SZTAL v Minister for Immigration & Anor
[2015] FCCA 64
•24 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTAL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 64 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka including as a returnee who had departed illegally – risk of imprisonment on return – poor prison conditions – Tribunal deciding that the poor prison conditions were not intentionally inflicted and that the harm feared was not persecution – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 91R Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| An v Minister for Immigration (2007) 160 FCR 480 Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 Giorgianni v R (1985) 156 CLR 473 Minister for Immigration v MZYYL [2012] FCAFC 147, (2012) 207 FCR 211 Minister for Immigration v SZQRB (2013) 210 FCR 505 Prasad v Minister for Immigration (1985) 6 FCR 155 SZRSN v Minister for Immigration [2013] FCA 751 SZRTN v Minister for Immigration [2013] FCA 1156 SZSYP v Minister for Immigration & Anor [2014] FCCA 7 |
| Applicant: | SZTAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1521 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J King |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 31 October 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1521 of 2013
| SZTAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This case raises for consideration the significant question of whether harm which is not intentionally inflicted but which may be inflicted because of recklessness or indifference can constitute “significant harm” for the purposes of the complementary protection criterion in the Migration Act 1958 (Cth) (Migration Act). There is also a question of whether the case is affected by the recent decision of the Federal Court in WZAPN v Minister for Immigration[1].
[1] [2014] FCA 947
I heard this case at the same time as that of SZTCY v Minister for Immigration & Anor[2]. The application in that case was identical to the application in the present case and the factual circumstances are indistinguishable. The Tribunal decisions were made by the same member in the same terms. A third case heard by me separately[3] was also made in essentially the same terms by the same Tribunal member. The outcome in this case will determine the outcome in the other two cases.
[2] [2015] FCCA 85
[3] SZTGM v Minister for Immigration & Anor [2015] FCCA 87
The application before the Court is to review a decision of the Refugee Review Tribunal (Tribunal) made on 30 May 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts is derived from the submissions of the parties.
The applicant is a male national of Sri Lanka of Tamil ethnicity[4]. He arrived in Australia on 11 April 2012 as an offshore entry person[5]. He was 24 years old at the time of the Tribunal’s decision[6].
[4] Court Book (CB) 235 [22]
[5] CB 105
[6] CB 235 [20]
On 28 June 2012, the applicant made an application for a protection visa[7]. The applicant claimed, amongst other things, to fear significant harm involving detention, torture and other forms of mistreatment[8].
[7] CB 44
[8] CB 64-65 [26]-[30]
On 24 October 2012, a delegate of the Minister decided to refuse to grant the applicant a protection visa[9].
[9] CB 121
On 22 November 2012, the applicant applied to the Tribunal for review[10].
[10] CB 122
The applicant’s case before the Tribunal included claims and evidence that:
a)by departing Sri Lanka illegally, the applicant had committed an offence in contravention of articles 34 and 35 of the Immigrants and Emigrants Act 2006 (Immigrants and Emigrants Act), the penalty for which includes “mandatory” imprisonment for a period of between one year and five years[11];
b)the conditions in Sri Lankan prisons involve “deplorable” levels of overcrowding, poor sanitation, inadequate medical treatment, inadequate food, insufficient ventilation and sleep deprivation[12];
c)the conditions are “so poor that they will generally result in a grant of protection” because they involve inhuman or degrading treatment or punishment in breach of article 3 of the European Convention on Human Rights[13]; and
d)being imprisoned in those conditions involves a real risk of cruel or inhuman treatment or punishment and/or degrading treatment or punishment[14].
[11] CB 162-163 [104]-[106]. The Tribunal referred to the legislation as the Immigrants and Emigrants Act 1945
[12] CB 168-169 [126]-[128]
[13] CB 167 [124]
[14] CB 169 [129]
On 7 June 2013, the Tribunal decided to affirm the delegate’s decision[15].
[15] CB 219
The judicial review application
These proceedings began with a judicial review application filed on 4 July 2013. The applicant now relies upon a further amended application filed on 31 October 2014. There are two grounds in the application:
1. The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.
Particulars
a. The Tribunal found that the applicant will be imprisoned upon his return to Sri Lanka: [79].
b. The Tribunal found that prison conditions in Sri Lanka:
i. “may not meet international standards”: [70];
ii. “are poor and overcrowded”: [79];
iii. have involved “instances of torture”: [70];
iv. have involved “instances of … maltreatment and violence”: [70];
v. have been reported as “likely to breach Article 3 of the European Convention on Human Rights which prohibits ‘inhuman or degrading treatment or punishment’”: [70];
vi. have been assessed by a formed UN Special Rapporteur on Torture as amounting to “degrading treatment”: [70].
c. The Tribunal found that the Sri Lankan government has “acknowledged” the poor conditions in its prisons: [80].
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: [80].
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 [80]): “Poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law.”
2. The Tribunal erred in failing to apply the approach taken by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 in relation to the applicant’s claim to fear harm as a person who had left Sri Lanka illegally.
I have before me as evidence the court book filed on 14 August 2013. The applicant and the Minister both made written and oral submissions.
Consideration
Did the Tribunal misconstrue or misapply ss.5 and 36(2A) of the Migration Act?
After referring to country information concerning illegal departure from Sri Lanka, the Tribunal accepted that, because he departed Sri Lanka illegally, the applicant may be held in remand for a short period at Negombo Prison if he is charged with an offence under the Immigrants and Emigrants Act. At [70]-[72] the Tribunal said[16]:
[16] CB 246-247
Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence.[17] Prison conditions in Sri Lanka have been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”.[18] The US Department of State (USDOS), citing an assessment by a former UN Special Rapporteur on Torture, also reported that “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment”.[19]
[17] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1; UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March
[18] UK Home Office 2012, Sri Lanka: Operational Guidance Note, April, Section 3.9.11
[19] US Department of State 2011, Country Reports on Human Rights Practices in 2010 – Sri Lanka, 8 April, Section 1
The press report referred to above also quotes returnees as stating that:
“They put us in with the murderers and the drug addicts”….”We slept on the floor in line, our bodies pressed up against each other. We could not roll over."
"Some nights, we had to take turns sleeping because [there was] no space. One would sit up while the other slept on the ground. If you had money, you could pay a bribe to get more space.''
Sri Lankan authorities have acknowledged the poor prison conditions but lack of space and resources has inhibited reform.[20] President Rajapaksa has “called for an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases”. In 2011, the Sri Lankan government also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.[21]
[20] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1
[21] UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March; US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1
At [79], in the course of considering the applicant’s complementary protection claim, the Tribunal said:
The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer anxiety and discomfort whilst in prison. The applicant will be remanded for a short period of time, between one night to several nights or possibly up to 2 weeks. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.
The first ground of review focuses upon [80] of the Tribunal’s reasons where the Tribunal said:
Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. The country information above indicates that the poor prison conditions in Sri Lanka are due to a lack of resources which the government appears to have acknowledged and is taking steps to improve, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law.
In SZSYP v Minister for Immigration & Anor[22] I dealt with the general legal principles concerning the complementary protection criterion in the Migration Act. Counsel for the applicant in his submissions provided further useful observations on general principles of interpretation which I respectfully adopt.
[22] [2014] FCCA 7
Section 36(2)(aa) of the Migration Act commenced on 24 March 2012. As recognised by four members of the Full Federal Court in Minister for Immigration v SZQRB[23], the complementary protection regime seeks to give effect to Australia’s international obligations under international agreements that complement the Refugees Convention: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).
[23] (2013) 210 FCR 505 (SZQRB)
In SZQRB, Lander and Gordon JJ observed of s.36(2)(aa) that the subsection[24]:
recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.[25] … Previously, the Migration Act only recognised Australia’s obligations for protection under the Refugees Convention. After the introduction of s 36(2)(aa), the Migration Act recognised Australia’s wider obligations under the CAT and ICCPR.
[24] SZQRB at [99] (Lander and Gordon JJ)
[25] SZQRB (2013) 210 FCR 505 at [70] (Lander and Gordon JJ)
Justices Besanko and Jagot reached the same conclusion:
Australia also owes protection obligations by reason of the embodiment in ss 36(2)(aa), (2A), (2B) and (2C) of the Migration Act of aspects of the CAT and the ICCPR.[26]
[26] SZQRB at [313] (Besanko and Jagot JJ)
Having considered those and other amendments to the Migration Act, all five members of the Full Federal Court continued to apply the longstanding approach taken and repeated by the High Court in NAGV, M61 and later decisions, to the effect that the Migration Act[27]:
proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia’s international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason.
[27] SZQRB at [135], [192] (Lander and Gordon JJ), [310] (Besanko and Jagot JJ), [378] (Flick J), applying Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (M61) at 339 [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ)
The proper construction of s.36(2)(aa) of the Migration Act, and the provisions which give content to the expression “significant harm” appearing in that paragraph, are thus informed by Australia’s international obligations under the CAT and the ICCPR. To say that the text of the statute ultimately controls its construction is not to deny that the meaning of the text may legitimately be informed by the international obligations to which it gives effect. I accept, however, that unlike s.36(2)(a) of the Migration Act, s.36(2)(aa) does not directly incorporate any international treaty into domestic law[28].
[28] See Minister for Immigration v MZYYL (2012) 207 FCR 211 at [18]-[20]
It is now settled that the expressions “real risk” and “as a necessary and foreseeable consequence [of removal]” in s.36(2)(aa) together require nothing more nor less than the application of the same “real chance” test that is applied in respect of the refugee criterion in s.36(2)(a)[29].
[29] Minister for Immigration v SZQRB (2013) 210 FCR 505 at [246] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ), [342] (Flick J); Minister for Immigration v SZQRB [2013] HCATrans 323 at 16 (Crennan and Keane JJ); Explanatory memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth) at 11 [67]: “A real risk of significant harm is one where the harm is a necessary and foreseeable consequence of removal.”
The central expression “significant harm” is defined by s.36(2A) to refer to five categories of harm, which relevantly for the purposes of this case include “cruel or inhuman treatment or punishment”, and “degrading treatment or punishment”.
Cruel or inhuman treatment or punishment
Section 5(1) of the Migration Act defines this expression in the following terms:
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.
The above definition derives from the non-refoulement obligation implied under article 7 of the ICCPR.[30] According to the explanatory memorandum, “the purpose of expressly stating what ‘cruel or inhuman treatment or punishment’ does not include is to confine the meaning to circumstances that engage a non-refoulement obligation”.[31]
[30] Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth) at 5 [20]
[31] Ibid at 5 [19]
Degrading treatment or punishment
Section 5(1) of the Migration Act defines this expression in the following terms:
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.
This definition also derives from the non-refoulement obligation implied under article 7 of the ICCPR.[32]
[32] Ibid at 6 [24]
Article 7 of the ICCPR and prison conditions
Common to the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” is the requirement that the treatment or punishment be inconsistent with article 7 of the ICCPR, which prohibits such treatment.
The body established by the ICCPR to ensure compliance with that instrument by the States parties is the Human Rights Committee (HRC).[33] The International Court of Justice ascribes “great weight” to the HRC’s interpretation of the ICCPR.[34] Relevantly for the purposes of this case, decisions of the HRC recognise that article 7 of the ICCPR is violated by the following kinds of conditions in prisons and other places of detention:
a)extremely cramped or unsanitary conditions,[35] exposure to cold[36] or inadequate ventilation or lighting;[37]
b)lack of adequately nutritious food or water, lack of adequate clothing or a separate bed, threats of torture or death, lack of opportunity for adequate exercise;[38] and
c)denial of medical treatment[39].
[33] ICCPR articles 28 and 41
[34] Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) [2010] ICJ Rep 639 at 663-664 [66]
[35] Human Rights Committee, Portorreal v Dominican Republic, Comm No 188/1984, UN Doc CCPR/C/OP/2 (5 November 1987) at [11]
[36] Human Rights Committee, Conteris v Uruguay, Comm No 139/1983, UN Doc Supp No 40 A/40/40 (17 July 1985) at [10]
[37] Human Rights Committee, Brown v Jamaica, Comm No 775/1997, UN Doc CCPR/C/65/D/775/1997 (23 March 1999) at [6.13]
[38] Human Rights Committee, Mukong v Cameroon, Comm No 458/1991, UN Doc CCPR/C/51/D/458/1991 (21 July 1994) at [9.3]-[9.4]; Human Rights Committee, Tshisekedi v Zaire, Comm No 242/1987, UN Doc CCPR/C/37/D/242/1987 (2 November 1989) at [13]; Human Rights Committee, Mika Miha v Equatorial Guinea, Comm No 414/1990, UN Doc CCPR/C/51/D/414/1990 (8 July 1994) at [6.4]
[39] CB 208 [139]-[142]. Human Rights Committee, Brown v Jamaica, Comm No 775/1997, UN Doc CCPR/C/65/D/775/1997 (23 March 1999) at [6.13]; Rouse v The Philippines, Comm No 1089/2002, UN Doc CCPR/C/84/D/1089/2002 (25 July 2005) at [7.8]
As article 7 of the ICCPR is materially identical to article 3 of the European Convention on Human Rights, international decisions in relation to the latter also offer some, but limited guidance.
The foundation for the Tribunal’s consideration of ss.5(1) and 36(2A) was the applicant’s claim to fear harm by being involuntarily placed in “deplorable” conditions in a Sri Lankan prison. The Tribunal accepted that illegal departure was an offence under Sri Lankan law carrying the penalty alleged by the applicant[40].
[40] CB 244 [62]
The Tribunal expressly found that the applicant may be held in remand in a Sri Lankan prison for “up to 2 weeks”, and that he may “suffer” while in prison[41].
[41] CB 248 [79]
The Tribunal also made a series of critical findings respecting the conditions of Sri Lankan prisons. In particular, that prison conditions in Sri Lanka:
a)“may not meet international standards”[42];
b)include “overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms”[43];
c)include “instances of torture, maltreatment and violence”[44];
d)“have been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits ‘inhuman or degrading treatment or punishment’”[45]; and
e)“the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment”[46].
[42] CB 246 [70]
[43] CB 246 [70]
[44] CB 246 [70]
[45] CB 246 [70]
[46] CB 246 [70]
Having made the findings above respecting the poor conditions in Sri Lankan prisons, the Tribunal made an express finding that “Sri Lankan authorities have acknowledged the poor prison conditions”[47]. In the same context, the Tribunal went on to find that the then President of Sri Lanka had “called for an overhaul of the penal code” and for “courts to reduce prison congestion”[48].
[47] CB 246 [72]
[48] CB 246 [72]
The Tribunal reiterated those findings later in its reasons when it stated that “the government appears to have acknowledged” the poor prison conditions[49].
[49] CB 248 [80]
The central findings made by the Tribunal are at [80][50]. The Tribunal emphasised the requirement that the relevant pain or suffering or extreme humiliation must be “intentionally inflicted”. It also referred to a “lack of resources” for prisons.
[50] CB 248
The Tribunal then stated the following two propositions[51]:
a)There is no “intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation”.
b)“Poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law.”
[51] CB 248 [80]
The applicant contends that the propositions adopted by the Tribunal involve it asking itself the wrong question and misconstruing ss.5(1) and 36(2A) of the Migration Act. The applicant contends that the relevant intention is not that of the Sri Lankan government generally but the intention of the persons who may by their acts or omissions inflict suffering upon the applicant. The applicant further contends that it is too broad a proposition for the Tribunal to state that poor prison conditions involving inadequate resources and overcrowding do not give rise to significant harm under Australian law. The applicant contends that whether there is significant harm depends on whether there is an act or omission by which suffering is intentionally inflicted on the applicant. Plainly, the applicant could not be imprisoned except by the actions of others. The applicant seeks to reason by analogy from authorities on the mental element in criminal offences what the proper approach of the Tribunal should have been.
I prefer the submissions of the Minister on this important issue.
Counsel for the Minister also provided useful submissions on the relevant principles that apply in relation to the “complementary protection regime”, which was implemented by amendments to s.36 of the Migration Act[52].
[52] The amendments were introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) and only apply to an application for a protection visa that was:
In order to meet the criterion for the grant of a visa in s.36(2)(aa) of the Migration Act, the applicant was required to demonstrate that there are “substantial grounds for believing that, as a necessary and foreseeable consequence of the [applicant] being removed from Australia to a receiving country, there is a real risk that the [applicant] will suffer significant harm”. Section 36 (2A) in turn provides that a non-citizen such as the applicant will suffer significant harm if (relevantly)[53]:
[53] There is no suggestion that the applicant is claiming that he will be arbitrarily deprived of his life (s.36 (2A)(a)) or that the death penalty will be carried out on the applicant (s.36 (2A)(b))
…
(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.
Each of the types of “significant harm” referred to in the preceding paragraph are in turn defined in s.5 of the Migration Act referred to earlier. One can readily see that a common feature of the definitions of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” is that the harm be intentionally inflicted or caused. The definitions of “cruel or inhuman treatment or punishment”, “degrading treatment or punishment”, and “torture” also refer to “an act or omission”. This means that only an action or a failure to act would fall within the definition, which may be distinguished from a consequence of an act or an omission[54].
[54] SZRSN v Minister for Immigration [2013] FCA 751 at [47]
It is important to note that the kinds of harm in issue as defined by the Migration Act differ from those to which reference is made in the relevant human rights treaties and it is therefore necessary to exercise great care in drawing upon any international jurisprudence when interpreting ss.36(2)(aa) and 36(2B)[55]. Further, the issue of whether, in any given set of circumstances, certain conduct falls within the definition of “torture”, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” is largely a question of fact. As such, the Court’s ability to review a decision-maker’s finding that particular conduct does or does not constitute torture etc is limited. As Emmett J said in An v Minister for Immigration[56]:
...once the meaning of a word is determined, the question of whether the particular circumstances of the case fall within that word is one of fact for the relevant decision-maker: so long as the finding made by the decision-maker is open to it on the material before it, there would be no error of law that could constitute jurisdictional error.
[55] Minister for Immigration v MZYYL (2012) 207 FCR 211 at [18]-[20]. As Lander, Jessup and Gordon JJ said in MZYYL (2012) 207 FCR 211 at [18]-[20]:
The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria “that engage” Australia’s express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC) (collectively the International Human Rights Treaties): Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Sections 36(2B)(a) and (b) have adopted a different and contrary position. Sections 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.
Further, the test adopted in ss 36(2)(aa), (2A) and (2B) is significant harm, not irreparable harm, being the test referred to in the General Comment No 31 on the ICCPR (Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligations Imposed on State Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) at [12]), or serious harm, being the standard referred to and defined in s 91R of the Act.
It is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely ss 36(2)(aa) and 36(2B), construed in the way that has been indicated.
[56] (2007) 160 FCR 480 at [83]
The applicant’s contentions
Central to the applicant’s contentions are two propositions. The first is that the Tribunal erred because it only considered whether there was an “actual, subjective, intent” to cause harm to the applicant. Secondly, the applicant contends that the Tribunal erred because it failed to identify the relevant acts or omissions that were relevant to the inquiry about intention in circumstances where the applicant himself did not identify those acts or omissions.
For the reasons set out below, I reject both of these propositions.
First proposition - the issue of intention
The applicant submits that the Tribunal erred in its construction of the phrase “intentionally inflicted” because it failed to recognise that harm may be “intentionally inflicted” by a person in circumstances where “the person has knowledge of the probability of the occurrence of suffering, and probably also if the person merely foresees the possibility of its occurrence”.[57] Put another way, what the applicant can be taken to be asserting is that the Tribunal fell into error because it only considered whether there was an “actual, subjective, intent” to cause harm to the applicant (the harm being exposure to poor prison conditions) and failed to consider whether the Sri Lankan authorities had the necessary intent because they foresaw the consequences of their actions.
[57] Applicant’s submissions at [44]
In support of this submission, the applicant draws attention to a number of general authorities[58] dealing with the issue of intent in criminal law. It is difficult, however, to see how the statements in such authorities can in any way bear upon the construction of provisions of the Migration Act. The definitions in s.5(1) of the Migration Act on the one hand, and (for instance) s.13 of the Criminal Code (Tas)[59] on the other, are directed to very different things and there is a considerable danger in attempting to assimilate statements uttered in one context (where the issue of criminal responsibility is being discussed) into a very different statutory context. Such danger is particularly pronounced in the present case given that there is no textual basis for the applicant’s contention that the definitions in s.5(1) import considerations of criminal responsibility[60] rather than operating according to their natural and ordinary meaning. The structure of the relevant definition provisions, and in particular the use of the emphatic phrase “intentionally inflicts”, strongly indicates that there must be an actual, subjective, intention to cause harm.
[58] Vallance v R (1961) 108 CLR 56; He Kaw Teh v R (1985) 157 CLR 523; Giorgianni v R (1985) 156 CLR 473; Peters v R (1998) 192 CLR 493
[59] considered in Valance (1961) 108 CLR 56
[60] including concepts such as “reckless or wanton indifference”: see Vallance (1961) 108 CLR 56 at 68
The Minister’s position in this regard is consistent with the approach taken by Judge Emmett in SZSPE v Minister for Immigration & Anor[61]. In SZSPE (which is on all fours with the present case), the visa applicant claimed that he would be gaoled upon his return to Turkey because he was a conscientious objector and would face significant harm given the prison conditions. In considering the applicant’s claims, the Tribunal found that mere negligence is insufficient, having regard to the inclusion of the intention requirement, to amount to “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”. The Tribunal found that pain or suffering caused by overcrowding and other consequential problems in the Turkish prison system is not intentionally inflicted on prisoners, and therefore does not satisfy the definition of “cruel or inhuman treatment or punishment”. The Tribunal also found that the overcrowding and other consequential problems were not “intended to cause” extreme humiliation, as required by the definition of “degrading treatment or punishment”.
[61] [2013] FCCA 1989
In the result, Judge Emmett at [68]-[73] concluded that there was no error in the Tribunal’s approach. An appeal from Judge Emmett’s decision was dismissed[62]. The decision of Yates J in SZSPE, which is binding on this Court, forecloses my acceptance of the applicant’s submission about the proper approach to the intention provisions in the s.5(1) definitions.
[62] SZSPE v Minister for Immigration [2014] FCA 267 (Yates J)
Accordingly, I am bound to find that the Tribunal did not err in concluding that “intentionally inflicted” connotes the existence of an actual, subjective, intention on the part of a person to bring about the suffering by his or her conduct. Furthermore, although the definition of “degrading treatment or punishment” is phrased slightly differently (the definition refers to an act or omission that “causes, and is intended to cause, extreme humiliation”) there is no reason to suggest that something less than actual, subjective, intent is required. The relevant definitions in s.5(1) must be read harmoniously.
The Minister makes a further point, which I accept. Having found that any discomfort to which the applicant might be exposed would not be intentionally inflicted (bearing in mind that it was likely that he would only be detained for a very short period of time[63] and would not be targeted in the penal system[64] it was not open to the Tribunal to conclude that applicant might suffer “significant harm” as that term is defined. It matters not that the Tribunal may have noted[65] that there is some evidence of mistreatment of prisoners in Sri Lankan gaols. The role of the Tribunal, which it performed in the present case, was to undertake an “individual and fact-specific inquiry” so as to determine “how this applicant may be treated if he or she returns to the country of nationality”[66]. The Tribunal’s finding was that this applicant would not suffer significant harm.
[63] CB 248 [79]
[64] CB 247 [76]
[65] CB 246 [70]
[66] Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 at [78] per Gummow and Hayne JJ
Furthermore, it is of little moment that, for instance, there is evidence that prison conditions in Sri Lanka are reported to breach Article 3 of the European Convention on Human Rights[67] given that the “circumstances of this case are governed by the applicable provisions of the [Migration] Act”[68], which require that the harm be intentionally inflicted or caused. Nothing in the Full Federal Court’s holding in Minister for Immigration v SZQRB conflicts with what was said in MZYYL. While I do not accept the Minister’s submission that the Court cannot have regard to international jurisprudence on this issue, the assistance that can be gained from that jurisprudence must be limited in light of the Full Federal Court’s comments in MZYYL. The approach of Judge Nicholls in SZRTN at [45][69], which built upon what was said in MZYYL, is instructive.
[67] CB 246 [70]
[68] MZYYL at [20]
[69] Judge Nicholls said:
Second proposition – the identification of acts or omissions
The applicant also contends that the Tribunal fell into error because it failed to consider whether the gaolers, police officers etc “[knew] of the probable consequences of their acts and omissions, or [foresaw] the possibility of those consequences” and failed to “identify the acts or omissions relevant to the inquiry into intention”[70]. The applicant goes on to submit that because the Sri Lankan authorities were aware of the existence of poor prison conditions in Sri Lanka, s.5(1) required the Tribunal to identify the relevant acts or omissions that led to the existence of poor conditions and apply the intention provisions to the acts or omissions once identified[71].
[70] Applicant’s submissions at [47]
[71] Applicant’s submissions at [48]
I cannot accept the applicant’s submission. It was for the applicant to make his case[72]. It was for the applicant to identify the acts or omissions by which harm might be inflicted. It was for the applicant to provide evidence demonstrating that any harm he might suffer might be “intentionally inflicted”. The corollary of these propositions is that if it was the applicant’s case that the harm he feared met the definition of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” because the individuals involved (police officers, gaolers etc) foresaw the consequences of an identified act or omission (even though such individuals had no desire to inflict suffering upon the applicant), it was for the applicant to present evidence to make good that proposition.
[72] The applicant must establish his case to the satisfaction of the Tribunal, and that all statutory elements are made out: Minister for Immigration v Guo (1997) 144 ALR 567 at 596. A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-170
The applicant did not make any submissions identifying a particular act or omission; nor did the applicant identify any person who he feared would carry out an act or omission[73]. The Tribunal was not required to conduct an inquiry of its own to attempt to identify any such person. The Tribunal cannot be criticised for not considering the issue in light of the framework contended for by the applicant in circumstances where the applicant did nothing more than assert that he was at risk of harm in the form of exposure to poor prison conditions. It is also incorrect to assert that “[i]t was wrong for the Tribunal to ask itself about the intention of an amorphous conglomerate of entities such as ‘the Sri Lankan government’: it should have asked itself about the intention of an identifiable person who by his or her act or omission might inflict suffering on the applicant”[74]. At no stage did the applicant identify a person within the Sri Lanka government who by his or her act or omission might inflict suffering on the applicant.
[73] CB 167-169
[74] Applicant’s submissions at [36]
The applicant submitted that if he were returned to Sri Lanka, there was a real risk that he would be found to have committed an offence under articles 34 and 35 of the Immigrants and Emigrants Act and mandatorily imprisoned in conditions known to be poor. The Tribunal found that these conditions arose from “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities plac[ing] unbearable strains on services and resources”[75]. The Tribunal also found that the “Sri Lankan authorities” and “the [Sri Lankan] government” have acknowledged the poor prison conditions[76] and also found that the then President of Sri Lanka had “called for an overhaul of the penal code” and for “courts to reduce prison congestion”[77]. The Tribunal concluded that there was no “intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation”[78].
[75] CB 246 [70]
[76] CB 246 [72]
[77] CB 246 [72]
[78] CB 248 [80]
As noted above, the Tribunal’s reasons indicate that it found that the consequence of being imprisoned in poor prison conditions (being a consequence resulting from the inadequate allocation of infrastructure, services and resources) was not intended by the Sri Lankan authorities, hence the apparent reform attempt by the former President.
Two possibilities flow from this finding: first, either the Tribunal understood that the Sri Lankan government’s inability to manage the prisons adequately constituted the relevant acts or omissions for the purpose of s.5(1), which led to a result that the government and the authorities nevertheless did not intend; or secondly, the Tribunal understood that in the circumstances of a governmental inability to manage the prison system, there was no discernible “act or omission” in respect of which s.5(1) could be engaged. Nothing turns on these two possibilities in circumstances where the Tribunal has found that the poor prison conditions are not intended by the Sri Lankan government, bearing in mind that I am bound by the proposition that what is required is an actual, subjective, intention to cause harm.
The first ground in the further amended application fails.
Is the Tribunal’s decision affected by the Federal Court decision in WZAPN?
The applicant claimed to fear harm as a person who had left Sri Lanka illegally. The Tribunal considered that claim by reference to both the Refugees Convention at [62]-[73][79] and the complementary protection criterion at [74]-[84][80].
[79] CB 249
[80] CB 247-248
The Tribunal made findings to the effect that the applicant would be detained for a period of time[81], potentially “up to 2 weeks”[82], which the applicant contends, by reason of the decision of North J in WZAPN, must be accepted as satisfying s.91R(2)(a) of the Migration Act, thereby constituting “serious harm”. In this case, the harm would be inflicted for reasons of the applicant’s membership of the particular social group of “returnees or persons who left Sri Lanka illegally”[83]. The applicant contends that the Tribunal erred in law in failing to determine that claim according to the tests stated by North J in WZAPN.
[81] CB 244 [64]
[82] CB 248 [79]
[83] CB 249 [86]
The applicant further contends that the Tribunal’s consideration of the question of whether the Immigrants and Emigrants Act was a law of general application did not proceed by reference to the modern restatement of the tests applicable to that question referred to by North J in WZAPN at [51].
The Minister contends that the Tribunal’s consideration for the purposes of the Refugees Convention was not based upon the applicant’s membership of any particular social group. In oral argument, counsel for the Minister submitted that a particular social group of persons who left Sri Lanka illegally could not be constructed because the common characteristic of such a group would be the fear of persecution. While that may be so, other particular social groups may have been postulated such as “Tamil returnees to Sri Lanka” or “members of the Tamil diaspora returning to Sri Lanka”. The difficulty with those groups, however, was that the Tribunal had before it country information indicating that the Immigrants and Emigrants Act was applied without distinction based upon race or ethnicity.
At [73] the Tribunal said[84]:
The Tribunal is satisfied that the Immigrants and Emigrants Act 1945 is being applied to all persons who have departed Sri Lanka illegally or attempted to depart illegally, regardless of ethnicity. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason. The Tribunal finds that section 45 of the Immigrants and Emigrants Act 1945 is a law of general application and does not give rise to persecution under the Refugees Convention.
[84] CB 247
Therefore, the Tribunal reasoned that there was no nexus with the Refugees Convention because there was no relevant persecution and the issue of membership of a particular social group did not arise.
In my view, this case can be distinguished from WZAPN because there was no question of the law being applied arbitrarily (in the sense of being applied to some but not others). I accept the Minister’s submission that, given the Tribunal’s finding that the Immigrants and Emigrants Act is applied to all persons who depart Sri Lanka illegally, it cannot be said that the “essential and significant reason”[85] for the enforcement of the statute against the applicant would be a Convention reason. Another way of analysing the problem is to consider whether “different treatment of different individuals and groups” is appropriate and adapted to achieving some legitimate government object”[86]. That question did not arise as the Tribunal found that there is no differential treatment insofar as enforcement of the Immigrants and Emigrants Act is concerned.
[85] section 91R(1)(a)
[86] see Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 at [29]
In that respect, this case is relevantly indistinguishable from the decision of the Federal Court in SZSXY v Minister for Immigration[87] which is binding upon me. I note that the applicant in that case has sought special leave to appeal to the High Court[88].
[87] [2014] FCA 1183 at [22]. See also SZTBW v Minister for Immigration [2014] FCA 1277 at [20]
[88] cf MZZUO v Minister for Immigration [2014] FCA 1267 at [14]-[15]
The second ground fails.
A typographical error
At [85] the Tribunal said:
The Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka as a member of a particular social group of either failed asylum seekers or returnees or persons who left Sri Lanka illegally. The Tribunal also finds that the applicant’s status as a failed asylum seeker or a returnee who may be charged with improperly departing Sri Lanka does give rise to substantial grounds for believing that there is a real risk he will suffer significant harm upon being returned to Sri Lanka.
It is apparent that the word “not” is missing between the words “does” and “give” in the third last line of that paragraph. The error is a simple typographical one and does not impact upon the validity of the Tribunal decision.
Conclusion
The applicant has failed to demonstrate any jurisdictional error in the decision of the Tribunal. The Tribunal decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 February 2015
(a) made on or after 24 March 2012;
(b) not finally determined (within the meaning of subsection 5(9) of the Migration Act) before 24 March 2012
The difficulty for the applicant is also, in my respectful view, clear when regard is had to Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (per Lander, Jessup and Gordon JJ) (“ MZYYL ”). That Full Federal Court case involved consideration of the complementary protection provisions of the Act. The following is, in my respectful view, self explanatory and provides the answer to the applicant’s contention that the Tribunal should have looked at sources external to the Act:
“[20] It is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely ss 36(2)(aa) and 36(2B), construed in the way that has been indicated.
The appeal against Judge Nicholls’ decision was dismissed: SZRTN v Minister for Immigration [2013] FCA 1156.
207
25
3