CQL16 v Minister for Immigration

[2018] FCCA 997

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQL16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 997

Catchwords:
MIGRATION – Judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant Protection visa – whether Tribunal considered applicant’s psychological issues and drug dependence when assessing whether the applicant would suffer serious harm if detained or imprisoned on return to his country of nationality – whether Tribunal erred in proceeding on the basis that intentionally inflicted harm did not require subjective intention to inflict harm – whether any arguable case arose because of conduct of applicant’s legal representative – whether applicant was unfit to participate in hearing before Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Cases cited:

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

Applicant: CQL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2518 of 2016

Judgment of: Judge Manousaridis

Hearing dates: 23 November 2017, 4 April 2018

Date of Last Submission: 4 April 2018

Delivered at: Sydney

Delivered on: 27 April 2018

REPRESENTATION

Applicant by telephone assisted by an interpreter

Solicitors for the First Respondent: Mr L Dennis of MinterEllison

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2518 of 2016

CQL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Sri Lanka, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. The applicant, who is Sinhalese and Catholic, set out his claims for protection in a statutory declaration that formed part of his application for a Protection visa. He there claimed as follows:[1]

   [1] CB54-59

   a)Ever since the applicant was a child his family supported the Sri Lankan United National Party (UNP). His father is a member of the UNP, and has worked as an assistant at the UNP polling booths. The applicant is also a supporter of the UNP and has voted for them in elections.

   b)In about early December 2009 the applicant started campaigning for the UNP in and around the Kurana area in the Western Province. The applicant assisted in a number of ways, including door-knocking for the UNP with his friends and other UNP members. Between December 2009 and January 2010 the applicant “spoke personally with over fifty percent of the families in the Kurana area”.

   c)One week after the applicant started campaigning for the UNP he started receiving threats from members of the opposing political party, the United People’s Freedom Alliance (UPFA). The applicant “received threats in the form of verbal threats and physical assaults”.

   d)On about 11 December 2009 the applicant was with 15 other UNP members when they were assaulted by about 15 to 20 members of the UPFA. The applicant was “hit squarely in the back” but managed to run away back to his family home. After this incident the applicant received several more threats for his participation with the UNP election campaign, with one being received from “an influential member of the Negombo Municipal Council”.

   e)On about 19 December 2009, when he was in the company of his friends, the applicant was approached by UPFA members who threatened to kill him if he continued his involvement with the UNP campaigning.

   f)On about 24 December 2009, while travelling on his motorcycle, the applicant was stopped by some UPFA members on a “three wheeler”. They beat the applicant with a metal chain and warned the applicant to stop his involvement with the UNP. The applicant sustained several injuries on his back and upper arms.

   g)On about 10 January 2010 four police officers approached the applicant and asked him to present his “National ID”, which he provided. The police officers then accused the applicant of “destroying / taking down government party banners”. The applicant denied the accusations but the police officers told the applicant he would “have to accompany them to the police station for further questioning”.

   h)The applicant was detained in Negombo police station overnight and was told that he would be placed in prison if he continued working for the UNP. The applicant was “forced to agree” to stop supporting the UNP.

   i)The next morning a UNP member contacted the police and asked that the applicant be released. The applicant’s father collected him at the station. The police told the applicant “that next time they caught me, I would not be released so easily”. The applicant ceased his public involvement with the UNP.

   j)Around this time several violent riots broke out between members of the UNP and UPFA. The applicant decided to flee from the Kurana area and went into hiding at his paternal aunt’s home in the North Central Province where he remained until May 2011.

   k)In about May 2011 the applicant travelled to Dubai on a temporary work permit to “flee from the political problems” he faced and in search of employment.

   l)The applicant returned to Sri Lanka in April 2012 and he continued to “abstain from public campaigning” on behalf of the UNP but he attended fortnightly UNP meetings.

   m)In about May 2012 the applicant went to a private birthday function that was attended by UNP and UPFA supporters. During the event the applicant got into an argument with a UPFA supporter, Mr A, who accused the applicant of “not making anything of” himself. The applicant and Mr A “engaged in a heated verbal exchange” which resulted in Mr A threatening to kill the applicant.

   n)Following this incident, the applicant began receiving threatening phone calls from Mr A. The applicant believed the threats were associated with the “tense political atmosphere in Sri Lanka at the time”. These telephone threats made the applicant realise that despite the fact that he had ceased public support of the UNP his life continued to be in danger.

   o)“After hearing stories of how supporters and members of the UNP had been seriously harmed and mistreated by opposing political factions” the applicant decided to flee Sri Lanka for Australia. Since his arrival in Australia the applicant’s family continues to be affected by the political tension in Kurana.

2. Before the Tribunal the applicant made a claim based on his drug use. The applicant claimed as follows:

   a)The applicant began using drugs after his mother died, and he became dependent on heroin.[2]

   b)The applicant had been arrested a number of times, including by the federal police in about 2008 or 2009 when he went to court and received a fine.[3]

   c)The narcotics police used him and other drug users to arrest drug dealers, and the narcotics police told him that if he did not assist them he would be arrested and taken to jail.[4]

   d)Friends on Facebook told the applicant that the “dealers are ready to kill him”.[5]

   [2] CB325, [37]

   [3] CB325, [37]

   [4] CB325, [38]

   [5] CB325, [40]

Proceedings before the Tribunal

1. As will be revealed later in these reasons, the applicant, at the hearing before me, made two submissions about the manner in which the matter proceeded before the Tribunal. For that reason, it will be necessary to set out here in some detail the history of the proceeding before the Tribunal.

2. On 9 November 2015 the Tribunal invited the applicant to appear before it on 11 December 2015 to give evidence and present arguments.  By letter dated 25 November 2015, however, the applicant, through his representative, requested that the hearing be adjourned for two months because the applicant is a “recovering heroin addict and is presently being treated with methadone”. The applicant provided a copy of a letter from a medical practitioner who indicated that the applicant “suffers from tiredness and forgetfulness and needs more time to recover”.[6] The Tribunal adjourned the hearing to 2 February 2016.[7]

   [6] CB202-203

   [7] CB212-215

3. By letter dated 27 January 2016 the applicant’s representative requested that the hearing of 2 February 2016 be adjourned for six months.[8] The representative stated “the Applicant continues to be unfit to attend for medical reasons”, those reasons being that the applicant is “a recovering heroin addict and is being presently treated with methadone”. The letter attached a letter from the applicant’s medical practitioner who stated the applicant is “making slow progress with his methadone program”, and would require an additional six months “to recover”.[9] The Tribunal refused to grant the adjournment, and stated that it “is mindful of [the applicant’s] condition and will allow a support person to attend the hearing” with the applicant.[10]

   [8] CB228

   [9] CB227-229

   [10] CB230-233

4. On 1 February 2016 the applicant’s wife had a telephone conversation with an officer of the Tribunal in which she stated that the applicant could not attend the hearing on 2 February 2016 because the applicant’s representative is not helpful and does not listen to the applicant. The applicant’s wife said the applicant wanted to obtain a new migration agent. The Tribunal officer asked the applicant and his wife “to send their concerns in writing”.[11]

   [11] CB237

5. At around this time, the Tribunal, through error, was copied in on an email sent at 5.37 pm on 1 February 2016 from the lawyer who was then representing the applicant to another lawyer or other person who was employed by or was a principal of the law firm of which the then representative was an employee or principal.[12] The email referred to the representative having called the applicant to go through his evidence, that the applicant “was ranting – complaining that his hearing wasn’t adjourned a second time”, and that the applicant did not want the representative to continue representing him. The email recorded that the applicant went to the Tribunal that morning and was advised to make a further request at the hearing on 2 February 2016, which the applicant indicated he would do. After the representative said he was willing to represent the applicant at the hearing, the applicant said the representative was not helpful, and he asked if he could have another agent from within the firm. The email concluded by asking what the addressee wanted the representative to do, noting that the applicant is “a recovering heroin addict”.

   [12] CB243

6. By letter dated 2 February 2016 a new representative of the applicant sent a letter to the Tribunal. After noting that the Tribunal had been “inadvertently copied in” on the email to which I refer in the previous paragraph, the new representative said she had been appointed as the applicant’s new representative and that she intended to appear at the hearing by telephone. The new representative also asked that the hearing be adjourned.[13]

   [13] CB244-245

7. At 10.12 am on 2 February 2016 the applicant’s new representative telephoned the Tribunal to ascertain whether the Tribunal had agreed to adjourn the matter. An officer of the Tribunal informed the new representative that the member said that the hearing will commence as scheduled, but the member will discuss the request for adjournment further.[14]

   [14] CB247

8. The hearing commenced on 2 February 2016 as scheduled, but the Tribunal adjourned that hearing in part to enable the applicant to obtain a more detailed medical assessment to support his request for a six-month adjournment.[15] On 16 February 2016 the applicant’s representative provided a letter from the applicant’s medical practitioner.[16] That letter listed the medication that had been prescribed for the applicant, and stated that the applicant “is an asylum seeker and is having problems with the Immigration Rent + with Dept of Human Services in relation to his daughter”, and that the applicant “feels he needs 6 month [sic] to sort himself out”.[17] On 18 February 2016 the applicant’s representative sent a further letter which attached “a more detailed opinion” of the applicant’s condition from the applicant’s doctor.[18]

   [15] CB322, [18]

   [16] CB251

   [17] CB253

   [18] CB254-257

9. By letter dated 15 March 2016 the Tribunal invited the applicant to appear at a hearing on 28 April 2016.[19] By letter dated 27 April 2016 the applicant’s representative informed the Tribunal that the applicant intended to attend the hearing on 28 April 2016.[20] On that day, the Tribunal cancelled the hearing.[21] By letter dated 23 May 2016 the Tribunal invited the applicant to appear at a hearing on 20 June 2016.[22] The hearing occurred on that day. According to the Tribunal’s reasons for decision:[23]

   The applicant told the Tribunal that he had attended one counselling appointment at [Clinic]. He stated that he was still taking methadone and valium and when asked how he was feeling at the hearing, he said, “good”.

   [19] CB276-279

   [20] CB286

   [21] CB287

   [22] CB294

   [23] CB322, [21]

10. The Tribunal noted in its reasons that it proceeded to finalise the review because it was of the view there was no information before it that warranted a further adjournment, or that indicated that there will be any change in the applicant’s circumstances in the future.[24]

    [24] CB322, [22]

Tribunal’s reasons

1. The Tribunal considered the applicant’s claims by reference to a number of subjects.

UNP supporter

1. The Tribunal accepted the applicant may have campaigned for the UNP in December 2009 and January 2010,[25] and that the police may have detained him in January 2010 for a short period in connection with destroying government banners or putting up posters.[26] The Tribunal accepted that both of these claims were consistent with country information. It was satisfied, however, that the harm the applicant experienced was related and confined to the election campaign; that the applicant suffered no further harm after he stopped campaigning and went to stay with his aunt;[27] and that the applicant had not claimed to have suffered any harm from the police.[28]

   [25] CB322, [31]

   [26] CB324, [32]

   [27] CB324, [31]

   [28] CB324, [31]-[32]

2. The Tribunal accepted the applicant may have attended a party in May 2012 and may have become involved in a heated argument with a person called Mr A, but it did not accept Mr A made threatening phone calls to the applicant because of his support for the UNP, or that the applicant had a profile that would have caused an assistant to a parliamentarian to make threats to kill the applicant.[29] The Tribunal found that the political scene in Sri Lanka had changed significantly since the applicant arrived in Australia, and it concluded the applicant did not face a real chance of serious harm now or in the reasonably foreseeable future, or a real risk of significant harm on return to Sri Lanka from UPFA supporters because he is a supporter of the UNP.[30]

   [29] CB324, [34]

   [30] CB324-325, [35]-[36]

Drug use

1. Before the Tribunal the applicant said he was no longer a drug addict. The Tribunal, however, was not prepared to accept that evidence, and assessed this part of the applicant’s case on the basis that he has a drug dependency that he has not yet fully overcome.[31]

   [31] CB330, [47]

2. The Tribunal accepted the applicant may use drugs on his return to Sri Lanka, that the use of drugs is illegal in Sri Lanka, and that the applicant may be charged with an offence if he is caught using or in possession of such drugs.[32] The Tribunal was satisfied, however, that:

   a)the laws relevant to the criminalisation of drug use in Sri Lanka are of general application and do not give rise to persecution under the Refugees Convention;[33]

   b)these laws are not applied selectively or in a discriminatory way and they do not have a discriminatory intent or impact;[34]

   c)there was no evidence before the Tribunal that indicated the applicant has ever manufactured or trafficked drugs or that the applicant would be convicted of any such offence or be liable for the death penalty;[35] and

   d)if the applicant were arrested for drug use, he would most likely be fined or referred to a drug treatment centre, either voluntarily or compulsorily, and that neither of these penalties would amount to serious or significant harm.[36]

   [32] CB327, [53]

   [33] CB327, [54]

   [34] CB327, [54]

   [35] CB327, [56]

   [36] CB326-327, [48]- [57]

3. The Tribunal considered the alternative possibility that the applicant will be imprisoned, rather than fined, if he is convicted of drug use. The Tribunal did not accept the applicant’s representative’s submission that the applicant would be exposed to torture. The Tribunal was satisfied that, should the applicant be imprisoned, he would not be regarded as a criminal, but as a person in need of care;[37] and that a period of imprisonment did not amount to cruel or inhuman or degrading treatment.[38] Further, there was no apparent intention on the part of the Sri Lankan authorities to inflict cruel or inhuman punishment or cause extreme humiliation by sentencing drug users to a period of imprisonment.[39] 

   [37] CB328. [60]

   [38] CB328, [61]

   [39] CB328, [61]

4. The Tribunal did not accept the applicant will face significant harm on return to Sri Lanka because he has a profile with the narcotics police and the federal police; because of his long absence from Sri Lanka; and because the narcotics police would implicate him in serious drug offences if he does not assist them in the future or if he seeks to speak against their corrupt methods.[40] The Tribunal did not accept the applicant was at an elevated risk of harm from the narcotics police because the applicant had not suffered any harm from the narcotics police in the past, and there was no apparent reason they would seek to harm him now or that the applicant’s absence from Sri Lanka would increase the risk of harm to him now.[41]

   [40] CB329, [64]

   [41] CB329, [64]

5. The Tribunal did not accept the applicant would be at risk of harm by drug dealers because of the assistance the applicant had provided to the narcotics police.[42]  The Tribunal relied on the applicant’s not having been harmed by drug dealers before he left Sri Lanka and the time that has passed since he last assisted the narcotics police.[43] The Tribunal accepted that if the applicant continues to use drugs in Sri Lanka he may be approached by the narcotics police, but noted that if that occurred the applicant would be able to refuse to assist the narcotics police.[44]

   [42] CB329, [65]

   [43] CB329, [65]

   [44] CB329, [66]

6. Finally, the Tribunal accepted there is social stigma against drug users in Sri Lanka, but it did not accept that such social stigma amounts to serious or significant harm.[45]

   [45] CB330, [68]

7. Given these findings, the Tribunal did not accept that the applicant faces a real chance of serious harm or a real risk of significant harm arising from his drug use or if he is charged with using or possessing drugs.[46]

   [46] CB330, [70]

Catholic faith

1. The Tribunal was not satisfied the applicant would face differential treatment by the authorities on return to Sri Lanka because of his Catholic Christian religion. The applicant had not made any prior claims of past harm arising from his religion and did not articulate any current fears relating to his religion and the Tribunal was not satisfied that the applicant had any subjective fear relating to his religion.[47]

   [47] CB329, [67]

Differential treatment on re-entry due to drug convictions

1. The Tribunal did not accept the applicant’s representative’s claim that, because the applicant had received a fine for drug use in 2008 or 2009, and in 2006 and 2007 had incurred fines for fighting, the applicant would be at greater risk of harm during the re-entry process in Sri Lanka. The applicant did not claim he engaged in drug trafficking, and he has never been accused of drug trafficking; and that, although heroin is a significant problem in Sri Lanka, country information does not indicate the heroin users in Sri Lanka are imputed with an association with the Liberation Tigers of Tamil Eelam.[48] The Tribunal did not accept the applicant would be subjected to any interrogation or mistreatment on his return to Sri Lanka for this reason.

   [48] CB331, [74]

Illegal departure

1. The Tribunal accepted the applicant departed Sri Lanka illegally and will be liable to be charged with an offence under the Immigrants and Emigrants Act (IE Act).[49] The Tribunal was satisfied the applicant would be held for a short period of between a few hours to a few days if he is charged with an offence under the IE Act.[50] The Tribunal was also satisfied, however, that the applicant did not have a profile that would cause him to be targeted while on remand.[51] Finally, while the Tribunal accepted the prison conditions in Sri Lanka are poor and do not meet international standards, it was satisfied that these conditions are due to a lack of resources, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or to cause extreme humiliation and would therefore not give rise to “significant harm” under Australian law.[52]

   [49] CB332, [82]

   [50] CB332, [82]

   [51] CB332, [83]

   [52] CB333, [88]

Tribunal’s conclusions

1. For those reasons, the Tribunal found that the applicant is not a person in respect of whom Australia has protection obligations under the Refugees Convention; and that the applicant did not satisfy the criteria prescribed by s.36(2)(aa) of the Migration Act 1958 (Cth).[53]

   [53] CB334, [93]-[94]

Course of judicial review hearing

1. The applicant was not legally represented at the hearing before me. He appeared by telephone and an interpreter attended the hearing before me. As is my usual practice with unrepresented applicants for judicial review of Tribunal decisions, I began the hearing by explaining to the applicant the nature of the hearing before me, and the procedure that was to be followed. After I explained these matters I asked the applicant whether he wished to make any submissions about why the Tribunal’s decision should be set aside. The applicant said he did not have anything to say.

2. I then invited Mr Dennis, who appeared for the Minister, to make submissions. Given the applicant did not make any submissions, Mr Dennis largely relied on the Minister’s written submissions, but made some brief submissions on a number of matters. These included Mr Dennis taking me through the course of the Tribunal’s proceeding which I have set out in some detail earlier in these reasons, and in particular to the Tribunal having adjourned the hearing on two occasions and having cancelled it on one occasion. Mr Dennis submitted there was no material before the Tribunal at the hearing of 20 June 2016 that could have warranted a further adjournment.[54] Mr Dennis then made submissions about the assessment of the costs I ordered the applicant pay on 23 November 2017. The order related to the costs thrown away by reason of my ordering that the hearing of the application that had been fixed for that day be adjourned.

   [54] T8.40

3. When I invited the applicant to respond to Mr Dennis’ submission, the applicant said that the lawyers “who represented me sent a letter or email to the Tribunal with some wrong information about me”, and the applicant asked whether that letter or email was in the material before the Court. The applicant said the “lawyers who represented me sent something against me to the Tribunal”,[55] and that “they actually sent a letter to Tribunal about my behaviour”. The applicant said “they didn’t help me at all. They didn’t do anything for me”.[56] It is apparent, and Mr Dennis submitted it was the case, that the applicant intended to refer to the email of 1 February 2016 that had been sent the Tribunal to which I have already referred.

   [55] T1240

   [56] T12.5

4. I then explained to the applicant the costs order I made on 23 November 2017. After I explained the costs order to the applicant, and that I proposed to reserve my judgment, the applicant said that, at the time of the Tribunal hearing, his “mental state was zero”.[57] I referred the applicant to paragraph 20 of the Tribunal’s reasons for decision where, after noting the Tribunal had previously adjourned the hearing for four months at the applicant’s request, at the hearing of 20 June 2016 the Tribunal asked the applicant how he was feeling and the applicant said “good”. I asked the applicant whether he intended to submit that paragraph 20 of the Tribunal’s reasons for decision was inaccurate. The applicant said the Tribunal’s reasons were incorrect because “they told me that they were going to proceed anyway”.[58] The applicant also said before the hearing of 20 June 2016 the applicant’s lawyer informed the applicant that the hearing would be proceeding. The applicant accepted, however, that neither he nor his lawyer asked the Tribunal to adjourn the hearing of 20 June 2016.[59] The applicant also said that at the day of the hearing he only had a telephone interpreter.

   [57] T15.40

   [58] T16.10

   [59] T17.20

5. After these exchanges, I informed the applicant that I proposed to deal with the applicant’s complaint about his lawyers as follows:[60]

   So, Mr Applicant, let me just explain to you what I propose to do. You have raised these issues, particularly about your lawyer. I will look at the material that has been brought to my attention. But from the point of view of considering whether they arguably give rise to a question as to the validity of the tribunal’s decision. In my reasons for judgment that I will publish on 27 April, I will set out my views on that question. Because what you have said is not included in any application that you have filed, if I find there is some arguable case that what you have said about your lawyers conduct affects the validity of the tribunal, I will say so in my reasons for judgment, but give the Minister an opportunity to put forward submissions about that question. If, on the other hand, I do not consider that raises any arguable case affecting the validity of the tribunal’s decision, I will so state in my reasons and that will be end of that part of the case.

   [60] T24

6. Given the manner in which the hearing was conducted before me, I propose to now proceed as follows. I will first consider each of the grounds stated in the application. I will then consider the matters raised by the applicant at the hearing before me.

Grounds of review

1. The application contains three grounds of review.

Ground 1

1. Ground 1 is a follows:

   The Tribunal committed jurisdictional error in failing to consider the significant harm the applicant would face by reason of having psychological issues if imprisoned for drug use or an offence under the Immigrants and Emigrants Act:

   Particulars

   a.The Tribunal had a letter from the applicant’s psychologist stating that the applicant has “psychological problems”: [19].

   b. The Tribunal accepted that the applicant may have psychological issues: [47]; [63].

   c. The Tribunal found that the applicant could be subject to imprisonment:

   i.      for drug use or possession: [53], [58]; or

   ii.      if he is charged with an offence under the Immigrants and Emigrants Act: [82].

   d. The Tribunal failed to consider whether by reason of his psychological issues the applicant would be subject to significant harm under s 36(2A) of the Act if imprisoned for drug use.

   e. The Tribunal failed to adequately consider whether by reason of his psychological issues the applicant would be subject to significant harm under s 36(2A) of the Act if imprisoned for an offence under the Immigrants and Emigrants Act: cf [89].

2. This ground claims the Tribunal did not consider whether the psychological issues from which it accepted the applicant suffered was a reason for the applicant’s being subjected to significant harm if the applicant were imprisoned under the IE Act. The psychological issues of which the ground claims the Tribunal was aware are those it identified in paragraphs 47 and 63 of its reasons. In paragraph 47 of its reasons, Tribunal accepted the applicant “may be experiencing psychological issues such as anxiety”. In paragraph 63 of its reasons the Tribunal referred to the applicant’s representative’s submission that the applicant has a heightened vulnerability to cruel or degrading treatment or inhuman treatment of punishment because of his emotional or mental health issues.

3. There is no substance to this ground. The Tribunal considered the applicant’s representative’s submission to which it referred in paragraph 63 of its reasons; and it made two findings in relation to it. The first is that although it accepted the applicant “may have psychological issues”, the Tribunal had “no information before it on which it can assess the extent or impact of any such issues and notes that the applicant has not availed himself of opportunities in Australia to address these issues”.[61] The second finding is the Tribunal in any event was not satisfied on the evidence before it that “the applicant has greater psychological issues than other drug users who may come before Sri Lanka’s court or corrections system or that he faces a real risk of cruel or inhuman or degrading treatment or punishment because of these psychological issues”.[62] In substance, therefore, the Tribunal did consider the applicant’s psychological issues when determining whether the applicant would suffer significant harm if imprisoned.

   [61] CB328-329, [63]

   [62] CB329, [63]

4. Ground 1, therefore, fails.

Ground 2

1. Ground 2 is as follows:

   The Tribunal committed jurisdictional error in failing to consider the significant harm the applicant would face by reason of drug use if jailed for an offence under the Immigrants and Emigrants Act.

   Particulars

   a. The Tribunal found that the applicant could be subject to imprisonment

   i.       for drug use or possession: [53], [58]; or

   ii.      if he is charged with an offence under the Immigrants and Emigrants Act: [82].

   b. The Tribunal considered the applicant’s drug treatment in jail if he was “convicted for a drug related offence”: [51].

   c. However, the Tribunal failed to adequately consider whether by reason of his drug use the applicant would be subject to significant harm under s 36(2A) of the Act if imprisoned for an offence under the Immigrants and Emigrants Act: cf [89].

2. This ground assumes that on the material before the Tribunal there arose the question of whether, having regard to the applicant’s drug use, the applicant would be subjected to serious harm if imprisoned under the IE Act. I do not accept that any such distinct issue arose or could reasonably be taken to have arisen on the material before the Tribunal. It is difficult to see how the applicant’s drug use could reasonably be found to lead to the applicant’s being subjected to significant harm. No such claim was articulated by the applicant or by the applicant’s representative.

3. In any event, the Tribunal found that the applicant’s short detention in prison on return to Sri Lanka would not amount to significant harm.[63] Given that the Tribunal had already found that the applicant would not be subjected to significant harm if imprisoned for drug offences,[64] I am not prepared to accept the Tribunal made the finding about whether the applicant would suffer significant harm if he were temporarily detained as a result of his being charged under the IE Act without having taken into account the applicant’s being a drug user.

   [63] CB329, 89]

   [64] CB328, [58]-[61]

4. Ground 2, therefore, also fails.

Ground 3

1. Ground 3 is as follows:

   The Tribunal misconstrued or misapplied ss 5 and 36(2A) of the Act

   Particulars

   a. The Tribunal found that the applicant could be subject to imprisonment

   i.      either for drug use or possession: [53], [58]; or

   ii.      if he is charged with an offence under the Immigrants and Emigrants Act: [82].

   b. The Tribunal found that prison conditions in Sri Lanka:

   i.      “do not meet international standards”: [60]; [87]

   ii.      have been reported as not meeting these standards because of “a lack of resources, overcrowding and poor sanitary conditions”: [87];

   iii.     have been reported as “likely to breach Article 3 of the European Convention on Human Rights which prohibits ‘inhuman or degrading treatment or punishment’”: [87];

   iv.      have been assessed by a formed UN Special Rapporteur on Torture as amounting to “degrading treatment”: [87].

   c. The Tribunal found that the Sri Lankan government has “acknowledged” the poor conditions in its prisons: [88].

   d. The Tribunal erred in asking itself the question whether there is “an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment” on the applicant: [88].

   e. The Tribunal erred in failing to hold that:

   i.      the deliberate act of imprisoning the applicant in conditions that involve pain or suffering comes within the meaning of an act by which pain or suffering is “intentionally inflicted”: s 5; and

   ii.      pain or suffering can “reasonably be regarded as cruel or inhuman in nature” where that pain or suffering amounts to cruel or inhuman treatment or punishment at international law.

   f. The Tribunal erred in holding (at [88]): “Poor prison conditions … do not give rise to significant harm under Australian law.”

2. This ground is premised on the view that the deliberate act of imprisoning a person in conditions that involve pain or suffering comes within the meaning of an act by which pain or suffering is “intentionally inflicted” even where there is no subjective intention to inflict such pain or suffering. That view is contrary to what the High Court held in SZTAL v Minister for Immigration and Border Protection.[65] The Court said:[66]

   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, intent. As Zaburoni confirms, a person intends a result when they have the result in question as their purpose.

   An intention of a person as to a result concerns that person's actual, subjective, state of mind. For that reason, as the plurality in Zaburoni were at pains to point out, knowledge or foresight of a result is not to be equated with intent. Evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn, but foresight of a result is of evidential significance only. It is not a substitute for the test of whether a person intended the result, which requires that the person meant to produce that particular result and that that was the person's purpose in doing the act.

   [65] [2017] HCA 34

   [66] [2017] HCA 34, at [26] and [27]

3. In those circumstances, the Tribunal was not required to hold that the deliberate act of imprisoning the applicant in conditions that involve pain or suffering comes within the meaning of an act by which pain or suffering is “intentionally inflicted”. It was open to the Tribunal to find, as it did, that the definition of “significant harm” is not satisfied in the absence of an actual subjective intention to harm a person.

4. Ground 3, therefore, also fails.

Matters raised at judicial review hearing

1. The first matter to consider is the applicant’s complaints about the conduct of his legal representative during the proceeding before the Tribunal. In my opinion that gives rise to no arguable case of jurisdictional error. The legal representative, of course, made an error by inadvertently copying in the Tribunal to the internal email of 1 February 2016. But there is nothing to suggest the Tribunal acted on it in any way.

2. The second matter is the applicant’s claim before me that his mental state was “zero” during the hearing of 20 June 2016. The evidence is clear that the applicant had a number of issues due to his having been a drug user and to his taking methadone and other prescription medications. That by itself does not raise an arguable case that the applicant was unable to meaningfully participate at the hearing on 20 June 2016. The Tribunal asked the applicant how he was feeling in response to which the applicant said “good”. The applicant had a legal representative at the hearing; and neither the applicant nor his legal representative suggested to the Tribunal the applicant was experiencing any difficulties such as to impair his ability to meaningfully participate in the hearing. Further, the Tribunal noted that it had taken into account the matters mentioned by the applicant’s doctor when conducting the hearing and assessing the applicant’s evidence.[67]

   [67] CB322, [22]

3. Finally, there is the applicant’s reference to the interpreter having appeared at the hearing before the Tribunal by telephone. The applicant said very little about this to me. The applicant did not submit to me that anything was not correctly interpreted, or that the applicant experienced any difficulties because the interpreter appeared by telephone. The applicant did not submit to me, and there is nothing in the material that suggests, the applicant or the applicant’s legal representative raised any issues with the Tribunal about the interpreter. In these circumstances, no arguable case of jurisdictional error arises only because the interpreter at the hearing before the Tribunal appeared by telephone.

Conclusion and disposition

1. The applicant has failed on each of the grounds stated in the application. The material before me otherwise does not disclose any arguable case of jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 27 April 2018