affairs [2020] FCAFC 2 (Allsop CJ, Mortimer and Snaden JJ), but submitted that the circumstances of this appeal are distinguishable, including because: (a) the Appellant faces removal to a country where he cannot speak the language, whereas SZRSN [2013] FCA 751 and GLD18 [2020] FCAFC 2 involved English-speakers being removed to English-speaking countries, or where the appellants were removed to countries where they could speak the language of the receiving country; (b) the Appellant has no connection to Italy, whereas SZRSN [2013] FCA 751 and GLD18 [2020] FCAFC 2 involved appellants that had connections to their receiving countries and, unlike the Appellant, had prospects of employment; (c) those cases involved the harm arising from the separation of a person from his or her family members whereas that is just one of several harms faced by the Appellant (the others being impacts on his currently-stabilised mental health, isolation in a non-English speaking foreign country, the severely limited circumstances available to support himself and dislocation from essential mental health supports); and (d) those cases did not involve factual findings, as exist here, that there is a significant risk of alcohol abuse, gambling and criminal behaviour arising from removal, and which would be self-inflicted forms of pain or suffering that would meet the intentionality requirement that is part of the s 5 definition of "cruel or inhuman treatment or punishment". 22 In relation to the second ground of appeal, the Appellant submitted that the definition of "cruel or inhuman treatment or punishment" in s 5 of the Act did not require a third party perpetrator to intentionally cause the harm. It was sufficient that the harm be intentionally self-inflicted. 23 It was submitted that the dislocation that the Appellant will face following removal to Italy, on account of the language barrier and his lack of connection to that country, entails a real risk of severe pain or suffering due to: (a) the Appellant's mental illness; (b) the likely deterioration of his mental health; and (c) intentional actions which could foreseeably follow this deterioration, such as the "significant risk" he would revert to alcohol abuse, gambling and criminal behaviour. It was submitted that such reversions: (i) would involve "pain or suffering, whether physical or mental"; and (ii) would be intentionally inflicted (by the Appellant). DISPOSITION 24 The Appellant's submissions raise two related issues in relation to the construction of the phrase "significant harm": (1) first, whether the phrase encompasses harm to be suffered by the Appellant that results from the act of removal as opposed to acts, conditions or circumstances existing in the receiving country; and (2) second, whether the harm must be intentionally inflicted by, or result from, acts intentionally inflicted by others. 25 The Appellant did not directly address the first issue but focussed his submissions on whether the definition of "significant harm" required a third party perpetrator or whether the phrase could encompass self-inflicted harm. The Appellant's submissions in this respect followed the approach of the Tribunal to the issue of significant harm. 26 Both of the above construction issues were resolved in a manner contrary to the Appellant by a Full Court of this Court in GLD18 [2020] FCAFC 2. All three justices concurred in relation to the resolution of the first issue. As the majority stated in relation to the concept of "significant harm" as part of the protection visa criterion in s 36(2)(aa): "[a]t both a textual and a purposive level, the concept is concerned with acts or omissions occurring in the relevant 'receiving country' and which result in the visa applicant being treated in a particular way": at [37; see also Snaden J at [94]. 27 The purpose of a protection visa is not to protect the visa applicant from the act of removal. Again, as the majority stated in GLD18 [2020] FCAFC 2 at [38]–[41] (emphasis in original): [38] [T]he removal of a visa applicant from Australia cannot itself be the significant harm; nor can removal be the act against which a visa applicant is to be protected. As [Mansfield J] said [in SZRSN [2013] FCA 751], if the obligation exists, it is to protect non-citizens from harm faced in the receiving country, and being removed from one's children (who remain in Australia, or a country other than the receiving country) cannot be characterised as a harm faced in the receiving country. [39] To put it the other way around, harm suffered by a visa applicant because, in a causative sense, she or he cannot remain in Australia is not harm within the purview of s 36(2)(aa). Subject to qualifications of the kind to which we refer in [41] below, and noting the relevant conditions imposed by the particular language of s 36(2)(aa), a protection visa is granted in order to fulfil Australia's protection obligations under the [ICCPR] and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, by reason of the apprehended treatment of individuals in the countries to which they are to be removed. The focus of the decision-making exercise is generally on what will happen to those individuals in the receiving country, by reason of the conduct of actors or perpetrators in that country, or by reason of the circumstances prevailing in that country, for which some actors or perpetrators can be attributed responsibility. … [41] The one qualification that might clearly arise in terms of a proposition that s 36(2)(aa) exclusively contemplates that significant harm may be inflicted in the receiving country is the circumstance of rendition. 28 The Appellant accepted that the harm he would suffer arises by reason of removal from Australia rather than from circumstances relating to how he will be treated in Italy. The forms of harm on which he relies arise because of the Appellant's inability to remain in Australia. 29 Having regard to the decision in GLD18 [2020] FCAFC 2, it cannot be said that the Tribunal fell into jurisdictional error in concluding that the harm to be suffered by the Appellant upon removal from Australia was not "significant harm" as defined in s 36(2A) of the Act. Based on the text of s 36(2)(aa) (and in particular its reference to "being removed from Australia to a receiving country") and its legislative history (as summarised in SZRSN [2013] FCA 751, quoted by the majority in GLD18 [2020] FCAFC 2 at [35]), harm which arises from the act of removal, including by reason of separation from family and other support available in Australia, is not "significant harm" for the purposes of s 36(2)(aa). It is not harm which arises by reason of acts, conduct or circumstances towards the appellant occurring in the receiving country. Harm which arises by reason of being removed from Australia is not harm faced in the receiving country by reason of acts or omissions occurring in that receiving country or circumstances prevailing in the receiving country: GLD18 [2020] FCAFC 2 at [56], [58] (Allsop CJ and Mortimer J). 30 In relation to the second issue, as the Appellant accepted, the majority of the Court in GLD18 [2020] FCAFC 2 was against him, but the Appellant urged me to adopt the separate reasons of Snaden J. The majority in GLD18 [2020] FCAFC 2 observed that "each category of harm [in s 36(2A) and as further defined in s 5] looks to the conduct of an actor or perpetrator, and identifies the visa applicant as the subject of the conduct of that actor or perpetrator" (at [31]). The majority observed that "[t]he language in sub‐ss 36(2A)(a) and (b) and in the definitions of the concepts in sub‑ss 36(2A)(c)–(e) all concern, and only concern, how a visa applicant might be treated by another person" (at [37]). 31 The majority made the following textual points (at [49]): [T]he textual focus is on what will happen to a person in (or en route to) the receiving country. Several other textual points might be made: (a) the definition of "significant harm", as we have explained above, has a textual focus on others engaging in conduct towards the visa applicant (whether as an individual or as a member of a group or community); (b) the element of "intention" in the definitions of "cruel or inhuman treatment or punishment", "torture" and "degrading treatment or punishment" again focuses attention on the state of mind of a perpetrator or actor; and (c) the three categories set out in s 36(2B), identifying exceptions to the s 36(2)(aa) criterion applying to an individual, all have as their premise acts or omissions occurring in the receiving country, or circumstances prevailing in the receiving country which are likely to affect individuals who are returned there. 32 In separate reasons, Snaden J made the following observations (at [103]–[105]): [103] With respect to those who think otherwise, I would be slow to conclude that "significant harm" extends no further, conceptually, than to harm that a visa applicant might endure at the hands of others. It might well be that an applicant could, for want of adequate mental health, subject him or herself to the sort of harm upon which complementary protection is premised. If, for example, there was a basis for thinking that a visa applicant, upon (and because of) his or her removal from Australia, would be inclined to self-harm, and that that inclination might extend to or beyond the standard of "cruel or inhuman treatment or punishment" (perhaps because it involved the intentional self-infliction of severe pain), there is no obvious reason why that might not qualify as a risk of the kind to which s 36(2)(aa) of the Act is directed. [104] That is not, though, an analysis upon which it is here necessary to embark. Although the appellant sought to make much of the impact that his removal from Australia would likely visit upon his mental health, there was nothing in the evidence to suggest—and no submission was advanced before the Tribunal—that any such mental health impact would include the prospect of self-harm, let alone self-harm sufficient to visit "severe pain or suffering" (or to otherwise constitute "cruel or inhuman treatment or punishment"). There was nothing before the Tribunal that suggested that the appellant might harm himself if removed from Australia, nor that he had done so during past periods of poor mental health … [105] … The core of the appellant's case was that his removal from Australia would devastate him and that that devastation would sound in severe mental pain or suffering of the sort contemplated by the legislative definition of "cruel or inhuman treatment or punishment". As Mansfield J held in [SZRSN [2013] FCA 751], harm in that form cannot amount to "significant harm" for the purposes of s 36(2)(aa) of the Act because it is not the product of an act or omission to which an applicant might be subjected upon removal from Australia. That being the case, even assuming that the Tribunal's reasoning … involved some misunderstanding of the legislative scheme—as, to be clear, I think that it might have—any error on its part was immaterial to the end result. 33 Contrary to the submissions of the Appellant, I do not accept that the circumstances in GLD18 [2020] FCAFC 2 are relevantly distinguishable. The principles expressed in that case were not restricted to the circumstances of the particular appellant. The factual differences identified by the Appellant do not impact the applicability of the principles in GLD18 [2020] FCAFC 2. 34 The approach of the majority in GLD18 [2020] FCAFC 2 is consistent with a number of earlier decisions: see, eg, EZC18 v Minister for Home Affairs [2019] FCA 2143 at [47] (Besanko J); CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 at [34] (Collier J); CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 at [67] (Reeves J); SZDCD v Minister for Immigration and Border Protection [2019] FCA 326 at [43] (Gleeson J). It is also consistent with recognition by this Court that a lack of available medical treatment does not constitute the intentional infliction of harm: Afu v Minister for Home Affairs [2018] FCA 1311 at [61]–[62] (Bromwich J), though noting that, in the present case, it was found by the Tribunal (at [109]) that appropriate medical treatment was available to the Appellant in Italy. 35 Even if not binding upon me, I would not be satisfied that I should depart from GLD18 [2020] FCAFC 2 on the basis that it is clearly wrong. I note in particular the following statement by the majority (at [90]) in relation to self-harm arising from mental harm inflicted by others: It can be accepted that there may be circumstances where a visa applicant claims she or he will be subjected to cruel or inhuman treatment or punishment through the intentional infliction of mental harm in a receiving country. The intentional imposition of a relentless regime of solitary confinement comes to mind as one possible example. It can be accepted that the infliction of such mental harm may cause a person to engage in self-harm. However, it is the subjection of the person to mental harm by way of solitary confinement which engages the protection afforded by s 36(2)(aa), read with s 36(2A) and the definitions in s 5(1). The real risk of self-harm may render the infliction of pain and suffering more severe, but in this example, it is the infliction of the mental harm which is critical to the satisfaction of the visa criterion in s 36(2)(aa). 36 It is noted, for completeness, that given that all judges in GLD18 [2020] FCAFC 2 accepted that "significant harm" had to result from acts or omissions in respect of the Appellant occurring in the receiving country, the unfortunate impact that removal from Australia may well have on the mental health of the Appellant and consequential reversion to alcohol abuse, gambling and criminal behaviour is not the type of risk of harm which is capable of constituting "a real risk that the non-citizen will suffer significant harm" for the purposes of s 36(2)(aa). 37 There was no jurisdictional error on the part of the Tribunal in concluding that the risk of the type of self-inflicted harm upon which the Appellant relied was not a risk of significant harm for the purposes of s 36(2A) and did not constitute "cruel or inhuman treatment or punishment" as defined in s 5 of the Act. CONCLUSION 38 The Appellant's appeal must be dismissed. The First Respondent is entitled to costs, to be assessed on a lump sum basis, if not agreed. 39 As the primary judge noted, the Appellant's prospects if returned to Italy are bleak, given his mental illness, lack of Italian language skills and reversion to alcohol abuse if not appropriately medicated. I reiterate the observation of the primary judge that it remains open to the Appellant to make a request for the exercise of the general ministerial discretion under s 351 or s 417 of the Act. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe. Associate: Dated: 22 December 2022