AWC21 v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 22 December 2022
• Neutral Citation: [2022] FCA 1568
• Date: 22 December 2022

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...