BKX15 v Minister for Immigration
[2017] FCCA 2972
•4 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKX15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2972 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal failed to consider a claim in relation to the complementary protection criterion – whether the Tribunal misapplied s.5 and s.36(2A) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 414, 476 |
| Cases cited: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 |
| Applicant: | BKX15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1987 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 26 May 2017 |
| Date of Last Submission: | 26 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Mostafa |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The application made on 17 July 2015 and amended on 7 October 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1987 of 2015
| BKX15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 July 2015, and amended on 7 October 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 12 June 2015, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”).
Background
The applicant is a citizen of Sri Lanka. He is of Hindu religion and Tamil ethnicity (CB 32). He arrived in Australia as an “Irregular Maritime Arrival” on 16 July 2012 (CB 1 and CB 33). He applied for a protection visa on 21 December 2012 (CB 14 to CB 107). His application was refused by the delegate on 2 October 2013 (CB 124 to CB 152). The applicant applied for review to the Tribunal on 31 October 2013 (CB 154 to CB 160).
The applicant’s representative provided written submissions to the Tribunal on 20 March 2014 (CB 175 to CB 203). The applicant and his representative attended a hearing before the Tribunal on 1 April 2015 (CB 239 to CB 242). The applicant’s representative provided
post-hearing written submissions to the Tribunal on 22 April 2015 (CB 248 to CB 259). The Tribunal affirmed the delegate’s decision on 12 June 2015 (CB 266 to CB 281).
Prior to leaving Sri Lanka, the applicant resided with his family in Batticaloa (CB 3). At an “entry interview” on arrival, and when making his protection visa application, the applicant claimed to have departed Sri Lanka in response to an incident that occurred while he was on his way home from Batticaloa Town (CB 9 and [11] at CB 47 to CB 48 to [15] at CB 48).
The applicant claimed that he was “abducted” by occupants of a “white van” and taken to an “unknown house”. He claimed that his hands and feet were tied, and that he was detained for three days until he was released by an “elderly man”. The applicant claimed not to know the identities of the individuals who had abducted him (CB 9 and [11] at CB 47 to CB 48 to [13] at CB 48). After the abduction, the applicant claimed he did not feel it was safe for him to remain in Sri Lanka.
The applicant reiterated these claims before the Tribunal in written submissions provided to the Tribunal by the applicant’s representative on 20 March 2014 (CB 178 to CB 179 and see [38] at CB 273).
In considering whether the applicant was entitled to protection under the Refugees Convention criterion (s.36(2)(a) of the Act), the Tribunal accepted that the applicant had been abducted and detained for three days ([38] at CB 273). However, it found that the abduction was a “random opportunistic act” ([39] at CB 274). Further, the Tribunal did not accept ([39] at CB 274):
“…that the applicant was abducted for reasons relating to his perceived or real political opinion, religion or membership of a particular social group of his family, wealthy Tamils in Sri Lanka or any subsets of these groups.”
The Tribunal also rejected other claims raised by the applicant at the hearing before the Tribunal in its consideration of the Refugees Convention criterion (s.36(2)(a) of the Act) (see [33] - [34] at CB 272 and [41] at CB 274 to [42] at CB 275).
The Tribunal considered whether the applicant was entitled to protection on the basis that he would be returning to Sri Lanka as a failed asylum seeker and as a result of his illegal departure. It found that he was not entitled to protection either in relation to the Refugees Convention criterion (s.36(2)(a) of the Act) (see [43] at CB 275 to [56] at CB 279), or in relation to the complementary protection criterion (s.36(2)(aa) of the Act) (see [59] at CB 279 to [61] at CB 280).
The Application to the Court
Before the Court, the applicant relied on the amended application filed on 7 October 2015. However, he did not press grounds one and three. The relevant grounds are therefore grounds two and four. They appear in the amended application in the following terms:
“2. The Tribunal failed to properly consider s 414 of the Act because it failed to consider a component integer of the applicant’s claim for protection under s36(2)(aa) of the Act.
Particulars
a. The Tribunal accepted that ‘in March 2012 the applicant was abducted by unknown individuals and detained for three days’: at [38].
b. The applicant claimed that the abduction was ‘mentally traumatic’ as ‘he thought he would be killed at any given moment’ (Submission at [27]; SD at [13]) and that, during the abduction, he ‘saw another Tamil boy who was tied in a corner; he looked like he had been severely beaten’: Submission at [26]; SD at [12].
c. The applicant claimed that ‘the Sri Lankan authorities choose not to protect Tamils, enabling individuals who abduct Tamils for financial gain or harassment to act with impunity’: Submission at [29]; SD at [13].
d. The Tribunal failed to give any consideration to the matters in the preceding subparagraphs when considering the applicant’s claim for complementary protection: at
[57]-[64].
e. As a result of the failure pleaded in the preceding subparagraph, the Tribunal constructively failed to exercise its jurisdiction because it failed to determine a substantive issue raised by the material and evidence before it, namely whether the applicant’s abduction was such as to suggest that the applicant faced a real risk of significant harm if he was return to Sri Lanka: Summers v Repatriation Commission (2015) 145 ALD 30 at [109].
4. The Tribunal misconstrued or misapplied ss 5 and 36(2A) of the Act.
Particulars
a. The Tribunal accepted that the applicant faced the risk of being remanded in conditions ‘including overcrowding and poor sanitary conditions’, but in dealing with the intent requirements for significant harm the Tribunal stated only that it was ‘not satisfied that… such treatment is intentional as required by the Migration Act’: [60].
b. In engaging in this reasoning process, the Tribunal erred in:
i. failing to identify whose intention was relevant to whether the definitions of cruel or inhuman treatment or punishment had been met;
ii. failing to consider whether the deliberate act of imprisoning the applicant in the conditions that might involve pain or suffering came within the definition of ‘intentionally inflicted’ in the definition of ‘cruel or inhuman treatment or punishment’ in s 5 of the Act;
iii. failing to consider whether the act of imprisoning the applicant in the conditions described by the Tribunal was such that ‘severe pain or suffering, whether mental of physical’ might be inflicted on the applicant: s 5 of the Act;
iv. failing to consider whether the deliberate act of imprisoning the applicant in conditions that might cause extreme humiliation which is unreasonable was an act that was ‘intended to cause’ extreme humiliation which is unreasonable within the definition of ‘degrading treatment or punishment’ in s 5 of the Act; and
v. failing to consider whether the act of imprisoning the applicant in the conditions described by the Tribunal was such that ‘extreme humiliation which is unreasonable’ might be caused to the applicant: s 5 of the Act.
c. The errors in paragraph b above reveal that the Tribunal misconstrued ss 5 and 36(2A) of the Act.”
Consideration
Ground two asserts that the Tribunal’s decision is affected by jurisdictional error because it failed to consider an integer of the applicant’s claims when it considered the complementary protection criterion for the protection visa at s.36(2)(aa) of the Act.
The applicant’s submissions focused on the following evidence. In a Statutory Declaration accompanying his protection visa application, the applicant set out his account of the abduction incident as follows ([11] at CB 47 to CB 48 to [13] at CB 48):
“[11] In or around early March 2012 I was studying with a private tutor at Ananda Tutoring to re-sit my A-Level exams later that year. Ananda Tutoring was situated in Batticaloa Town, Batticaloa District, Eastern Province, Sri Lanka (‘Batticaloa Town’). Whilst I was returning to my Family Home with some friends on bicycles, a white van approached us from behind. We were aware of the notorious abductions and disappearances of Tamil’s by men in white vans and immediately became afraid. We could see that four to five men were in the white van. We all tried to disperse but before I could escape some men from the moving white men grabbed me and dragged me inside. My hands and feet were immediately tied together with material. The men didn’t say anything to me and I was too afraid to ask any questions out of fear that I would be killed.
[12] I was driven for approximately one and a half hours before I was taken to an unknown house. As I was taken into the house, I saw another Tamil boy who was tied up in a corner. He looked like he had been severely beaten. I was put into a room and locked away. I began crying and pleading for my release. Nobody responded to me.
[13] I was kept in a room for three days. Nobody spoke to me about what was going to happen to me. I was occasionally given food but I felt as though I was going to be killed. The unbearable torture of not knowing what would happen to me made the situation mentally traumatic for me. I felt that I would be killed at any given moment. On the third day, an elderly man came into the room that I was locked away in. He said that he felt pity for my suffering and released me. At the time, no other men were present in the house. I immediately ran to a nearby house. I told the people in the house what had happened to me. They contacted my parents who were able to take me home. After this abduction, I felt that there was no longer a guarantee for my safety anywhere in Sri Lanka. As Tamils we must live routinely in fear of being abducted. The Sri Lankan authorities (who are mainly Sinhalese) cannot or choose not to protect Tamils. This means that individuals who abduct Tamils for financial gain or simply to harass us can act with relative impunity. Further, I was afraid to attend the Police Station for fear that the authorities themselves were involved in my abduction.”
[Errors in the original.]
This was repeated in written submissions from the applicant’s representative dated 20 March 2014 (see [24] at CB 178 to [29] at CB 179).
The Tribunal accepted that the applicant had been abducted in March 2012 “by unknown individuals and detained for three days” ([38] at CB 273).
The applicant’s argument now is that while the Tribunal accepted that this event occurred, it made no reference to, or finding about, some of the detail of the claim. Specifically, that the applicant had seen a Tamil boy being beaten and that the entire situation had been “mentally traumatic” for the applicant (see particular “b” to ground two).
In this light, the applicant submitted that the Tribunal did not reject these “other” aspects of his claim.
Further, at [38] (at CB 273) of the Tribunal’s decision record, the Tribunal noted the applicant’s claim that the abduction had occurred in an area which was “dangerous” because of the presence of “Karuna” [the leader of a paramilitary group during the Sri Lankan Civil War which targeted Tamils].
The applicant’s submissions before the Court directed attention to submissions made by his representative before the Tribunal, which stated that the Karuna group had “become increasingly criminal” (CB 141.2). Further, that (as at October 2010), the paramilitary groups in Sri Lanka “are engaged in abductions and that the targets are generalized and do not belong to any particular group” (CB 141.3).
The applicant emphasised to the Court that there was country information before the Tribunal showing that persons in Sri Lanka were being targeted by paramilitary groups (such as the Karuna group), for reasons other than reasons that might give rise to a claim under the Refugees Convention criterion (s.36(2)(a) of the Act). The argument was that there was country information indicating that the paramilitaries were targeting certain persons and causing them harm. The motivation for the infliction of this harm was for reasons which come within the definition of “significant harm” for the purposes of s.36(2)(aa) of the Act.
In this context, the applicant’s oral submissions directed attention to [39] (at CB 273 to CB 274) as follows:
“As it was put to him at the hearing, the applicant’s account of the incident does not suggest that he was specifically targeted or that the incident was anything other than an unfortunate, random criminal act. The applicant responded by referring to his claimed family connection to the [Liberation Tigers of Tamil Eelam (“LTTE”)] through his cousin, the death of his father’s brother and allegations that his village was an LTTE village. The Tribunal has already rejected these claims as not credible. The applicant failed to provide any other reason as to why he would be targeted or specifically abducted close to his aunt’s house in Arasady. At his protection visa interview, when asked why he was abducted, he stated that he did not know why. Nevertheless he offered that perhaps they wanted money from him or they wanted to forcefully recruit him. The applicant did not pursue these claims at the hearing. There is no evidence before the Tribunal to suggest that the applicant’s family was ever approached for money or that they were victims of extortion despite their relative wealth. The Tribunal finds that the applicant’s abduction and detention was a random opportunistic act. The applicant had found himself at the wrong place at the wrong time. The Tribunal does not accept that the applicant was abducted for reasons relating to his perceived or real political opinion, religion or membership of a particular social group of his family, wealthy Tamils in Sri Lanka or any subsets of these groups.”
[Emphasis added.]
The applicant’s argument was that at [39] (at CB 273 to CB 274) of the Tribunal’s decision record, the Tribunal rejected that there was a “Refugees Convention link” to the abduction claim.
In short, the Tribunal accepted that the abduction incident had occurred. It did not make a finding rejecting the details of the claim. Although it found that the incident had occurred, the Tribunal nonetheless found that the applicant would not suffer harm for any Refugees Convention reason.
The Tribunal’s error, however, is said to be that when it came to consider the complementary protection criterion (s.36(2)(aa) of the Act), it failed to consider those elements of the abduction claim which may have given rise, separately, to a claim of “significant harm”. That is, elements of the abduction claim which the Tribunal either expressly accepted, or made no finding rejecting that they had occurred.
Rather, the Tribunal relied entirely on its findings in the Refugees Convention context to also reject the proposition that the applicant would suffer “significant harm” on return to Sri Lanka. It did so without considering the “serious” events claimed separately, in the complementary protection context (s.36(2)(aa) of the Act).
The applicant’s position is that the Tribunal did not consider the likelihood of the abduction occurring again on the applicant’s return to Sri Lanka, in the context of paramilitary groups having assumed a criminal focus and targeting people for reasons other than Refugees Convention reasons.
The Tribunal’s relevant analysis on complementary protection is at
[57] – [58] (at CB 279) as follows:
“[57] The Tribunal has rejected the applicant’s claims that his village was under the control of the LTTE; that his cousin was captured or forcefully recruited by the LTTE; that he had a family connection to the LTTE; that he had come to the adverse attention of the authorities for drawing LTTE helmets and uniforms or making anti-government art at school; or that he was assaulted by the army for playing with firecrackers and prevented from participating in religious festivals.
[58] Having regard to the findings of fact above, the Tribunal accepts that Tamils continue to face a level of societal discrimination in Sri Lanka. However, for the reasons already provided, the Tribunal is not satisfied that the applicant faces a real risk of being significantly harmed by the Sri Lankan authorities or anyone else due to his race as a Tamil or because he originates from the Eastern Province. Nor is the Tribunal satisfied that the applicant faces a real risk [of] significant harm by the Sri Lankan authorities or anyone else arising from his real or perceived political opinion; religion; or being a family member of wealthy Tamil landowners in eastern Sri Lanka, being a wealthy Tamil in eastern Sri Lanka or a combination of these.”
The applicant relied on a number of authorities, but SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32] (and as cited at SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252 at [41]) illustrates the basis of his ground:
“In the present case the Assessor did not accept that the appellant was targeted by the Taliban/Kuchis/Pashtuns when travelling on the road from his village to Ghazni City, which was a factual component of the appellant’s claim. The Assessor did not accept that there was a real risk that the appellant would suffer significant harm by Pashtuns/Taliban/Kuchis in relation to his travel on the roads, which was another factual element. The Assessor did not accept that all Hazaras are subject to persecution by the Taliban and Pashtuns. These being the claims put we see no error in so assessing them. We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.”
That is, the Tribunal did not consider whether the applicant was entitled to protection pursuant to s.36(2)(aa) of the Act because of the risk of abduction in the future. The submission was that this is what had been claimed by the applicant. Further, this also arose from the totality of his claim relating to the abduction incident.
The applicant’s argument before the Court was that the Tribunal’s error in relation to complementary protection can also be illustrated in relation to the applicant’s claims to fear harm as a Hindu (see [42] at CB 275), and his fear because of his claimed links to the Liberation Tigers of Tamil Eelam (“LTTE”) (see [33] – [34] at CB 272).
The Minister’s argument proceeds from the proposition that the Tribunal’s decision should be read fairly (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
The Minister’s submissions also directed attention to [38] (at CB 273) to [39] (at CB 273 to CB 275) of the Tribunal’s decision record, and argued that the applicant’s argument depends on asserting that the Tribunal made certain findings which it did not make. The Minister submitted that the Tribunal’s findings in relation to the abduction incident and the complementary protection criterion (s.36(2)(aa) of the Act), need to be understood in the context of the claims made by the applicant and the way the Tribunal addressed those claims.
The Minister’s submissions, in essence, were as follows. The Tribunal was aware that the applicant claimed to have been abducted (see [9] at CB 267 to CB 268). The abduction was discussed with the applicant at the hearing before the Tribunal (see [33] at CB 272).
While the Tribunal accepted that the applicant had been abducted in March 2012 at [38] (at CB 273), what the Tribunal then reasoned about that incident at [39] (at CB 273 to CB 274), and consequent to the finding at [38] (at CB 273), provides the answer to the applicant’s ground two.
The applicant’s reading of [39] (at CB 273 to CB 274) of the Tribunal’s decision record as set out above, is, that in the context of having accepted the abduction had occurred, the Tribunal rejected that the applicant had a “well-founded fear of persecution”. When it came to consider the applicant’s claims in relation to complementary protection (s.36(2)(aa) of the Act), the Tribunal did not consider those elements, or details, of the applicant’s account of the abduction events, which may still have meant that the applicant faced a “real risk” of “significant harm” on return to Sri Lanka.
I agree with the Minister that the resolution of the dispute between the parties now, arises from a fair reading of [39] (at CB 273 to CB 274) of the Tribunal’s decision record, and the context in which the finding in that paragraph was made.
The three last sentences at [39] (at CB 274) of the Tribunal’s decision record, must be fairly understood in the context of the applicant’s claims and the Tribunal’s analysis of those claims.
At [38] (at CB 273) of the Tribunal’s decision record, the Tribunal accepted that in March 2012, the applicant was “abducted by unknown individuals and detained for three days”. That is, the Tribunal accepted the applicant’s factual account in that regard.
What follows at [38] (at CB 273) of the Tribunal’s decision record, is a recitation of the applicant’s various accounts of the details relating to the abduction incident. There is no express finding by the Tribunal that it accepted that any, or all, of these details had occurred, as the applicant now claims.
I understood part of the applicant’s argument now to derive, in essence, from the proposition that the Tribunal did not make specific findings as to each aspect of the applicant’s claims. For example, that the applicant saw another Tamil boy being beaten.
However, a fair reading of [39] (at CB 273 to CB 274) of the Tribunal’s decision record, is that the Tribunal accepted that the detail (as outlined in [38] at CB 273) relating to the abduction, had occurred. The absence of any finding to the contrary supports the view that the first sentence of [38] (at CB 273) is the “conclusion” arising from what follows in the remainder of [38] (at CB 273). Put another way, the first sentence is explained by what follows in the remainder of [38] (at CB 273) of the Tribunal’s decision record.
Paragraph [39] (at CB 273 to CB 274) is the Tribunal’s analysis of the consequence, in the context of a “real risk” of harm, of the applicant having been abducted in the circumstances as set out in all of [38] (at CB 273).
The Tribunal’s analysis, drawing on what was discussed at the hearing with the applicant, was that the applicant’s own account of events did “not suggest that he was specifically targeted or that the incident was anything other than an unfortunate, random criminal act” ([39] at CB 273).
The Tribunal considered the applicant’s evidence that he would have been a target for abduction due to his family’s connections with the LTTE. The Tribunal had rejected that claim as not being credible ([33] at CB 272). The Tribunal also considered the suggestions by the applicant that he may have been a target for abduction because of extortion ([39] at CB 273 to CB 274). The Tribunal rejected this because there was no evidence to suggest this was the case ([39] at CB 274).
Therefore the Tribunal’s third last sentence at [39] (at CB 274), is the conclusion of its analysis as to the nature of the abduction. That is, the abduction was “a random opportunistic act”. In my view, when the Tribunal’s decision is read fairly, the finding that the abduction was “random” and “opportunistic”, is the critical finding in relation to the applicant’s abduction claim. The penultimate sentence when read fairly, is an emphatic, colloquial expression of the same finding.
What follows in the last sentence at [39] (at CB 274) is the consequence of that finding made in relation to the applicant’s claim that he had been abducted for reasons of political opinion, religion and the like. That is, a Refugees Convention reason.
It may be that the Tribunal could have structured its decision record in such a way as to separate findings of fact about the claimed events, from its conclusions as against the Refugees Convention criterion. That is, to put them in separate paragraphs to avoid any doubt as to the nature of the findings that it was making. However, on a fair reading, the last sentence at [39] (at CB 274), even when read with the first sentence of [41] (at CB 274), in which the Tribunal finds that the applicant is not at risk of “serious harm”, does not represent the reason for the Tribunal’s factual conclusion that the applicant’s abduction was a “random opportunistic act”. Rather, the last sentence at [39] (at CB 274), is the consequence of applying that conclusion to the Refugees Convention criterion (s.36(2)(a) of the Act).
In this light, when the Tribunal came to specifically consider the complementary protection criterion (s.36(2)(aa) of the Act) at [57] (at CB 279) to [59] (at CB 279 to CB 280), the absence of any specific reference to the abduction incident does not reveal error by the Tribunal, given that its earlier expressed factual findings meant that the Tribunal was not obliged to consider the matter in relation to s.36(2)(aa) of the Act.
The Minister acknowledged that the Tribunal could have been “clearer” in its reasoning. However, what is required is a fair reading, not one “with an eye keenly attuned to the perception of error” (Wu Shan Liang at [30]).
At [39] (at CB 273 to CB 274), the import of the Tribunal’s finding of the abduction being a “random” and “opportunistic” event is, when read fairly, that there was not a “real chance” of the abduction occurring again in the future.
As the Minister submitted, it is important to note that that finding (that the abduction was “random” and “opportunistic”), did not include any element that any future abduction would not occur for any Refugees Convention reason, leaving open the question as to whether it may occur for any other reason.
Rather, in context, the Tribunal found that the abduction, given its “random” and “opportunistic” nature, was not likely to occur again. I do not agree with the applicant that the Tribunal’s reasoning, and implicit in its finding that the abduction was “random” and “opportunistic”, was that the abduction would not occur again, but only in the context of the Refugees Convention criterion.
In my view, the Tribunal rejected, as a fact, that an abduction of the applicant would likely occur in the future. That is, the “real risk” of an abduction occurring in the future was rejected.
In this light, there was no occasion for the Tribunal to consider the abduction claim in the context of the complementary protection criterion (s.36(2)(aa) of the Act) at the paragraphs under the heading of “Complementary Protection”. That claim did not survive the Tribunal’s analysis and factual finding as to the likelihood of a future occurrence.
I agree with the Minister that the words “for the reasons already provided” (as they appear in the second sentence of [58] (at CB 279) under the heading of “Complementary Protection”), refer, amongst other findings, to the abduction finding. These words inform the Tribunal’s subsequent finding and provide the reference to the factual basis on which it concluded that it was not satisfied that the applicant faced a “real risk” of “significant harm” on return.
Ground two is not made out.
Ground four asserts that the Tribunal misunderstood or misapplied s.5 and s.36(2A) of the Act. The particulars to the ground make clear that the ground depended on the proposition that SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 was wrongly decided.
This was confirmed by the applicant before the Court. The amended application was drafted, and the final hearing of this matter occurred, before the handing down of the High Court’s judgment in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 (“SZTAL”). The applicant acknowledged that the appeal to the High Court would determine the efficacy of this ground and asked that the Court await the High Court’s decision.
Given the High Court’s judgment in SZTAL, the applicant’s ground four must fail. Relevantly, what the High Court concluded in SZTAL is as follows (at [114]):
“…The Full Court was correct that the Tribunal was required only to consider intention as meaning an ‘actual, subjective, intention’. It was not sufficient for that intention to be proved by oblique intention. Foresight of consequences, especially with a high degree of perceived likelihood, is a matter from which intention can be inferred. But it is not part of the definition of intention. The appellants could only have established ‘intention’ within par (a) of the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1) of the Migration Act if the Tribunal accepted that a relevant Sri Lankan official acted in a way meaning, in the sense of having as an aim or purpose, that ‘severe pain or suffering, whether physical or mental’ would be inflicted. This conclusion was rejected by the Tribunal.”
Conclusion
The grounds of the amended application are not made out. It is appropriate that the application to the Court be dismissed. I will make the appropriate order.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 4 December 2017
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