BWV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Appeal to this Court 10 By Notice of Appeal dated 12 August 2020, the Appellant appealed from the decision of the primary judge. At the hearing on 22 June 2021, I granted the Appellant leave to amend the Notice of Appeal on the basis that the Minister did not oppose that course. 11 The amended Notice of Appeal contained only one ground of appeal (the new ground of appeal), which was a ground of appeal not raised before the primary judge. By that ground of appeal, the Appellant contended as follows: 1. The Second Respondent (Authority) made a jurisdictional error by failing to adequately consider whether the Appellant met the criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (Act) for the grant of a protection visa. Particulars a. The Authority accepted that there was a real risk of the Appellant suffering harm in the form of discrimination, restrictions, limitations, stigma, warnings and harassment (Decision Record (DR) [63]). b. The Authority found that the said harm did not amount to significant harm, individually or in totality, as it did not meet the threshold of cruel treatment or degrading treatment (DR [63]). c. The Authority's said finding was based on its failure to consider or inadequate consideration of the Appellant's claim to have experienced mental pain or suffering in the past due to the said harm. i. The meaning of cruel treatment or degrading treatment in the statutory context; and ii. The reasons why the said harm did or did not meet either of those thresholds. d. By giving inadequate consideration to those matters, the Authority failed to complete its statutory task (the error). e. Had the Authority not made the error, it could realistically have concluded that the Appellant met the criterion under s.36(2)(aa) of the Act for the grant of a protection visa.

Leave to raise a new ground of appeal 12 The first issue for determination is whether I should give the Appellant leave to rely upon a new ground of appeal not advanced in the Court below. In BZA16 v Minister for Immigration and Border Protection (No 2) [2019] FCA 60 at [20], Allsop CJ said: … Generally, unless there are exceptional circumstances, or a new ground clearly has merit, or there will be no real prejudice to the respondent in allowing agitation of the new ground, the Court will not grant leave for the new ground to be pleaded… 13 The principles to be considered in determining whether leave should be given to raise a new ground of appeal were summarised by Charlesworth J in AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 at [17]-[23]: Leave to raise arguments not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310. The discretion is to be exercised having regard to the legal context in which the application is made. The present legal context is one in which this Court does not have original jurisdiction to judicially review the Tribunal's decision. That jurisdiction is vested in the FCC by s 476 of the Act. This Court's appellate jurisdiction is conferred for the purpose of correcting legal, factual or discretionary error affecting judgments from which an appeal to the Court lies; Federal Court of Australia Act 1976 (Cth) (FCA Act), s 24; MZYTT v Minister for Immigration and Citizenship (2013) 141 ALD 301 at [20]; Zaburoni v Minister for Immigration and Border Protection [2017] FCAFC 205 at [52]. Applications such as that made in the appellant's case have the effect of calling upon this Court, in its appellate jurisdiction, to judicially review an administrative decision it would otherwise have no original jurisdiction to review. In Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 the High Court said (at ALR 71): It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. See also Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543. The phrase "exceptional circumstances" indicates that there remains a discretion in this Court to allow the introduction of the new grounds if it be "expedient in the interests of justice" to do so: Gomez at [18] (Hill, O'Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). In VUAX the Full Court noted that the practice of raising arguments for the first time before the Full Court of this Court had become prevalent in appeals relating to migration matters. The Court continued (at [48]): … The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. See also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [82] (Gilmour and Mortimer JJ), [106] (Logan J). In that case, Logan J said: 105 The additional ground sought to be raised does not raise any issue of pervasive public importance but rather whether, in the particular circumstances of the case before the Tribunal, there was a denial of procedural fairness. The place for the determination of any such jurisdictional error issue is, in all but the most exceptional cases, in the original jurisdiction of the Federal Circuit Court, not in this Court. The 'public interest in the fairness and expedition of the administration of justice' referred to in Coulton v Holcombe at 11, is abroad in this case, too. … 108 Another consideration which looms large in modern times in relation to the allowing of on [sic] appeal of the amendment of ground of appeal so as to raise a point not taken below is the sheer volume of cases arising under the Migration Act 1958 (Cth) (Migration Act). The resources which this Court can devote to the exercise of its appellate jurisdiction are finite. That appellate jurisdiction is exercisable as never before in respect of a great breadth of original Federal jurisdictions. To allow too readily in cases arising under the Migration Act the raising of points not taken in the original jurisdiction is fraught with the risk of encouraging the overwhelming of the efficient allocation of judicial resources to the timely disposal of other appeals in fields of appellate jurisdiction. The concerns there expressed by his Honour reflect the same policy considerations underlying s 37M of the FCA Act. Relevantly, s 37M(3) provides that a procedural power such as that to be exercised in the present case must be exercised in the way that best promotes the overarching purpose identified in s 37M(1) and (2): 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 14 The Appellant submitted that leave should be granted for the following reasons: (1) the proposed ground has merit and that alone is enough to grant leave: see, eg, EAT17 v Minister for Home Affairs [2021] FCA 68 at [18] (McKerracher J); (2) there would be significant prejudice to the Appellant if leave is not granted; (3) the Appellant has changed representation since the hearing before the primary judge; (4) there is no prejudice to the Minister other than costs; and (5) there has been no waste of Court resources occasioned by an adjournment. 15 The Minister opposed leave being granted on the basis that there was no evidence as to why the new ground of appeal was not raised before the primary judge, particularly considering that the Appellant was represented by both a solicitor and counsel at the hearing and had already raised six grounds for the primary judge's consideration. 16 At the hearing, I proceeded on the basis that I would determine the application for leave to raise a new ground of appeal in the course of determining the substantive appeal.

The new ground of appeal 17 The new (and only) ground of appeal alleges that the Authority made a jurisdictional error by failing to adequately consider whether the Appellant met the complementary protection criterion in s 36(2)(aa) of the Act. In particular, the Appellant alleged that the Authority failed to consider the claim that the Appellant had experienced mental pain or suffering in the past as a result of the discrimination, restrictions, limitations, stigma, warnings and harassment she had experienced. 18 The relevant section for the Authority to consider in determining whether or not the Appellant should be granted a protection visa was s 36(2)(aa) of the Act. Section 36(2)(aa) provides that: 36 Protection visas - criteria provided for by this Act (1A) An applicant for a protection visa must satisfy: (a) both of the criteria in subsections (1B) and (1C); and (b) at least one of the criteria in subsection (2). … (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; 19 Pursuant to s 36(2A) of the Act, 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. 20 Particularly relevant to this appeal are sub-sections (d) and (e), both of which are defined in the s 5(1) of the Act as follows: 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 Covenant; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. … degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission: (a) that is not inconsistent with Article 7 of the Covenant; or (b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 21 It is within this context that I now turn to consider the parties' respective submissions in relation to the new ground of appeal raised.

Appellant's Submissions 22 The Appellant submitted that the Authority erred in its assessment that there was no real risk that the Appellant would suffer significant harm if returned to Iran. The Appellant's submission arises in the context of her claim that she had suffered harm in the form of discrimination, restrictions, limitations, stigma, warnings and harassment in the past and her mental health had suffered as a result of this harm. 23 The Appellant submitted that these matters were raised with the Minister in her arrival interview on multiple occasions. For example, when asked why she left Iran, the Appellant explained: I had lots of difficulties. My mental situation was so bad that I refused to leave my place for 3-4 months. … After [my dog was taken away and killed] I was completely depressed…. 24 Similarly, when asked why she could not return to Iran, the Appellant added: I'm not in a position to go back to Iran, not mentally and not my beliefs. The culture I have experienced In that country, its not what I agree with. With so many incidences and my depression, i was already dead. 25 The Appellant submitted that the Authority was clearly aware of these remarks, as it made reference to the arrival interview as well as the Appellants "mental problems" at [35] of its Reasons. Despite this, the Authority failed to consider the Appellant's claims regarding her mental health and showed no sign of active intellectual engagement with these claims when it concluded that the Appellant's harm did not meet the threshold prescribed by the Act: see, eg, Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [39]-[41] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). 26 By failing to consider, in the relevant legal sense, the Appellant's claims that her mental health had suffered, the Appellant submitted that the Authority erred in its assessment of whether there was a real risk she would suffer cruel or inhumane treatment. Further, the Appellant contended that had the Authority engaged with these claims, it may have arrived at a different conclusion as to whether the Appellant satisfied the criterion under s 36(2)(aa) of the Act, such that the error was material: see, eg, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ), endorsing the principles in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 445 [45]‑[50] (Bell, Gageler and Keane JJ).

Minister's Submissions 27 In response, the Minister put forward four propositions as to why the appeal should be dismissed. 28 First, the Minister submitted that the Authority clearly understood, and took into account, the relevant definitions of significant harm, including cruel and inhuman treatment or punishment and degrading treatment or punishment, as required by the Act. The Authority accepted there was a real chance the Appellant would suffer discrimination, restrictions, limitations, stigma, warning and harassment, but nevertheless proceeded to find that would not amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment. 29 The Minister submitted that this reasoning showed a genuine and active engagement with the relevant definitions. Accordingly, there is no basis for inferring that the Authority failed to adequately consider the mental pain and suffering component of the definition when assessing whether the Appellant satisfied the criterion in s 36(2)(aa) of the Act. 30 Second, the Minister contended that the Appellant did not raise any mental health claims in the statutory declaration made on 4 April 2016 or at her protection visa interview. Nor did the Appellant choose to include any information in relation to her mental health in the new information provided to the Authority in November 2016. The only assertions to mental health claims were those advanced by the Appellant at her arrival interview. Given that context, the Authority was not required to expressly consider these claims, particularly where there was a lack of specificity regarding the nature or reason for her mental health difficulties, or how her mental health was connected to the harm she suffered. 31 Third, the Minister submitted that while past events can be a guide to the future, the complementary protection assessment is necessarily a forward looking assessment: MZAAD v Minister for Immigration and Border Protection [2015] FCA 1031 at [41] (Beach J); BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; 283 FCR 97 at [86] (Allsop CJ, Moshinsky and O'Callaghan JJ). Accordingly, the Minister contended that the allegation in particular (c) of the amended Notice of Appeal -that the Authority failed to consider whether the Appellant experienced mental pain and suffering in the past - does not give rise to jurisdictional error. 32 Fourth, the Minister submitted that there was no nexus between, on the one hand, the harm that the Authority accepted the Appellant had suffered and may suffer if returned to Iran, and, on the other hand, the Appellant's "mere assertion" of mental health issues at her arrival interview in February 2013. Further, even if there was such a nexus, the Minister submitted that there was no evidence to suggest that the Appellant's mental health would be affected if she returned to Iran.

Consideration 33 In substance, the Appellant's submission is that the Authority's reasoning process was flawed because it failed to adequately consider the Appellant's claim about her mental health in assessing whether she satisfied the complementary protection criteria in the Act. In particular, criticism was directed at [63] of the Authority's Reasons, extracted in full below: I have accepted there is a real chance of the applicant suffering discrimination, restrictions, limitations, stigma, warnings and harassment as a result of her gender, her behaviour and appearance, if she were to live alone, and when applying for employment, including if she did not declare Islam as her religion. However, as I have set out above, I am not satisfied that there is a real chance of the applicant suffering discrimination or difficulty in employment to an extent that threatens her capacity to subsist. Similarly, I find that given her range of skills and experience, there is not a real risk that she will experience discrimination in employment to an extent that amounts to severe pain or suffering, pain or suffering that is cruel or inhuman in nature, or extreme humiliation which is unreasonable, as is required by the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. I am similarly not satisfied that the discrimination, limitations, restrictions, warnings, harassment and stigma I have accepted the applicant may otherwise experience reaches that level of pain, suffering or humiliation, considering this harm both individually and in totality. Nor is there a real risk that she will be arbitrarily deprived of her life or that the death penalty will be carried out. 34 It has been repeatedly observed that if a statute requires a decision-maker to consider a matter, the decision-maker must give the matter proper, genuine and realistic consideration; that is, they must engage in an 'active intellectual process' directed at the matter: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ). 35 This does not require the decision-maker to refer to every piece of evidence and every contention put by the Appellant: Carrascalao at [45]. However, the failure to refer to a critical piece of evidence or a particular issue might support an inference that the decision-maker did not consider a particular issue and therefore did not actively engage with the matter: Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [36] (Reeves, O'Callaghan and Thawley JJ). 36 The proper approach to determining whether there has been an active intellectual process was summarised in Singh at [37]: In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant: (1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed. (2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement: (a) the reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]; (b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and (c) a conclusion that the decision-maker has not engaged in an active intellectual process "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48]. 37 That summary of principles has been repeatedly endorsed in subsequent decisions: see, eg, Meyrick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 209 at [20] (Charlesworth, SC Derrington and Stewart JJ); XFCS v Minister for Home Affairs [2020] FCAFC 140 at [36] (Moshinsky, Derrington and Colvin JJ); SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 944 at [31] (Colvin J); CMA19 v Minister for Home Affairs [2020] FCA 736 at [157] (Murphy J); and LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591; 167 ALD 17 at [41] (Jackson J). 38 There is nothing in the Authority's Reasons to suggest that it did not properly understand the definitions or test it was required to consider under the Act, including that mental harm could be a relevant consideration in making its assessment. Further, the Authority was not required to specifically address the Appellant's mental health claims in its Reasons, given the generalised manner in which the claim was raised, and the failure to do so does not give rise to error. 39 As the Full Court of this Court explained in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47] (French, Sackville and Hely JJ): The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. 40 The Authority clearly stated at the end of [63] that while it accepted that there was a real chance that the Appellant would suffer the kind of harm described, that this was not sufficient to amount to "severe pain or suffering, pain or suffering that is cruel or inhuman in nature, or extreme humiliation which is unreasonable, as is required by the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment". In that passage, there is active and genuine engagement by the Authority with the relevant definitions in the Act and I am satisfied that the Tribunal intended for "harm" to incorporate both physical and mental harm. This is sufficient to negate the inference that the Authority failed to consider the matters alleged by the Appellant. 41 Further, the connection is opaque as between the events that caused the Appellant harm in Iran, and that the Authority considered the Appellant may face if returned to Iran, and her mental health. I agree with the Minister's submission that the Appellant did not explain the nature or reason for her mental health difficulties or their association with risks the Appellant may face if returned to Iraq such as to require further analysis by the Authority. It is also significant that the Appellant failed to make any express reference to her mental health or provide any evidence to support these claims in either of her statutory declarations, her protection visa application or her submissions to the Authority. 42 As to whether the test for determining if a person will face a real risk of significant harm is retrospective or forward-looking, I respectfully adopt the reasoning of Allsop CJ, Moshinsky and O'Callaghan JJ in BVT20 at [86]: Having regard to the text, legislative history and context, as discussed above, we consider the preferable construction to be that an act or omission that is wholly in the past is not capable of engaging the complementary protection criterion in the Migration Act. Notwithstanding the use of the present tense in the definition of "cruel or inhuman treatment or punishment", the overall tenor of the provisions is that they are forward-looking. That feature strongly suggests that the provisions are concerned only with an act or omission that takes place (or continues to take place) in the future. The legislative history, as discussed above, does not suggest otherwise. Thus, we consider this to be the better construction having regard to the text of the relevant provisions and the legislative history. This is not to say that a past act or omission may not be relevant in assessing whether there is a real risk that the visa applicant will be subjected to an act or omission constituting cruel or inhuman treatment or punishment in the future. Nor is it to say that an act or omission in the future may not represent a continuing act or omission that started in the past. However, we consider that there needs to be an act or omission in the future to engage s 36(2)(aa), read with s 36(2A)(d) and the definition of "cruel or inhuman treatment or punishment" in s 5(1) of the Migration Act. [Emphasis added] 43 While past suffering can be relevant to this assessment, as I have discussed above, the Appellant has not established a sufficient nexus between her mental health claims advanced in the arrival interview and the harm the Appellant has suffered and may suffer in the future. 44 Bearing in mind that a determination that the Authority failed to engage in active intellectual process will not lightly be made, and must be supported by clear evidence, I am not persuaded by the Appellant's submissions. To the extent that the Appellant's mental health was impliedly raised in her application, there is sufficient engagement with these matters in the Authority's Reasons to be satisfied that those matters were considered such that there is no error in its reasoning.

Disposition 45 For the above reasons, the proposed ground of appeal has no merit. Accordingly, leave to raise a new ground of appeal is refused and the appeal is otherwise dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.