CONSIDERATION
30 It is convenient to deal first with ground 2 of the appeal. That ground is an attack on the Federal Magistrate's reasoning as to whether the Tribunal afforded procedural fairness to the appellant. The Federal Magistrate considered this issue at [32]-[37] of his judgment.
31 The requirements of procedural fairness that the Tribunal must observe are set out in Division 4 of Part 7 of the Act: s 422B. Relevantly, s 424 provides that the Tribunal may get any information it considers relevant, including by inviting a person to give information. Once that information is received, it must be considered. Information was given by the appellant in this case in both oral and documentary form. Not all of the documents given to the Tribunal were referred to in its reasons. The Federal Magistrate correctly observed that fact does not of itself demonstrate error on the part of the Tribunal. It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396, [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, [14]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389, [58].
32 In this case, as the Federal Magistrate noted, much of the material submitted by the appellant did not relate in any obvious way to the appellant's eligibility for a protection visa. Instead, the material related to the decision to cancel the appellant's former visa on character grounds. That decision was not the subject of the application for review before the Tribunal. It was unnecessary for the Tribunal to refer to it.
33 The Federal Magistrate found that there was no information used by the Tribunal to which the procedural requirements of s 424A of the Act attached. That finding was correct. The only information before the Tribunal that could have been characterised as "the reason, or a part of the reason, for affirming the decision that is under review" was information that fell within s 424A(3) (information provided by the appellant, and information not specific to the appellant), and was therefore exempt from the requirements set out in s 424A(1).
34 It appears from [54]-[62] of the Tribunal's reasons that the Tribunal raised with the appellant particulars of two pieces of information that the Tribunal considered "would be the reason, or a part of the reason, for affirming the decision that is under review", apparently pursuant to s 424AA(a). The two pieces of information were (1) that the appellant had been in Australia for 17 years but only now made an application for a protection visa; and (2) that the appellant had originally stated on a form that he had not experienced any harm in New Zealand, but he had then stated at the Tribunal hearing that he had in fact experienced harm in New Zealand. The procedural requirements of s 424AA(b) were satisfied in relation to those pieces of information. The Tribunal's reasons show that it tried to ensure the appellant understood those pieces of information and their consequences. It gave the appellant additional time to respond to those pieces of information and to comment on the pieces of information.
35 Section 425 requires the Tribunal to "invite the applicant to appear before [it] to give evidence and present arguments relating to the issues arising in relation to the decision under review." The Tribunal of course did invite the appellant to appear before it. But s 425 will not be satisfied merely by inviting an applicant to a hearing. The requirements of s 425 are described by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 162-163. In essence, they are that the issues arising in relation to the decision under review must be made clear to the applicant so that he or she can give evidence and present arguments on those issues in a meaningful way. The Federal Magistrate found that s 425 had been satisfied because "the dispositive issues (including the issue of credibility) were raised with the applicant in the context of the hearing, … he was given a proper opportunity to respond, and … those responses were considered": [33]. That is a finding that is clearly available from the Tribunal's account of the hearing recorded in its reasons. The Tribunal's inquiries at the hearing made plain to the appellant the dispositive issues in relation to the application.
36 Accordingly, there are no grounds to conclude that the Federal Magistrate erred in finding that procedural fairness was not afforded to the appellant. Ground 2 is therefore not made out.
37 Ground 1 of the grounds of appeal is a reference to the Federal Magistrate's consideration of whether or not the appellant fulfilled the criterion for a protection visa set out in s 36(2)(aa) of the Act, referred to by the Federal Magistrate as the complementary protection criterion.
38 Ground 3 is an attack on the same finding in respect of his claim that his fear of "significant harm … at the hands of the GANGS and other people acting independent of government [in New Zealand]" is "in accordance with the provisions [of] section 36(2)(aa) of the Migration Act…"
39 It is convenient to deal with Ground 3 first.
40 The Tribunal found that there was no real chance that the appellant faced the risk of gang violence, other than the risk of random and non-selective violence faced by the population of New Zealand generally. That finding of fact was clearly open to it. There is however no explicit finding that the random risk of the appellant's facing gang violence does not attract s 36(2)(aa) circumstances. The Tribunal noted generally that it is "not satisfied that the information before it is sufficient to establish that [s 36(2)(aa) is satisfied]." As the Federal Magistrate noted at [43], the lack of a specific finding on this issue discloses no error on the Tribunal's part, as "no jurisdictional error is made when a Tribunal makes findings at a higher level of generality that are capable of dealing with more specific claims that have been made": see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, [91] per McHugh, Gummow and Hayne JJ.
41 The Federal Magistrate at [58] concluded that the risk of gang violence faced by the appellant did not satisfy the s 36(2)(aa) criterion. That conclusion is clearly correct. A risk of significant harm will not be a "real risk" for the purposes of s 36(2)(aa) if it is a risk "faced by the population of the country generally and … not faced by the non-citizen personally". That language mirrors the Tribunal's finding. The risk of gang violence was therefore not a "real risk" for the purposes of s 36(2)(aa), and so the s 36(2)(aa) criterion was not satisfied. Moreover, as the Federal Magistrate found at [59]:
In addition, the Tribunal found that there was no evidence to support the applicant's claim that the New Zealand authorities could not or would not protect him. As such, the exception in s.36(2B)(b) of the Migration Act operates such that there is taken not to be a real risk that the person will suffer "significant harm" for the purposes of s.36(2)(aa) and (2A).
42 Ground 3 of the appeal is therefore not made out.
43 It remains to consider whether the Federal Magistrate erred in any other respect in his analysis or application of the term "significant harm" as defined by s 36(2A) for the purposes of s 36(2)(aa) as otherwise s 36(2B)(c) would operate.
44 The meaning of that term was primarily considered by the Federal Magistrate at [60]-[67] of his judgment in relation to the question of whether forced separation from one's children could be considered "significant harm". If separation from one's children could constitute "significant harm", it must be by being "cruel or inhuman treatment" or "degrading treatment": s 36(2A). The other categories of "significant harm" are obviously inapplicable, and (as has been noted above) s 5(1) of the Act makes clear that the listed categories of "significant harm" are exhaustive.
45 "Cruel or inhuman treatment" is defined in s 5(1) of the Act as follows:
…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.
46 "Degrading treatment" is defined in the same section as follows:
… an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omissions:
(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.
47 It should be noted here that only an "act or omission" will fall within either of the above definitions. Being separated from one's children is, in the present context, not an act or omission but a consequence of an act. The relevant act is the act of removal from Australia. The separation from his children is said to be the cruel, inhuman or degrading treatment.
48 The Federal Magistrate concluded that forced removal from one's children in Australia by the Australian government could not be considered cruel, inhuman or degrading treatment so as to constitute "significant harm" for the purposes of s 36(2)(aa) of the Act for four main reasons:
1. The text of s 36(2)(aa) (which refers to Australia's "protection obligations"), and the Explanatory Memorandum associated with the Bill that introduced s 36(2)(aa) (Migration Amendment (Complementary Protection) Bill 2011: Explanatory Memorandum, House of Representatives [65]), make it clear that the purpose of s 36(2)(aa) is to ensure Australia complies with its "non-refoulement obligation" that arises from Articles 2 and 7 of the 1966 International Covenant on Civil and Political Rights and associated jurisprudence of the United Nations Human Rights Committee. That obligation is an obligation not to remove anyone from Australia to a country where there are substantial grounds for believing that there is a real risk that the person will suffer "irreparable harm". The obligation is therefore clearly an obligation to protect non-citizens from harm faced in the receiving country. Being removed from one's children cannot be characterised as a harm faced in the receiving country.
2. Section 36(2B) sets out the circumstances where a non-citizen should be taken not to be at a real risk of significant harm for the purposes of s 36(2)(aa); for instance, where the non-citizen is reasonably able to relocate to another part of the receiving country where there would be no real risk of significant harm: s 36(2B)(a). These "exceptions" only make sense if the legislature intended that the "significant harm" occurs only in the receiving country.
3. To satisfy s 36(2)(aa), the real risk of significant harm must arise "as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country". The fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
4. With respect to "degrading treatment", forced separation from one's family by removal from Australia cannot constitute "degrading treatment" as defined in s 5(1). "[D]egrading treatment" is an act or omission that, inter alia, is "intended to cause" extreme humiliation and, the Federal Magistrate said, separation from one's family is a consequence of the act of removal from Australia and "… a consequence cannot be said to have an intention to cause a result (which it itself constitutes)", so the act of removal itself cannot be said to be "perpetrated by the State with the intention to cause extreme humiliation that is unreasonable": at [65].
49 In my view, that reasoning is not shown to be erroneous. An interpretation of the legislation that incorporates removal from one's family by the Australian government as "significant harm" would be an extremely strained reading, and one not in accordance with the clear intention of Parliament in enacting the complementary protection criterion. That intention was to honour Australia's non-refoulement obligation. In short, the appellant has failed to identify or demonstrate any error in the application of the term "significant harm" by the Federal Magistrate. Specifically in relation to the findings made by the Tribunal that harm feared by the appellant from gangs and other unidentified people in New Zealand does not meet the threshold of "significant harm" in s 36(2A) of the Act, and does not represent in any event fear of harm for a Convention reason, and that the removal of the appellant from Australia to New Zealand with the consequence of the separation from his children or its effects does not constitute "significant harm" as defined, no error is shown.
50 The appeal is therefore dismissed. The appellant must pay to the first respondent costs of the appeal.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.