AWC21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1568

AWC21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1568

The Tribunal did not fall into jurisdictional error. On the authority of GLD18, harm arising from the act of removal from Australia, including loss of family and support in Australia, language barriers, deterioration in mental health and consequential reversion to alcohol abuse, gambling or criminal behaviour, is not significant harm for the purposes of s 36(2)(aa) because it is not harm arising from acts, omissions or circumstances in the receiving country. The pleaded risk of self-inflicted harm was also not a risk of significant harm and did not constitute cruel or inhuman treatment or punishment as defined in s 5 of the Act.

Jurisdiction
Australia
Judgment Date
22 December 2022
Procedural Posture
Migration Appeal Concerning Refusal of Protection Visa Under S 36(2)(aa) of the Migration Act 1958 (cth) / Appeal From the Federal Circuit and Family Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision
Outcome
Appeal dismissed.
Legal Topics
['protection Visas' 'complementary Protection' 'significant Harm' 'cruel or Inhuman Treatment or Punishment' 'jurisdictional Error' 'removal From Australia' 'self Inflicted Harm' 'mental Health']
['migration Law' 'administrative Law' 'human Rights'] ['protection Visas' 'complementary Protection' 'significant Harm' 'cruel or Inhuman Treatment or Punishment' 'jurisdictional Error' 'removal From Australia' 'self Inflicted Harm' 'mental Health']

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Procedural Posture

Migration Appeal Concerning Refusal of Protection Visa Under S 36(2)(aa) of the Migration Act 1958 (cth) / Appeal From the Federal Circuit and Family Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision

Legal Issues

  1. 1 ['Whether the Tribunal fell into jurisdictional error in concluding that harm following removal from Australia would not amount to significant harm under s 36(2A) of the Migration Act 1958 (Cth).' 'Whether the intentionality requirement in the definition of cruel or inhuman treatment or punishment in s 5 of the Migration Act 1958 (Cth) could be met by intentionally self-inflicted harm.' 'Whether harm caused by removal from Australia, including separation from family and support and deterioration in mental health, is harm faced in the receiving country for the purposes of s 36(2)(aa).']

Ratio Decidendi

The Tribunal did not fall into jurisdictional error. On the authority of GLD18, harm arising from the act of removal from Australia, including loss of family and support in Australia, language barriers, deterioration in mental health and consequential reversion to alcohol abuse, gambling or criminal behaviour, is not significant harm for the purposes of s 36(2)(aa) because it is not harm arising from acts, omissions or circumstances in the receiving country. The pleaded risk of self-inflicted harm was also not a risk of significant harm and did not constitute cruel or inhuman treatment or punishment as defined in s 5 of the Act.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The Appellant pay the First Respondent's costs, to be assessed on a lump sum basis, if not agreed." 'The name of the First Respondent be amended to the "Minister for Immigration, Citizenship and Multicultural Affairs".']