EXW18 v Minister for Home Affairs

Appellant's submissions 22 The Appellant acknowledged that leave to raise a ground on appeal not raised before the primary judge should be allowed only if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]. 23 The Appellant read an affidavit which sought to explain the reasons for seeking leave. In short, the Appellant's explanation for his application to amend the grounds of appeal was due to his lack of English language skills and his lack of financial means to retain representation before the Circuit Court. 24 The Appellant submitted that the proposed amended grounds have merit and their practical effect is to confine the issues in the appeal. He relied on Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 at [20] in support of his submission that leave should be granted, noting that the three new grounds ultimately turn on a single factual issue and raise issues of construction and the correct test to be applied under ss 36(2)(aa) of the Act. The Full Court observed in Murad that "generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy". The Appellant also submitted there was no prejudice to the Minister that could not be met with appropriate cost orders. 25 I turn now to the new grounds of appeal. 26 The Appellant addressed the three grounds together, as they address the same issue, namely whether extortion rises to the level of "significant harm" within the meaning of the complementary protection criterion in ss 36(2)(aa) of the Act. 27 The Appellant's challenge to the Authority's reasons was centred upon the following paragraph: [34] I do accept that the applicant would face a low but nevertheless real risk of being targeted for extortion by the MQM on the basis of his Pashtun ethnicity if he decides to open a business again in Hyderabad. I am not satisfied that any harm the applicant may face as a Pashtun businessman in Hyderabad would amount to significant harm as defined. I am not satisfied that it amounts to the death penalty, arbitrary deprivation of life or torture. I am also not satisfied that it amounts to pain or suffering that is cruel or inhuman in nature, severe pain or suffering, or extreme humiliation for the purposes of the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk he will suffer significant harm. (emphasis added) 28 The Authority's finding that the Appellant would face a low but nevertheless real risk of extortion by the MQM, on the basis of his Pashtun ethnicity, if he decides to open a business again in Hyderabad is thus based on two contingencies: first, that the Appellant would return to Hyderabad, and second, that the Appellant would restart his business activities. 29 The Appellant responded to the Authority's reasoning on the following basis. The predicate of the Authority's reasoning was that the Appellant would return to Hyderabad. That being so, the finding in [34] was not contingent on the first premise referred to above. The Appellant also submitted that it was a further predicate of the Authority's reasoning that he would re-commence business activities. In this regard, the Appellant pointed to the absence of any finding that the Appellant would not open a business if he returned to Pakistan. 30 The Appellant submitted that the Authority erred in determining that extortion is insufficient to rise to the level of "significant harm" within the meaning of s 36(2A) of the Act. Several of the operative nouns contained in this subsection are themselves defined in s 5 of the Act. For example, "degrading treatment" is defined as: 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. 31 "Cruel or inhuman treatment" is defined as: 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. 32 The Appellant's written submissions relied on definitions of "torture" and "cruel, inhuman and degrading treatment or punishment" found in articles 1 and 16 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and referred to international jurisprudence addressing what constitutes cruel, inhuman or degrading treatment. These were not referred to in oral submissions. 33 The Appellant's written submissions also drew attention to the offences of "extortion", found in s 415 of the Criminal Code Act 1899 (Qld) and of "demanding property with intent to steal", found in s 99 of the Crimes Act 1900 (NSW). The Appellant contended that extortion rises to the level of "significant harm" within the meaning of ss 36(2)(aa) as the type of harm accepted by the Authority, being threats made by a criminal syndicate with the means of engaging in real, racially-motivated violence, would amount to a serious offence in domestic Australian law. Again, this was not referred to in oral submissions. 34 The Appellant submitted that the Authority's findings, including the conduct of a terror group, the widespread nature of the violence and the violent targeting of an ethnic group are sufficient to satisfy the test of "significant harm" by reference to the concepts of "degrading treatment" or "cruel or inhuman treatment" in s 36(2A) of the Act. He submitted that embedded in the Authority's finding that the Appellant would face a real chance of extortion is the inference that his extortionists would be in a position to back up their threats with real violence, humiliation or related harm if he refused to accede to the demands. He also submitted that the Authority's finding of extortion implied an acceptance that he and his family would be degraded in their ability to participate in the economy. 35 The Authority determined that the Appellant had suffered extortion on multiple occasions and would face a real threat of further extortion if he returned to Pakistan. Under the first new ground of appeal, the Appellant contended that the Authority applied the wrong test for the purpose of s 36(2A) of the Act in concluding that such risk of extortion does not constitute serious harm. The Appellant relied upon Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; 254 CLR 610 at [45], in which the majority stated with respect to the analogous concept of "serious harm" defined in s 36(2)(a) of the Act: To resolve the question before the Court, it is enough to say, in light of the collocation of threats to life and liberty in s 91R(2)(a), that the question of whether a risk of the loss of liberty harm constitutes "serious harm" for the purposes of s 91R(1)(b) requires a qualitative judgment. This qualitative judgment will include an evaluation of the nature and gravity of the loss of liberty. Whether the likelihood of detention in any case rises to the level of serious instanced by s 91R(2)(a) is a question which invites consideration of the circumstances and consequences of that detention. (emphasis added) 36 The Appellant submitted that the Authority did not undertake a qualitative judgment in arriving at its conclusion that the accepted widespread instances of ethnically motivated extortion by a criminal group could not amount to significant harm. The Appellant submitted that the Authority's decision made no reference to the Appellant's sex, age or health, the duration of the extortion or its physical and mental effects in determining whether extortion would meet the definition of "significant harm". The Appellant submitted that the Authority's reasons concerning this question constituted a "statement of conclusion absent reasoning". In failing to evaluate whether the threat of extortion constituted serious harm, the Authority applied the incorrect test at law in determining that the threat of extortion does not constitute significant harm within the meaning of ss 36(2)(aa) of the Act. 37 The second new ground of appeal was that the Authority failed to have regard to a relevant consideration, namely the possible consequences for the Appellant or his family of real violence and extreme humiliation were they not to accede to the threats or extortion. The Appellant submitted that the Authority failed to either define or properly understand the gravity of its own findings. In this regard, the Appellant referred to Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118 - 119. 38 The third new ground of appeal is that the decision of the Authority was 'illogical' within the meaning of the test applied in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. The Appellant submitted that the Authority's decision makes no reference to the definition of "degrading treatment", "cruel or inhuman treatment" or the crime of extortion. The Appellant submitted that the decision of the Authority was therefore devoid of an evident and intelligible justification as to why the real risk of foreseeable harm by way of extortion does not meet the definition of "significant harm". This lack of intelligible reasoning, so the Appellant contended, was legally unreasonable.

Minister's submissions 39 The Minister opposed the grant of leave to amend on the basis that the explanation for delay was inadequate and that the grounds lacked merit. 40 With respect to the explanation for delay, the Minister referred to QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 at [7], in which the Full Court said: In Minister for Immigration and Multicultural Affairs v Kabail (1999) 93 FCR 498, Tamberlin J considered whether any 'special reasons' had been shown and whether, as a matter of discretion, an extension ought to be granted. In the present case we do not consider an exercise of discretion to be appropriate. It is not, in our view, sufficient to refer to circumstances affecting the Appellant which explain only part of the period after which an order for leave to appeal is sought. The situation identified as constituting the special reasons was the uncertainty about this Court's jurisdiction. That uncertainty was resolved on 4 February 2003. The only explanation for the delay in taking any step in this Court between that date and 14 May 2003 is the Appellant's failure to pay his solicitors' fees. Without more, such a situation would not provide a reason for exempting a party from the application of the rules prescribing time limits. It cannot therefore provide a sufficient explanation for the continuing delay on the part of an Appellant for filing an application for leave to appeal. 41 The Minister submitted that the Appellant's evidence that his income is not stable was a statement as to his current financial position and thus explained only part of the period before the application for leave to amend was made. The Minister also submitted that the Appellant had received a degree of assistance before the Circuit Court. 42 The Minister did not contend he would suffer any prejudice as a result of the amendments, if allowed, beyond the public interest in the finality of administrative decision making (Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; 75 ALJR 470) and the public interest in not subverting the appeal process by in effect making this Court a court of first instance (AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452). 43 I now turn to the Minister's substantive submissions concerning the new grounds of appeal. 44 The Minister submitted that there is no express finding in the Authority's reasons to the effect that the Appellant would re-commence business activities in Hyderabad. Even accepting that this were a predicate of the Authority's decision, the Minister submitted that there was insufficient merit in the Appellant's proposed grounds that the Authority erred in finding the risk of extortion does not amount to "significant harm" as that term is defined for the purpose of ss 36(2)(aa). 45 The Minister relied upon the requirement in ss 36(2)(aa) that there be "substantial grounds" for believing that as a necessary and foreseeable consequence of the Appellant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. The Minister submitted that the requirement that there be "substantial grounds" imposes a high hurdle for the Appellant to meet: see, eg, CRI026 v The Republic of Nauru [2018] HCA 19; 92 ALJR 529 at [24], where Kiefel CJ, Gageler and Nettle JJ said: As can be seen, those provisions of the ICCPR do not expressly impose a non-refoulement obligation on States Parties. Rather, it is accepted as a matter of international law that Art 2 impliedly obligates States Parties not to remove a person from their territory where there are "substantial grounds" for believing that there is a real risk of irreparable harm of the kind contemplated by Arts 6 and 7 in the country to which such removal is to be effected. "Substantial grounds" means, however, that it must be a necessary and foreseeable consequence of refoulement that the person would suffer the kind of harm identified in Arts 6 and 7. As Perram J observed in Minister for Immigration and Citizenship v Anochie, that is a high hurdle for the applicant to meet. The risk of harm must be both necessary and foreseeable and, according to the weight of relevant international jurisprudence, it is neither if it can be avoided by reasonable relocation within the applicant's country of nationality. (citations omitted) 46 The words of the statute must be applied: Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; 207 FCR 211 at [29]. The phrase "significant harm" is defined per s 5 of the Act as harm of a kind mentioned in subsection 36(2A). That sections reads as follows: … (2A) 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. … (emphasis added) 47 The Minister submitted that the definitions of "torture", "cruel or inhuman treatment or punishment" and "degrading treatment or punishment", as defined in s 5 of the Act, indicate that the level of proposed harm is significant. It is a level of harm that involves an evaluative judgment: WZAPN. The Authority properly identified what the law was at [32] of its decision. It thereafter made an evaluative judgment of the retrospective extortion of which the Appellant claimed, and nevertheless found that it did not rise to the level of "significant harm" as defined. The experience of past harm is a relevant consideration in the assessment of prospective harm: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559. The Minister contended there is nothing in [34] of the Authority's reasons that demonstrates it misapprehended the legal test. 48 The Minister contended that the test for illogicality under SZMDS has a very high threshold, and that to meet it, it would have to be said that no rational decision-maker could arrive at the same decision on the same material. The Minister submitted that in order to meet this test, it would be necessary to conclude that a risk of extortion necessarily constitutes serious harm within the meaning of s 36(2)(aa) of the Act. The Minister submitted that a risk of extortion does not of itself constitute significant harm for the purpose of s 36(2)(aa). 49 The Minister submitted that the Appellant's second proposed ground of appeal turns on the same point as the first and third, namely whether extortion rises to the level of "significant harm". For the same reasons advanced in relation to the first and third proposed grounds, the Minister submitted the second ground also lacked sufficient merit to grant leave to amend. 50 The Appellant's claims for protection pursuant to s 36(2)(aa) of the Act turn upon the prospective risk of extortion he faces if he is removed to Pakistan. That risk is contingent upon the Appellant engaging in business activities, or possibly business activities of a kind which attracted the attention of the MQM or the Taliban in the past. It was not submitted on behalf of the Appellant that he would face a risk of harm for other reasons if he is removed to Pakistan.

Consideration 51 At the hearing, the grounds of appeal effectively coalesced into a single proposition: that the Authority erred in evaluating whether the risk of the Appellant being targeted for extortion constituted a real risk of significant harm. The error was described variously in the grounds of appeal as: (1) the Authority applied the incorrect legal test (ground 1); (2) the Authority failed to have regard to the consequences of the Appellant refusing to meet extortion threats (ground 2); and / or (3) the Authority reasoned illogically and irrationally (ground 3). 52 I am not satisfied any of the grounds have been made out. In relation to ground 1, the Authority properly understood the concept of "significant harm" as defined by s 36(2A) of the Act (see [32] of its reasons). Further, albeit briefly, the Authority applied that concept in assessing the prospective risk of harm to the Appellant and engaged in the evaluative judgment required of it, before concluding that the risk of being targeted for extortion did not involve a real risk of significant harm (see [33]-[34] of its reasons). Acknowledging the well understood and limited boundaries of judicial review, I do not consider there to be any error in this reasoning process. 53 Further, in relation to ground 2, I do not accept that the Authority failed to consider the consequences for the Appellant if he refused to comply with the demands of those seeking to extort him. To the contrary, the Authority specifically accepted that the Appellant faced a "low but nevertheless real risk of being targeted for extortion by the MQM" but determined that such a risk would not amount to significant harm within the meaning of Act. That reasoning process necessarily involved consideration of what might occur to the Appellant, both if he acceded to the demands of the MQM or rebuffed them. No error is disclosed in the failure to expressly refer to possible consequences for the Appellant in circumstances where he refused to comply with the demands of those seeking to extort him, particularly where it was not "necessary and foreseeable" that would occur. 54 In relation to ground 3, there is no basis to conclude that the Authority's reasoning process was illogical or irrational, and in that sense legally unreasonable. The Authority raised the prospect of the Appellant being subject to extortion threats on the contingency that he opened a business in Hyderabad. There was no express finding or conclusion that he would actually do so. However, even accepting that proposition, it was an entirely defensible for the Authority to reach the view that the threats to extort the Appellant did not constitute a real risk of significant harm. That was not a conclusion incapable of being arrived at by a rational and reasonable decision-maker. 55 In this regard, during the course of the hearing, I invited the parties to refer me to any additional authorities in which a risk of harm that is contingent on certain events has been considered in the context of a complementary protection claim. On 6 December 2019, counsel for the Minister provided a note with additional authorities including, amongst others, Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106. At [31]-[34] of SZSWB Gordon, Robertson and Griffiths JJ said: The question for the Tribunal raised by s 36(2)(aa) was whether it had substantial grounds for believing that, as a necessary and foreseeable consequence of the visa applicant being removed from Australia to Iran, there was a real risk that he will suffer significant harm: s 36(2)(aa) of the Act at [6] above and see the definition of "receiving country" at [7] above. That question necessarily directed attention to the claim made by the visa applicant. This focus on the claim made by the visa applicant is important. As the Full Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)) at [55]: … Where the Tribunal fails to make a finding on a 'substantial, clearly articulated argument relying upon established facts' that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. (Emphasis added.) These observations were further explained in NABE (No 2) at [56]-[63]. In the present case, the immediate focus is not whether the Tribunal failed to consider a claim not expressly advanced (NABE (No 2) at [68]) but whether, as a matter of fact, the visa applicant said anything about taking up cigarette selling again in the event that he was returned to Iran. As the Full Court said in NABE (No 2) at [62], "[w]hatever the scope of the Tribunal's obligations it is not required to consider criteria for an application never made". Moreover, the claim must emerge clearly from the materials: NABE (No 2) at [68]. Put another way, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made: see Appellant S395 at [1] per Gleeson CJ, citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31]. What then did the materials disclose about the visa applicant's claim for complementary protection under s 36(2)(aa)? … 56 That decision assists the Minister in establishing that the putative risk of harm identified was not necessary and foreseeable and that there were not substantial grounds for believing that the Appellant was at real risk of suffering significant harm. Although the Authority made findings that the Appellant's business was targeted for extortion by the MQM in Hyderabad between 2008 and 2010, it did not accept that he or his family encountered any further problems after he sold his business, including in the period from 2011-2013, when he voluntarily returned to Hyderabad. Further, the Appellant did not expressly suggest that he would open a business if he returned to Hyderabad and the Authority did not make any findings to this effect. Having regard to these considerations, there was nothing illogical or irrational about the Authority's conclusion that the Appellant did not satisfy the test in s 36(2)(aa). 57 If the proposed new grounds of appeal had sufficient merit, I would have allowed the application for leave to amend, notwithstanding the Minister's objections on public policy grounds referred to above. However, for the reasons given above, I am not satisfied that there was any error in the Authority's reasons as identified in either of the proposed grounds of appeal.

Disposition 58 For the above reasons, I am not satisfied there is sufficient merit in the proposed grounds of appeal and accordingly refuse leave to amend the Notice of Appeal. 59 Further, I am not satisfied that the Appellant has established any of the grounds as expressed in his Notice of Appeal filed on 24 May 2019. 60 The appeal will be dismissed with an order that the Appellant pay the Minister's costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.