GLD18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 05 February 2020
• Neutral Citation: [2020] FCAFC 2
• Date: 05 February 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

GLD18 v Minister for Home Affairs [2020] FCAFC 2

Appeal from:	GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201 CAC19 v Minister for Home Affairs & Anor [2019] FCCA 3336
File numbers:	VID 835 of 2019VID 1276 of 2019
Judges:	ALLSOP CJ, MORTIMER AND SNADEN JJ
Date of judgment:	5 February 2020
Catchwords:	MIGRATION – appeals of decisions to refuse appellants protection visas under complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) – consideration of scope of s 36(2)(aa) and meaning of “significant harm” in s 36(2A) – whether Tribunal in each case erred in applying decision in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (SZRSN) – whether decision in SZRSN correct – whether Tribunal in each case misapplied decision in SZRSN to appellants’ individual circumstances ; MIGRATION – whether Tribunal in VID 835 of 2019 erred in concluding s 36(2A) “does not encompass harm arising from mental illness or harm” – whether Tribunal in VID 835 of 2019 erred in applying decisions in CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (CSV15) and CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 – whether decision in CSV15 correct ; MIGRATION – whether Tribunal in VID 1276 of 2019 erred in failing to “deal with” certain country information relevant to appellant’s protection claims
Legislation:	Migration Act 1958 (Cth) ss 5, 36(2)(aa), 36(2A), 36(2B), 351, 417 Migration Amendment (Complementary Protection) Act 2011 (Cth) Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Cases cited:	CAC19 v Minister for Home Affairs & Anor [2019] FCCA 3336 CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 CRI026 v Republic of Nauru [2018] HCA 19; 355 ALR 216 CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; 207 FCR 211 Minister for Immigration and Citizenship v SZQOT [2012] FCAFC 141; 206 FCR 145 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 MZAEN v Minister for Immigration and Border Protection [2016] FCCA 620; 306 FLR 76 Plaintiff M150/2013 v Minister for Immigration and Border Protection [2014] HCA 25; 255 CLR 199 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 SZRSN v Minister for Immigration and Anor [2013] FMCA 78 SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362
Date of hearing:	16 December 2019
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	107
Counsel for the Appellant in VID 835 of 2019:	Mr M L L Albert with Ms R Muchinguri
Solicitor for the Appellant in VID 835 of 2019:	Clothier Anderson Immigration Lawyers
Counsel for the Appellant in VID 1276 of 2019:	Mr M L L Albert
Solicitor for the Appellant in VID 1276 of 2019:	Victoria Legal Aid
Counsel for the First Respondent in each proceeding:	Mr C J Tran
Solicitor for the First Respondent in each proceeding:	Sparke Helmore Lawyers
Counsel for the Second Respondent in each proceeding:	The second respondent filed a submitting notice in each proceeding, save as to costs

ORDERS

		VID 835 of 2019
BETWEEN:	GLD18 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	ALLSOP CJ, MORTIMER AND SNADEN JJ
DATE OF ORDER:	5 February 2020

THE COURT ORDERS THAT:

1. The appellant be granted leave to rely on the amended notice of appeal filed on 3 December 2019.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

4. On or before 4 pm on 19 February 2020, the parties file any agreed minute of orders fixing a lump sum in relation to the first respondent’s costs.

5. In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

ORDERS

		VID 1276 of 2019
BETWEEN:	CAC19 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	ALLSOP CJ, MORTIMER AND SNADEN JJ
DATE OF ORDER:	5 february 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

3. On or before 4 pm on 19 February 2020, the parties file any agreed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4. In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

ALLSOP CJ AND MORTIMER J:

1. These two appeals, which were heard together, raise the same question about the nature and scope of the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth). The question is: can a person satisfy the criterion in s 36(2)(aa) if the harm she or he identifies arises because of separation from her or his family members, who – for one reason or another – will not in fact return with that person to her or his country of nationality?

2. In our opinion, that question should be answered in the negative. In each case, the Federal Circuit Court was correct to reject the appellants’ arguments on this matter. In each case, the Federal Circuit Court applied the decision of Mansfield J in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751. The appellants in these appeals also sought to challenge the correctness of that decision. That challenge should fail.

3. Each appellant also raised a ground of appeal which was particular to the Tribunal’s decision in his case. The individual ground of appeal in each appeal should also be rejected.

4. The appeal in GLD18 is from the Federal Circuit Court’s decision in GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201. The appeal in CAC19 is from the Federal Circuit Court’s decision in CAC19 v Minister for Home Affairs & Anor [2019] FCCA 3336. The general procedural and factual background to...