AJJ15 v Minister for Immigration

[2016] FCCA 482

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJJ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 482

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to consider or respond a claim – principles to be applied – Tribunal’s misunderstanding of claim did not affect decision – whether Tribunal failed to comply with Ministerial Direction No.56 – intentional infliction of harm – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 65(1), 91R(1)(c), 414(1), 430, 499(2A)

Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1
SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64
SZTCY v Minister for Immigration & Border Protection [2015] FCCA 85
SZTDM v Minister for Immigration & Border Protection [2015] FCA 150
SZTEP v Minister for Immigration & Border Protection [2015] FCA 1499
SZTGM v Minister for Immigration & Border Protection [2015] FCCA 87
SZUQZ v Minister for Immigration & Border Protection [2015] FCCA 1552

Applicant: AJJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 930 of 2015

Judgment of: Judge Smith

Hearing date: 1 March 2016

Date of Last Submission: 1 March 2016

Delivered at: Sydney

Delivered on: 15 March 2016

REPRESENTATION

Counsel for the Applicant: Mr R. Clark

Solicitors for the Applicant: Fragomen

Counsel for the Applicants: Mr M.J. Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 930 of 2015

AJJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the Refugee Review Tribunal[1] made on 27 February 2015, affirming the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Background and claims

1. The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia in June 2012 and lodged an application for a protection visa on 12 November 2012. In a statutory declaration attached to that application, the applicant made a number of claims. He referred to a number of incidents that occurred in 2006 which caused him to be sent, by his family, to live in India with his grandmother and other relatives. When the situation in Sri Lanka improved in 2010, the applicant returned to Sri Lanka but his father was told that the country’s authorities were looking for the applicant and that he should return to India.

2. On or around 3 May 2012, the applicant went with a friend to buy clothes and was approached by a man who was Sinhalese. This man led the applicant and his friend to a laneway where three other men were standing alongside a van. The applicant and his friend ran away and were pursued by the Sinhalese man but were able to escape him.

3. On or around 20 May 2012 the applicant went out to buy dinner. While waiting, two Sinhalese men approached him and asked him where he was living. When he asked the men who they were, the men told him that that he should answer the question otherwise they would be beat him and break his teeth. The applicant was held by his shirt at the chest and the men pushed him. One man dragged him by the hand and the applicant followed them. He was taken to a white van that did not have any registration numbers but, once again, the applicant was able to escape. In the same month a friend of the applicant was taken by people in a white van and beaten. The applicant then left Sri Lanka by boat.

4. The applicant claimed that he feared that he would be harmed by reason of his race (being a young Tamil male) and for reason of his political opinion, that he would be perceived to be a member or supporter of the LTTE. He also claimed that he would be mistreated or harmed for reasons of his membership of a particular social group, namely failed Sri Lankan asylum seekers and would be perceived to be an LTTE supporter for having departed the country illegally and having sought asylum in a Western country. He also claimed that the authorities would not protect him.

5. On 9 August 2013 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant subsequently applied to the Tribunal for review of that decision. On 4 November 2014 the applicant was invited to attend the hearing to be held by the Tribunal on 17 December 2014. Prior to the hearing, the applicant’s legal representatives, who also acted for him in these proceedings, wrote extensive submissions to the Tribunal. In those submissions the representatives addressed the possible consequences of the applicant having left Sri Lanka illegally. In that respect they wrote, amongst other things:

   96.As the Applicant left Sri Lanka as a young adult and has no property to return to, he will not be able to provide the authorities with a return address, and no family members would be able or willing to stand as guarantor for his release from remand. This leaves the Applicant particularly vulnerable and puts him at significant risk.

6. The applicant attended the hearing conducted by the Tribunal on 17 December 2014. At the hearing he gave further evidence in support of his claims including that he had travelled to Malaysia in January 2011 on a tourist visa and had made an appointment to see the UNHCR there in order to seek recognition as a refugee. However, he said that he returned to Sri Lanka a day before that appointment. He also gave evidence that upon his return from Malaysia he did not experience any difficulties for some months until April 2012 when he was working as a fisherman. At that time, his boat was caught by the Sri Lankan Navy and he was told to jump in the water where he remained for about 15 to 20 minutes until the Navy left. When asked by the Tribunal if there had been any other incidents of harm after his arrival in Australia, the applicant said that at the end of 2013, people went to his home on two or three occasions and asked his father about him. As a result, his father, sister, her husband and son went to live in India in January 2014 although his mother and sister’s 10-year-old son remained in Sri Lanka because the child had an important examination.

7. The Tribunal made its decision to affirm the delegate’s decision on 27 February 2015.

The Tribunal’s decision

1. The Tribunal accepted the applicant’s claims as to what occurred prior to his departure for India in 2006 but found that the fact of the family’s return to Sri Lanka in 2010 suggested that they did not fear harm in Sri Lanka.

2. The Tribunal rejected the claim that the applicant’s father had been told that the authorities and Sinhalese men had been making enquiries about the applicant. In doing so, it noted that the applicant had given evidence at the hearing that was inconsistent with the claims made in his protection visa application. In light of that and in consideration of the evidence as a whole, the Tribunal did not accept that the applicant went to Malaysia because he feared harm in Sri Lanka. It also did not accept that the applicant had approached the UNHCR in Malaysia but, rather, had fabricated this claim, raising doubts about his credibility.

3. The Tribunal accepted the applicant’s claim that he had been told to jump in the water by the Sri Lankan Navy in April 2012 but found that he had not suffered any significant or serious harm on the basis of that incident. With some reservation, it also accepted that it was plausible that the applicant and his friend had been harassed and chased in May 2012 when he was shopping with his friend but it was not satisfied that he had suffered serious or significant harm on that basis.

4. Further, the Tribunal did not accept that the applicant had been chased by men in a white van in May 2012 on the basis of some inconsistencies in his evidence and the fact that the applicant had managed to escape. It rejected the evidence given by the applicant at the hearing that people had gone to his house at the end of 2013 asking for him. This was essentially because it found it difficult to accept that a 10-year-old child would be left behind in Sri Lanka in the circumstances simply because he had an important examination but also because of other general credibility concerns.

5. In conclusion, while the Tribunal accepted that some incidents had occurred to the applicant, it found that they were isolated and were not motivated by an adverse interest in the applicant, or suggestive of a profile of any specific interest to any group.

6. The Tribunal then went on to consider the applicant’s more general claims. In that respect, the Tribunal accepted that the applicant was a young Tamil from the North of Sri Lanka; that he had lived in Tamil Nadu where he was recognised as a refugee; and, that he may be considered as a failed asylum seeker and a forced returnee from a Western country who had departed unlawfully from Sri Lanka. However it found that those factors did not mean that the applicant would be perceived as having any links or associations with the LTTE or for being a sympathiser or that he would be subject to more scrutiny than other returnees because of his profile.

7. After summarising and extracting a number of sources of information about Sri Lanka, the Tribunal found that credible independent country information indicated that it was those who had actual or perceived strong LTTE links/sympathisers who could be targeted. As the Tribunal had found that the applicant had no profile of being involved or associated with, or suspected of being involved with, the LTTE, it did not accept that he would be imputed with an adverse political opinion by the authorities because he was a Tamil from the Eastern Province, or had left Sri Lanka illegally, or was a failed asylum seeker, or for any other claimed reason.

8. The Tribunal then considered whether the applicant would be harmed on the basis of being a failed asylum seeker or returnee from a Western country. The Tribunal found that the country information in this respect indicated that it was essentially those with an adverse profile who can encounter harm in Sri Lanka if returned from a Western country as failed asylum seekers. For that reason it found that the applicant would not suffer harm on the basis of being a Tamil failed asylum seeker or returnee from a Western country. In particular, it found the applicant’s submission that he had no property and would not be able to provide the authorities with a return address would not give rise to a real chance of harm.

9. Next, the Tribunal considered whether the applicant would be harmed on the basis of his illegal departure. In this respect, it set out a passage from a report from the Department of Foreign Affairs and Trade dated 3 October 2014, the relevant part of which was:

   … In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them. …

10. The Tribunal accepted that information and also found that the country information indicated that all persons are granted bail on personal recognisance, with the requirement for a family member to stand as guarantor and there was no requirement to pay for bail. It accepted that there was a real chance the applicant may be arrested and imprisoned for a few days on remand because he had departed the country illegally.  It also accepted that the conditions in prison may be crowded and poor and that the applicant may be questioned and fined. It did not accept that returnees were being mistreated by the authorities in Sri Lanka.

11. The Tribunal considered on the basis of the country information, that the laws regarding unlawful departure were of general application, applied in a non-discriminating manner, and served a legitimate purpose of dealing with people who depart the country unlawfully. For that reason the Tribunal concluded that the processing at the airport, questioning, and being held on remand from a few days awaiting a bail hearing and being fined did not amount to persecution for the purposes of sub-s.91R(1)(c) of the Migration Act 1958 (Cth).

12. On the basis of those findings the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention[2] reason in Sri Lanka now or in the reasonably foreseeable future and so was not satisfied that the applicant was a refugee under sub-s.36(2)(a) of the Act.

    [2] Convention Relating to the Status of Refugees done at Geneva in 1951 as amended by the Protocol Relating to the Status of Refugees done at New York in 1967 [1954] ATS 5 and [1973] ATS 37.

13. In respect of the complementary protection criterion in sub-s.36(2)(aa), the Tribunal found, on the basis of its earlier findings, that the applicant’s profile would not lead to a real risk that he would suffer significant harm upon return to Sri Lanka. In respect of the potential consequences of his illegal departure from Sri Lanka, the Tribunal found that, as returnees were only reported to be held on remand for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given, and the prospect of the applicant being detained for a prolonged period of time of paying a fine was remote, none of those consequences constituted significant harm within the meaning of the Act. Further, it found that even though the conditions in prison were substandard none of the consequences of being detained was intentionally inflicted and so did not amount to significant harm within the meaning of the Act.

14. Finally, the Tribunal stated:

    [77]In relation to the adviser’s submission that the applicant would not be able to provide the authorities with a return address, that he has no property or guarantor. The Tribunal has serious doubts that the applicant would not be able to provide details about his address, but in any case, in consideration of the evidence as a whole, that Tribunal does not accept that there is a real risk of significant harm on those bases (or any other basis).

15. For those reasons the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the decision to refuse to grant that visa.

Consideration

Ground 1: Failure to consider a claim

1. The first ground of the application is that the Tribunal’s decision involved a denial of procedural fairness insofar as the Tribunal failed to respond to the applicant’s claim that he had no guarantor and for that reason would not be granted bail in Sri Lanka.

2. The Tribunal’s duty is to “review” the decision of the delegate: s.414(1); Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]. That means that, like the delegate before it, the Tribunal must determine whether it is satisfied that a review applicant satisfies the criteria for the grant of a protection visa: s.65(1). Those criteria involve the assessment of the possibility of events occurring when a visa applicant returns to his/her own or her own country of nationality or residence. Those are factual matters which vary according to the evidence before the Tribunal, both that given by or on behalf of a review applicant as well as other information about the circumstances pertaining in the relevant country. Thus, it has been said that the Tribunal cannot discharge its statutory review task without ‘a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the on-going circumstances on the ground’: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [38].

3. Similarly, it has often been said that for the Tribunal to fail to respond to a substantial, clearly articulated argument relying upon established facts is to deny an applicant procedural fairness and to constructively fail to exercise its jurisdiction: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [25]. The Tribunal may, of course, “fail to respond” to a claim or argument in a number of ways. It may simply overlook the claim or argument or misunderstand it or its relevance to the issues on the review: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63].

4. On the other hand, a failure by the Tribunal to consider a particular argument or claim may not amount to jurisdictional error where the failure was not material to its decision. In other words, in order to find jurisdictional error it is necessary to find not only an error of understanding or approach, but also a discernible effect on the exercise of power which points to a conclusion that the decision was made without authority because there had been a jurisdictional error: Minister for Immigration & Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562 at [60] (Buchanan J). There might be no jurisdictional error, for example, where other findings made by the Tribunal were unaffected by the error and were dispositive of the application for review. In my opinion, that is what occurred in this case.

5. As noted above, the applicant’s written submissions to the Tribunal claimed that the applicant had no family members that would be able or willing to stand as guarantor for his release from remand. Although the context of that claim made it a little difficult to understand the relevance of it, it clearly related to the claim that the applicant would be detained on return to Sri Lanka for his illegal departure and would be harmed, amongst other things, as a result of the poor prison conditions.

6. The Tribunal found that returnees to Sri Lanka charged with offences relating to illegal departure may be held on remand for a period before being released on bail. More particularly, it found that bail was granted on personal recognisance “with the requirement for a family member to stand as guarantor.” That finding gave rise to the possibility, on the applicant’s claims, that he would not be released from remand pending trial. The Tribunal’s reasons did not grapple with that possibility. Rather, it found that the applicant “may be arrested and imprisoned for a few days on remand” and proceeded to assess his claims on that basis.

7. The Minister argued that the Tribunal considered the claim about the lack of guarantor and rejected it. First, it set out the claim in its summary of all of the applicant’s claims. I agree that that much indicates that the Tribunal was at least cognisant of the claim. Secondly, it referred to the claim again at [53] and [77] of its reasons:

   [53]The adviser submitted that the applicant would not be able to provide the authorities with a return address and he has no property. The Tribunal has serious doubts that the applicant would not be able to provide details about his address, but in any case, in consideration of the evidence as a whole, the Tribunal does not accept that there is a real chance of harm on this basis, or lack of property.

8. The reasoning in that passage is, with respect, obscure. Whatever it means, it certainly does not constitute a rejection of the claim concerning the lack of guarantor. There is no mention of it. The second passage relied on by the Minister is no clearer:

   [77]In relation to the adviser’s submission that the applicant would not be able to provide the authorities with a return address, that he has no property or guarantor. The Tribunal has serious doubts that the applicant would not be able to provide details about his address, but in any case, in consideration of the evidence as a whole, the Tribunal does not accept that there is a real risk of significant harm on those bases (or any other basis).

1. In this passage the Tribunal did not reject the factual element of the claim, but concluded that it does not mean that the applicant satisfied the relevant criterion. That reasoning is not only obscure but, on the assumption that the Tribunal understood the significance of the claim, illogical. The accepted fact that the applicant had no guarantor meant, on the Tribunal’s own findings, that the applicant would not be released on his own recognisance and so would likely remain in prison until trial. The Tribunal’s earlier findings concerning the risk of significant harm were, for the most part, as I have said, based on its finding that the applicant would be released from remand after a few days. That finding does not and cannot follow from the lack of guarantor.

2. In my view, the illogicality in this passage, and the failure by the Tribunal to grapple with the claimed lack of guarantor is best explained by the fact that the Tribunal did not appreciate the significance of the claim. It is difficult to understand how it did not appreciate that significance. However, the fact that it did not distracted it from considering the impact of a longer period of detention on the applicant rather than simply jumping that step and concluding that the period would only be a few days. The issue that arises is whether that misunderstanding constituted jurisdictional error.

3. There were two criteria relevant to the Tribunal’s decision. The first was that contained in sub-s.36(2)(a) of the Act. Relevantly, that required the Tribunal to determine whether detention in relation to an offence under a law of Sri Lanka amounted to persecution. The applicant accepted that the Tribunal’s determination of that question was not affected by its consideration of the time which the applicant might spend in detention prior to trial. That concession was properly made. In order to amount to “persecution” conduct must be “for reasons of” one of the grounds in the Refugees Convention. The Tribunal found that it was not and the applicant does not assert that it made any error in that respect. For that reason, the Tribunal’s satisfaction that the criterion in sub-s.36(2)(a) was not satisfied was not affected by any jurisdictional error.

4. The second relevant criterion was that in sub-s.36(2)(aa) of the Act. In order to satisfy that criterion, an applicant must establish that there are “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”. Section 36(2A) of the Act provides that a non-citizen will suffer “significant harm” if, relevantly:

   …

   (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.

5. Each of those instances of significant harm is further defined in s.5 of the Act. Those definitions all include an element of intention. For example, 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.

6. The Tribunal found that there was no intentional infliction of any type of harm or suffering. In light of that finding, it was inevitable that it would not be satisfied that there was a real risk that the applicant will suffer significant harm.

7. The applicant argued, however, that this determination was necessarily linked to the Tribunal’s finding about the length of time he might spend in detention. He pointed to the Tribunal’s repeated reference to that finding including one in the passage in which it was dealing with intention:

   [73]… Accordingly, the Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’ as defined while he is on remand for a relatively short period.

8. I accept that, at first glance, that passage shows some interrelation between the two aspects of the Tribunal’s reasons. However, on closer analysis there is no connection between them. First, there is no logical connection between the length of time a person might spend in detention as a result of not being able to obtain bail and the issue of whether harm suffered in detention was intentionally inflicted even though it might be relevant to the extent of the harm. Secondly, the passage quoted follows on from the independent conclusion that the necessary intent was absent. Thirdly, in the following paragraph ([74]), the Tribunal went on to consider the question of intent without any reference to the period of incarceration. Finally, at [75], the Tribunal concluded that there was no real risk of the applicant suffering significant harm “during any period which he might spend in gaol or on remand.”

9. For those reasons, I conclude that the Tribunal’s finding that there was no intentional infliction of harm or suffering was independent of, that is to say, unaffected by, its finding about the time which the applicant might spend on remand. In light of that, the Tribunal’s misunderstanding of the applicant’s claim to have no guarantor did not affect the Tribunal’s decision and did not amount to jurisdictional error.

Ground 2: Failure to comply with s.499(2A) and Direction No.56

1. Direction 56 was made by the then Minister for Immigration on 21 June 2013 and relevantly provides:

   2.In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration:

   ‘PAM 3: Refugee and humanitarian - Complementary Protection Guidelines’

   ‘Pam 3: Refugee and humanitarian - Refugee Law Guidelines’

2. The first of the guidelines referred to in the Direction is relevant to these proceedings. In that guideline there are a number of sections dealing with the intentional infliction of pain and suffering. In each of those there appears the following statement:

   In certain circumstances, it may be appropriate to infer an intention to inflict severe pain or suffering if it is evident that such pain or suffering was or may be knowingly inflicted.

3. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Section 499(2A) requires a personal body to comply with a direction made under sub-s.499(1). There is no dispute that the Tribunal has functions and powers under the Act and that Ministerial Direction No.56 was made in accordance with s.499(1) of the Act. Thus, if the Tribunal fails to comply with that Direction it may fall into jurisdictional error.

4. The question is whether the Tribunal failed to comply with the Direction.

5. The Direction and its effect were considered by Perram J in SZTDM v Minister for Immigration & Border Protection [2015] FCA 150. His Honour noted, at [16], that cll.2 and 3 of the Direction, contemplate that the Tribunal is only obliged to consider the guidelines or country information to the extent they are relevant and, at [20], that it is the Tribunal’s view of what is relevant that counts, not the Court’s view. The obvious difficulty for an applicant in light of that is that the Tribunal’s obligation under s.430(1) of the Act is, relevantly, limited to setting out material findings of fact. If there is no finding in a Tribunal’s reasons, it may be inferred that the Tribunal did not consider the fact material or, in the case of Direction No. 56, relevant.

6. The applicant submitted that that inference is not always a necessary one and relied on the decision in SZUQZ v Minister for Immigration & Border Protection [2015] FCCA 1552 for the proposition that where the Guidelines are at least potentially relevant the Tribunal is obliged at least to consider the relevance. While I agree that the Tribunal has to consider the relevance of the Guidelines, I do not agree that there is any obligation to set out that consideration in its reasons. Section 430(1) simply does not go that far.

7. The applicant relied on the fact that there was information before the Tribunal to show that pain or suffering from prison conditions was knowingly inflicted and so made the Guidelines potentially relevant. That information, as set out in the applicant’s written submissions to the Court, was:

   (a)the UK Home Office’s Operational Guidance Note: Sri Lanka which stated “conditions in prisons and police custody are very poor and taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of torture, are likely to reach Article 3 threshold and a grant of Humanitarian Protection may be appropriate.” (CB200 [114e]);

   (b)a Human Rights Watch report that “Former detainees who spoke to Human Rights Watch said they were held in filthy, small detention rooms or cells with little or no access to toilet facilities, forcing them to defecate in a plastic bag. One bucket of water would be provided to drink and wash. The amount of food available to detainees varied, but many told Human Rights Watch they were fed only once daily during their detention.” (CB201 [114h.d]);

   (c)the US Department of State’s 2011 Country Reports on Human Rights Practices – Sri Lanka, which states: “Prison conditions were poor and did not meet international standards due to overcrowding and the lack of sanitary facilities. In many cases prisoners reportedly slept on concrete floors and often lacked natural light or sufficient ventilation. According to prison officials and civil society sources, prisons designed for approximately 11,000 inmates held an estimated 32,000 prisoners. More than 13,000 of these prisoners either were awaiting or undergoing trial. There were approximately 1,400 female prisoners. In some cases juveniles were not held separately from adults. Pretrial detainees often were not held separately from those convicted. Petty criminals and sexual offenders often were incarcerated with perpetrators of more serious crimes.” (CB201-202 [114.h.i]);

   (d)UNCAT Concluding Observations of the Committee against Torture which state “The Committee is concerned at the deplorable levels of overcrowding and poor conditions prevailing at police stations and prisons, especially the lack of hygiene, inadequate medical care, the non-separation of convicted and remand prisoners and the failure to keep adult detainees and juvenile offenders separate, as reported by the Special Rapporteur on the question of torture...

   The Committee is concerned at reports from non-governmental organisations on deaths in custody, including police killings of criminal suspects in alleged staged “encounters” or “escape” attempts. The Committee notes with concern that the State party only reported two cases of death in custody, where the cause of death was determined to be suicide, for the entire period 2006-2011, while for a similar period between 2000-2005 the State party had reported in its core document approximately 65 annual deaths in custody from all causes” (CB202 [114h.j]).

8. The logic of the argument appears to be that this information showed that the conditions in prisons was so bad that the authorities must have known about it and, because they knew about it, any harm suffered as a result of being in prison must have been, or at least, could have been, knowingly inflicted.

9. Even if that logic were accepted, it does not assist the applicant. The real difficulty is that the relevant part of the Guideline is so vague as to be almost meaningless. In its terms it only applies in “certain circumstances” and, even then, only suggests that a particular inference “may be appropriate”. The fact that the relevant inference was not drawn could be the result of any number of things: for example, that the Tribunal did not think that the circumstances applied or that it thought that, even though the circumstances arose, that it was not appropriate to draw the inference. In light of that vagueness, I find that the lack of any analysis of the Guidelines does not indicate that the Tribunal considered that they were relevant and yet failed to have regard to them.

10. I would add that I do not give much weight to the fact that the Tribunal recounted its obligation to have regard to the Guidelines.

11. For those reasons, this ground fails.

Ground 3: Intentional infliction of harm

1. The third ground relates to the Tribunal’s interpretation of the meaning of “intentionally inflicted” and “intended to cause.” The applicant accepted that, in light of this Court’s decisions in SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64; SZTGM v Minister for Immigration & Border Protection [2015] FCCA 87 and SZTCY v Minister for Immigration & Border Protection [2015] FCCA 85 this ground could not succeed. However, he submitted that, as those decisions were the subject of appeals heard in the Full Court of the Federal Court in August 2015, the Court should reserve its decision pending the outcome of the appeal.

2. Until late December 2015 I would have acceded to that request. However, there are two reasons for which I will not reserve judgment pending the outcome of those appeals. First, on 23 December 2015, Gilmour J delivered judgment in SZTEP v Minister for Immigration & Border Protection [2015] FCA 1499 in which he found that SZTAL was correct. I am bound to follow that decision. Secondly, given that the appeals were heard in August 2015, there is a reasonable likelihood that judgment in them will be handed down before any appeal from this judgment is heard.

3. Given the applicant’s concession about the applicability of the decision in SZTAL and the judgment of Gilmour J in SZTEP this ground must be rejected.

Ground 4

1. The applicant did not press the fourth ground in the application.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 15 March 2016