CPN15 v Minister for Immigration

[2017] FCCA 2322

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPN15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2322

Catchwords:
MIGRATION – Application for a protection visa – review of decision of Administrative Appeals Tribunal – meaning of “intentionally inflicted” and “intended to cause” – whether intention established by knowledge or foresight of pain or suffering or extreme humiliation – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2), 36(2A)

Cases cited:

SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69

SZTAL v Minister for Immigration & Border Protection [2017] HCA 34

Other materials cited:
European Convention on Human Rights, Article 3

Applicant: CPN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3310 of 2015

Judgment of: Judge Smith

Hearing date: 9 November 2016

Date of Last Submission: 9 November 2016

Delivered at: Sydney

Delivered on: 29 September 2017

REPRESENTATION

Counsel for the Applicant: Mr B. Mostafa

Solicitors for the Applicant: Fragomen Lawyers

Solicitors for the Respondents: Mr R White, Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3310 of 2015

CPN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 10 November 2015. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

2. The applicant claimed to satisfy the criterion for the grant of a protection visa in sub-s.36(2)(aa) of the Migration Act 1958 (Cth) (Act) on the basis that, if returned to Sri Lanka, he would be placed on remand in unsatisfactory prison conditions. The risk arose because when he left Sri Lanka, the applicant did so in contravention of Sri Lankan law. The applicant referred to country information showing there was a real risk of him being imprisoned on remand and that prison conditions in Sri Lanka were so poor as to constitute, at least, inhuman or degrading treatment or punishment under Article 3 of the European Convention on Human Rights.

1. Sub-section.36(2)(aa) of the Act provides that a criterion for the grant of a protection visa is that the applicant is:

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has 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; or

   …

2. Section 36(2A) of the Act provides that a person will suffer “significant harm” for the purposes of sub-s.36(2)(aa) 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.

3. There is no issue that the circumstances relied on by the applicant could only have satisfied sub-pars.(d) or (e) of s.36(2A) of the Act. Those sub-paragraphs are subject of the following further definition in s.5 of the Act:

   “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.

   “degrading treatment or punishment”  means 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.

   (Emphasis added)

4. In SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 (SZTAL) Kenny and Nicholas J held at [59], that the natural and ordinary meaning of “intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct.”

5. In rejecting the applicant’s claims concerning sub-s.36(2)(aa) and prison conditions, the Tribunal applied the same reasoning as that of the majority of the Full Court of the Federal Court in SZTAL. The Tribunal said, at [72] of its reasons for decision, that it was not satisfied:

   …[t]hat the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’. …

6. The applicant accepted that, if SZTAL were correctly decided, the Tribunal’s reasoning revealed no error; however, at the time of the hearing, there was an application to the High Court for special leave to appeal from that decision and the applicant urged the Court to reserve its decision until that application, and any subsequent appeal, had been determined. Given the number of cases involving this issue, I adopted the approach suggested by the applicant and reserved my decision.

7. Special leave to appeal from the decision in SZTAL was granted by the High Court and judgment on the appeal was given on 6 September 2017: SZTAL v Minister for Immigration & Border Protection [2017] HCA 34. The appeal was dismissed by majority, the Court finding that the reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective intention: [26] (Kiefel, Nettle and Gordon JJ) and see [101] and [114] (Edelman J).

Conclusion

1. In light of the High Court’s decision, the only ground of review in these proceedings must fail. The application must be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       29 September 2017