SZTCV v Minister for Immigration & Anor - [2015] FCCA 1677

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCV v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1677

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – whether the Tribunal failed to apply the correct test – whether the Tribunal failed to take into account relevant considerations – whether Tribunal failed to address an imputed political opinion claim – consideration of WZAPN issue – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2)(aa) , 36(2A), 46A(2), 91R

BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Lesianawai v Minister for Immigration and Citizenship (2012) 131 ALD 27
Minister for Immigration and Border Protection v MZYTS [2014] FCAFC 114
Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211
NABE v Minister for Immigration and Multicultural Affairs (No.2) (2004) 144 FCR 1
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51
Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501
Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45
SZSPE v Minister for Immigration and Border Protection [2014] FCA 267
SZSYP v Minister for Immigration and Border Protection & Anor [2014] FCCA 7
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
Tauariki v Minister for Immigration and Citizenship (2012) 135 ALD 51
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
WZAQU v Minister for Immigration and Citizenship [2013] FCA 327
WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82

Applicant:

SZTCV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1715 of 2013

Judgment of:

Judge Lloyd-Jones

Hearing date:

30 May 2014

Delivered at:

Sydney

Delivered on:

19 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin on a direct access basis.

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the First Respondent:

DLA Piper

The Second Respondent:

The Second Respondent filed a submitting notice.

ORDERS

The Application, as amended, be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1715 of 2013

SZTCV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed in this Court on 25 July 2013 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1300991, a decision of Tribunal Member P. McIntosh dated 26 June 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the Minister filed on 2 September 2013 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”.
The applicant was granted leave on 11 September 2013 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely. The applicant filed:
a)An amended application on 27 September 2013; and
b)A further amended application on 30 May 2014. No leave was granted for the filing of the further amended application and the Minister opposed the granting of such leave. This is addressed below.

Background

In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a citizen of Sri Lanka who arrived on Christmas Island on 20 June 2012 (CB 85.3). On 18 September 2012 the applicant was informed that the Minister had exercised his power under s.46A(2) of the Migration Act to allow the applicant to apply for a protection visa (CB 5). The applicant applied for the visa on 18 September 2012 (CB 1-61). The delegate refused the visa on 13 February 2013 (CB 80-101). The applicant applied to the Tribunal for review on 20 February 2013 (CB 102-177). The Tribunal held a hearing on 12 April 2013 (CB 203-205).
The applicant claimed to fear persecution in Sri Lanka because of his Tamil ethnicity and suspected involvement with the LTTE. He claimed to have been born in 1995 in Mallaithivu, a LTTE stronghold during the civil war. He claimed that he was stopped and searched by soldiers on his way to school during the civil war, and that in 2010 and 2011 soldiers had visited his home and registered the occupants. He claimed that in 2012 men in plainclothes visited his house and questioned the occupants. He claimed that he was not mistreated, but was frightened and left Sri Lanka with a stepbrother in June 2012 (CB 219-222 at [23]-[47]). The Tribunal found that the applicant was not of any particular interest to the authorities, and rejected his claims to fear harm as a member of an alleged particular social group of “failed asylum seekers” (CB 223-225 [48]-[61]).
The Tribunal also considered the possibility that the applicant might be charged with illegal departure from Sri Lanka. The Tribunal found that while it was possible that the Applicant might be detained for up to three nights in “cramped and unpleasant circumstances” before being bailed, this would not amount to systematic and discriminatory conduct within s.91R(1)(c) of the Migration Act (CB 226 at [64]), or be “significant harm” within the “complementary protection” provisions in s.36(2)(aa) of the Act (CB 226-227 at [69]-[73]).

Current Proceedings

Leave was sought at the final hearing by the applicant to file a further amended application, which was opposed by the Minister. Notwithstanding, the Minister’s representatives had prepared submissions to address the added ground proposed to be relied upon by the applicant. Accordingly, leave was granted for the filing of the further amended application.
The further amended application pleads the following grounds of review:
1. The RRT erred in its understanding of the applicable law on what was degrading treatment or punishment and cruel or inhuman treatment or punishment. It accordingly failed to address the correct test when it made a finding on whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment.
2. The RRT failed to comply with Ministerial Direction Number 56 in contravention of s.499(2A) of the Migration Act 1958.
Particulars
The RRT failed to take into account the PAM 3 Protection Visas complimentary protection guidelines when it made a finding on whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment.
3. The RRT failed to take into account a relevant consideration.
Particulars
The applicant repeats the same particulars to ground 2.
4. The RRT failed to address a claim of fear of persecution for imputed political opinion.
Particulars
The RRT did not address the claim that he would be imputed to be a supporter of ProTamil political parties because the applicant’s family was

Applicant’s Submissions

The applicant contends that the Tribunal’s findings as to complimentary protection are infected with jurisdictional error. The applicant seeks the leave of the Court to file a further amended application in the form annexed to these submissions.
The applicant made claims that he feared significant harm in Sri Lanka as a returning failed Tamil asylum seeker. He claimed he would face incarceration on his return.
The applicant’s adviser submitted reports as to the overcrowding and lack of sanitation in the Sri Lankan prison system generally. This included the following from a UNCAT report (CB 198):
Prison conditions were poor and did not meet international standards due to overcrowding and the lack of sanitary facilities. In many cases prisoners reportedly slept out out on concrete floors and often lacked natural light or sufficient ventilation. According to prison officials and civil society sources prisons designed for approximately 11,000 inmates held an estimated 32,000 prisoners. More than 11,000 of these prisoners were awaiting or undergoing trial....Pre-trial detainees were often not held separately from those convicted....Authorities acknowledged poor prison conditions but noted a lack of space and resources as determining factors.
The material before the Tribunal also contained accounts given by asylum seekers returned by Australia. One account was of returnees held on remand in Negombo prison:
They put us with the murderers and the drug addicts” Mr Suresh said “We slept on the floor in line, our bodies pressed up against each other. We could not roll over.” In another cell another asylum seeker Balan said “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.
(CB 226)
The Tribunal accepted that there were substantial grounds for believing there is a real risk that the applicant would be detained in prison on return for up to several nights because of his illegal departure (CB 208 at [91]). The Tribunal accepted that the conditions in Negombo prison for previous detainees was very cramped and that they were accommodated with people they perceived to be “murderers” and “drug addicts”. The Tribunal accepted that these circumstances would be experienced by the applicant as disturbing and very unpleasant (CB 227 at [70]).
The applicant’s adviser submitted that the treatment that the applicant was likely to face in detention on return to Sri Lanka would be both “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” causing or intending to cause “extreme humiliation” (CB 202).
The Tribunal addressed this submission as follows:
I have also considered whether the applicant, by being detained and during his brief detention might be subjected to cruel or inhuman treatment or punishment. As noted above cruel or inhuman treatment or punishment is defined to mean an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person, or 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. degrading treatment or punishment is defined to mean an act or omission which causes, or is intended to cause, extreme humiliation which is unreasonable.
On the limited available evidence I am not satisfied that his treatment would involve a level of pain or suffering which could reasonably be regarded as “cruel or inhuman in nature”. For the same reasons, while I accept that the circumstances while detained may be experienced by him as degrading, the evidence does not indicate, and I am not satisfied, that they would be intended to cause “extreme humiliation which is unreasonable”.
(CB 227 at [71]-[72])

Jurisdictional Error

It is submitted that the Tribunal misunderstood what could “reasonably” be regarded as “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” within the meaning of those terms as defined in s.5(1) of the Migration Act.
The expression “significant harm” is defined by s.36(2A) of the Migration Act to refer to five categories of harm, which relevantly for the purposes of this case include: degrading treatment or punishment and cruel or inhuman treatment or punishment. Section 5(1) of the Migration Act defines the expressions:
Degrading treatment or punishment
“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.”
Cruel or inhuman treatment or punishment
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:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The statutory definition of cruel and inhuman treatment and punishment is informed by Australia’s international obligations under the CAT and the ICCPR (see SZSYP v Minister for Immigration & Anor [2014] FCCA 7 at [15-[19]).
The content of those obligations is in turn informed by the decisions of the Human Rights Committee established under the ICCPR (see Minister for Immigration and Citizenship v Anochie [2012] FCA 1440 at [40]-[50]). This is explicitly accepted in the PAM 3 complimentary protection guidelines (see Anochie (supra) at [22], [25]) which the Tribunal has been directed by the Minister to take into account (Direction 54 made under s.499 of the Migration Act and with which the Tribunal is required to comply by s.499(2A) of the Migration Act).
Decisions of the Human Rights Committee have accepted that detention with convicted criminals in extremely cramped and unsanitary conditions, even for a short period of time, can constitute both cruel or inhuman treatment and punishment, as well as degrading treatment or punishment. For example in Portorreal v Dominican Republic Comm No 188/1984, UN Doc CCPR/C/OP/2 (5 November 1987), the author “was arrested...taken to a cell at the secret service police headquarters from where he was transferred to another cell measuring 20 by 5 metres where approximately 125 persons accused of common crimes were being held, and where, owing to lack of space, some detainees had to sit on excrement. He received no food or water until the following day. On 16 June 1984, after 50 hours of detention, he was released. At no time during his detention was he informed of the reasons for his arrest.” The Human rights Committee found that author’s treatment during his 50 hours of detention amounted to both inhuman and degrading treatment (Portorreal (supra) at [11]).
Decisions by the Human Rights Committee and examples given in the PAM 3 Guidelines demonstrate that poor prison conditions which can amount to cruel or inhuman or degrading treatment or punishment, include, inter alia, overcrowding; unsanitary conditions; exposure to cold (Human Rights Committee Conteras v Uruguay, Comm No 1139/1983, UN Doc Supp. No 40 A40/40 [17 July 1985]); inadequate ventilation or lighting (Human Rights Committee Brown v Jamaica, Comm No 775/1997, UN Doc CCPR/C/65/D/775/1997 (23 March 1999)); inadequate bedding, inadequate clothing, inadequate nutrition and clean drinking water, lack of opportunity for adequate exercise (Human Rights Committee Mukong v Cameroon, Comm no 458/1991, UN Doc CCPR/C/51/D/458/1991 (21 July 1994); Mika Miha v Equatorial Guinea, Comm No 414/1990 UN Doc CCPR/C/51/D/414/1990 (8 July 1994)); and denial of medical treatment (Human Rights Committee Brown v Jamaica, Comm No 775/1997, UN Doc CCPR/C/65/D/775/1997 (23 March 1999)).
The Tribunal accepted the conditions on remand in Negombo prison were overcrowded and unsanitary as described in the report by Ben Doherty in the Sydney Morning Herald on 8 December 2012 (CB 226). The conditions described in that report included that:
a)remand prisoners shared their cells with convicted murderers and drug offenders;
b)the space in the cell was such that the prisoners had to sleep on the floor in line with their bodies pressed against each other so they could not roll over; and
c)in another cell there was not even enough room for all the prisoners to lie down, and some had to sit up;
These conditions were of the sort found by the Human Rights Committee to be both inhuman and degrading treatment.
No reference was made by the Tribunal to the fact that the PAM 3 guidelines instructed the Tribunal to have regard to international jurisprudence in construing those terms. No reference was made by the Tribunal to the various examples of relevant international jurisprudence that were extracted in the PAM 3 guidelines.
The Tribunal made no attempt to grapple with the issues of how the prison conditions of Negombo prison, as described in the Sydney Morning Herald article, were distinguishable from those found by the Human Rights Committee to amount to degrading treatment or punishment.
It is quite clear that the type of prison conditions the Tribunal accepted that the applicant would endure, even for a short period of time, were capable of being reasonably regarded as “degrading treatment or punishment” and “cruel or inhuman treatment or punishment” within the meaning of s5(1) of the Migration Act as exemplified by international jurisprudence.
The failure of the Tribunal to refer to this jurisprudence or the relevant parts of the PAM 3 guidelines indicates that the Tribunal misunderstood the applicable law.
The Tribunal’s application of the definition to the facts before it could not have been conducted according to law -because it misunderstood the applicable law.
Further, the failure of the Tribunal to either specifically acknowledge or otherwise demonstrate awareness of the direction in the PAM 3 guidelines that it interpret this part of the definition by reference to the international jurisprudence and to refer to the international jurisprudence considering when treatment would constitute degrading treatment or punishment in breach of Article 7 of the ICCPR demonstrates that the Tribunal did not, in substance, “take into account” those guidelines as required by Direction 56 (see WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 at [12]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [39]). This in turn meant that the Tribunal failed to take into account relevant considerations and failed to comply with section 499(2A) of the Migration Act which was a jurisdictional error (see for example Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45, Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501, Lesianawai v Minister for Immigration and Citizenship (2012) 131 ALD 27, Tauariki v Minister for Immigration and Citizenship (2012) 135 ALD 51).
Relief should be given in the terms sought in the application.
At the hearing of this matter on 30 May 2014 the Court granted leave for the applicant to provide written submissions on the fourth ground in the further amended application.

That ground is that the Tribunal failed to address a claim of fear of persecution for imputed political opinion as a supporter of Pro-Tamil political parties.

Submission on Substance

The claim was made on behalf of the applicant by the applicant’s adviser in her submissions to the delegate of 5 October 2012. The claim is set out on page 76 of Exhibit A1 in the fifth dot point under the heading “Why would Mr [S] be at risk on return to Sri Lanka?”.
The imputation was claimed to arise because the applicant’s family had a history of supporting pro Tamil parties. His step father was imprisoned and tortured in the past because of his involvement with the EPDP and his uncle has also stood for election in 2010 for the Tamil National Alliance (“TNA”) and his step brother helped him campaign.
It is submitted that it is unambiguously a claim of fear of persecution for imputed political opinion which is distinct to that of being an imputed LTTE supporter. The claim is made separately from the fear of persecution for an imputed political opinion as an LTTE supporter (which is the claim made in the third dot point on the same page).
It is submitted that it is a claim that is clearly articulated. It arose squarely for consideration.
In the adviser’s submission to the Tribunal at CB 192 the imputed political opinion claim is again stated as having 2 aspects “suspected LTTE links” and “an opponent of the ruling party” (second dot point under the heading claims).
It is well established that a failure by the Tribunal to consider a claim which, if sustained, might lead to a finding in the applicant’s favour, will be a failure to complete the exercise of the Tribunal’s jurisdiction and a jurisdictional error (see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244). This claim has these attributes.
There is no reference to the claim in the Tribunal’s decision.
The Tribunal characterises the applicant’s imputed political opinion claim as being wholly attributable to imputed LTTE support. At CB 219 Tribunal at [18] characterises the applicant’s claim as fearing persecution for being imputed with a political opinion relating to links with the LTTE.
The Tribunal was satisfied that the applicant’s credibility was not an issue in the matter (CB p.217). The claim was thus not impliedly disposed of by adverse credit findings.
These are the applicant’s submissions on the substance of the ground.

Leave

It is submitted that ground 4 in the further amended application is meritorious.
Ground 4 is a succinct ground and can be determined on the material that has been admitted into evidence.
The consequences for the applicant of leave not being granted to raise the new ground are potentially very serious (should the other grounds raised by him not find favour with the Court). The stakes are very high (see NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [50] per Madgwick J (Conti J agreeing).
It is in the interests of justice that the Court ensure that the Tribunal’s consideration of the applicant’s application be lawfully completed.
It is in the interests of justice that the case for the applicant be considered in its entirety before this Court, rather than having the prospect of a further ground being raised for consideration on any appeal without having been considered at first instance. This promotes the efficiency of the appeal process (see NAJT (supra) at [169]).
The prejudice which the respondent pointed to was the inadequate opportunity he had to respond to the ground, it having been raised the day prior to the hearing. That prejudice has been addressed by the opportunity to provide written submissions.

Minister’s Submissions

The proposed further amended application contains three grounds, all concerning the Tribunal’s complementary protection findings.
The first ground claims that the Tribunal “erred in its understanding on what was degrading treatment or punishment and cruel or inhuman treatment or punishment”, but does not indicate how the Tribunal is said to have so erred. The applicant’s submissions complain that the Tribunal did not refer to international authorities, especially decisions of the United Nations Human Rights Committee concerning prison conditions, albeit not those in Sri Lanka. However as pointed out in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 at [18]-[20] the complementary protection provisions are a code and use language different from those contained in international human rights treaties. The Tribunal correctly applied the terms of the legislation, consistently with MZYYL (supra) at [20]; see similarly SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 per Yates J at [40]-[43]. The Minister submits this ground fails.
Ground two claims that the Tribunal failed to apply the PAM 3 Complementary Protection Guidelines, as required by Direction 56 made under s.499 of the Migration Act. The Tribunal notes at [11] (CB 218) that it is bound by the Direction and states that it has taken the PAM 3 Complementary Protection guidelines into account to the extent that they are relevant. That is all that clause 2 of Direction 56 requires. Contrary to the applicant’s submissions, the PAM 3 guidelines do not require the Tribunal to engage in some explicit consideration of possibly relevant international authorities in every case. Firstly, the Direction cannot be inconsistent with the Migration Act: s.499(2), so the construction of the complementary protection provisions in MZYYL (supra) and SZSPE (supra) cannot have been altered by the Direction. And secondly, the decisions of the Human Rights Committee cited in the Applicant’s submissions do not concern Sri Lanka and at most indicate that prison conditions may breach provisions of international human rights treaties. The Tribunal nowhere denies that it is possible that prison conditions in Sri Lanka could amount to “significant harm” as defined in ss.5(1) and 36(2A) of the Migration Act, so there is nothing in its reasoning inconsistent with the decisions cited in the applicant’s submissions. Rather the Tribunal at [69]-[73] (CB 226-227) has not been satisfied on the evidence before it that the conditions which there was a real chance that the Applicant might experience in detention could be said to be sufficiently severe to fall within the definition. This is a factual conclusion which does not reveal any error: see similarly SZSYP (supra) at [44]. As the applicant has not established that the Tribunal failed to take account of the PAM 3 guidelines to the extent that they are relevant this ground fails.
Ground three complains that the Tribunal failed to take into account a relevant consideration, which fails for the same reasons as ground two.
Ground four of the application asserts the Tribunal failed to address a claim of persecution for imputed political opinion as a supporter of pro-Tamil political parties.
The applicant claimed in written submissions before the delegate to fear harm because of “his family history of supporting pro-Tamil political parties” (CB 76.8), noting activities of his stepfather, uncle and stepbrother. The applicant did not himself claim to be a supporter of such parties, or to have repeated the claim before the Tribunal. Rather, he claimed in written submissions before the Tribunal to fear persecution on the Convention ground of imputed political opinion (suspected LTTE links) and as an “opponent of the Ruling party” (CB 192.3), but does not appear to have explained why he would be perceived as an “opponent of the Ruling party”.
The Tribunal characterised the applicant’s claim relying on imputed political opinion as “he fears being imputed with a political opinion relating to links to the LTTE” (CB 219 at [18]). The Tribunal noted the applicant’s oral evidence that he did not know of anyone in his family or step-family who had been involved with or supported the LTTE, although his stepfather had had to lend them a vehicle and the family had been forced to provide food (CB 220 at [31]). The applicant does not appear to have made any reference to a family history of supporting pro-Tamil political parties or being an opponent of the Ruling party at the hearing (CB 222 at [47]).
In the circumstance there was no “substantial, clearly articulated argument relying upon established facts” with Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] that the applicant feared harm because of an imputed political opinion distinct from his claim to fear harm as having suspected LTTE links. There was no fact basis established for such a claim, nor any clear articulation of it, beyond the vague assertions in the applicant’s submissions noted above. It was therefore not a claim that the Tribunal was required to address: NABE v Minister for Immigration and Multicultural Affairs (No. 2) (2004) 144 FCR 1 at [68].
As there is no jurisdictional error by the Tribunal its decision is a “privative clause decision” within s.474 of the Migration Act.
The application should be dismissed with costs.

Consideration

Ground 1

Grounds 1, 2 and 3 of the application all concern the Tribunal’s complementary protection findings in respect of the applicant.
At [69] of the Decision Record, the Tribunal accepted there was a real risk the applicant would be detained in prison on return to Sri Lanka for up to several nights as a result of his illegal departure from Sri Lanka (CB 226). It then went on to make conclusive findings as to whether this detention would amount to significant harm for the purposes of the complementary protection criterion at [70]-[73] where it was ultimately not satisfied he would (CB 226-227).
Ground 1 claims the Tribunal has erred in its understanding of what was degrading treatment or punishment, and cruel or inhuman treatment or punishment. The submissions also complain that the Tribunal, in its Decision Record, failed to have regard to international authorities (see [21]-[22] above).
In MZYYL (supra), their Honours Lander, Jessup and Gordon JJ stated at [18]-[20]:
18. 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. Section 36(2B)(a) and (b) have adopted a different and contrary position. Section 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.
19. Further, the test adopted in s 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.
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 s 36(2)(aa) and (2B), construed in the way that has been indicated.
In SZSPE (supra), his Honour Yates J stated in respect of MZYYL (supra) at [43]:
43. The Full Court subsequently concluded (at [20]) that it was neither necessary nor useful to ask how the international law treaties would apply to the circumstances of the case before it. The same is true of the appellant‘s case before the Tribunal. The Tribunal was correct to proceed on the basis that its starting point must be the words of the Act itself.
The complementary protection provisions are, therefore, a code and use language different to that contained in international human rights treaties. Having regard to the Tribunal’s Decision Record, particularly [71]-[72] of the Decision Record and the authority of MZYYL (supra) and SZSPE (supra) above, I am satisfied the Tribunal did, in fact, correctly apply the terms of the legislation.
No error on the part of the Tribunal is demonstrated in this ground and it should be dismissed.

Ground 2

This ground alleges a failure on the part of the Tribunal to apply the PAM 3 Complementary Protection Guidelines (Exhibit “A3”), as is required under s.499 of the Migration Act. Section 499 states:
Minister may give directions
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
Direction 56 issued under s.499 on 21 June 2013 relevantly states:
1. This Direction applies to a decision-maker performing function or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa. This direction is subject to the Migration Act and Regulations and other applicable laws.
2. In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.
‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’
‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’
3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
At [11] of the Decision Record the Tribunal stated:
11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3: Refugee and humanitarian – Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration. I have done so.
Pursuant to s.499(2), Direction 56 cannot be inconsistent with the Migration Act. I accept the Minister’s submission that the construction of the complementary protection provisions in MZYYL (supra) and SZSPE (supra) cannot have been altered by Direction 56. Further, the decision of the UN Human Rights Committee cited by the applicant do not concern prison conditions in Sri Lanka, rather, at their highest they indicate that prison conditions in Sri Lanka could amount to “significant harm” as defined in ss.5(1) and 36(2)(aa) of the Migration Act.
The Tribunal, at [69]-[73] of its Decision Record, rather, was not satisfied on the evidence before it that the conditions in prison in Sri Lanka, in respect of which there was a real risk the applicant would experience, could be said to involve a level of pain or suffering that could be regarded as cruel or inhuman in nature, or be intended to cause “extreme humiliation which is unreasonable”, to fall within the definition of significant harm.
The Tribunal’s conclusions were factual in nature and open to it to make on the material before it and for the reasons it gave. The applicant has, therefore, failed to establish the Tribunal failed to take account of the PAM 3 Guidelines. Rather, on a fair reading, I accept the Tribunal has taken account of the Guidelines. This ground should be dismissed.

Ground 3

As Ground 3 is based on the same propositions as put forward in respect of Ground 2, noting the above findings, I am not satisfied this ground can be sustained. It should be dismissed.

Conclusion

I further note that the same grounds, though concerning a different applicant and factual premise, were put before Judge Cameron in SZTCU v Minister for Immigration & Anor [2014] FCCA 1600. His Honour dismissed them (grounds 3-5 in that case) and relevantly stated at [30]-[42]:
[30] Grounds three to five of the application involved an allegation that the Tribunal failed to consider the applicant’s claim to fear cruel, inhuman or degrading treatment or punishment if he returned to Sri Lanka. The applicant submitted that in addition to being at risk of torture in detention he would be subjected, by reason of the poor conditions in Sri Lankan gaols, to cruel, inhuman or degrading treatment there.
[31] The applicant submitted in connection with this allegation that s.499(2A) of the Act obliged the Tribunal to comply with Ministerial Direction No.56 which in turn required it to take into account, to the extent relevant, a section of Procedures Advice Manual 3 entitled “Complementary Protection Guidelines“ (“CP Guidelines“). The applicant referred to:
a) 11 of the CP Guidelines which relevantly said:
These types of significant harm [referred to in s.36(2A) of the Act]are those in relation to which a non-refoulement obligation may be owed to a non-citizen in Australia and are based on the General Comments and views of the United Nations Human Rights Committee (UNHRC) and the United Nations Committee against Torture (UNCAT);
b) to para.14 which relevantly said:
The terms ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are defined in s.5(1) of the Act. The definitions derive from, and require decision makers to turn their minds to, international jurisprudence;
c) to para.22, which concerned “Pain or suffering and ‘reasonably regarded as cruel or inhuman in nature’ “ and relevantly said:
Decision makers should interpret this part of the definition by reference to the international jurisprudence on the meaning of cruel or inhuman treatment or punishment in the context of Article 7 of the ICCPR;
d) to para.25 which relevantly said:
To meet the definition of degrading treatment or punishment, an act or omission must cause extreme humiliation. It is intended that the meaning of the term “extreme humiliation“ would be informed by international jurisprudence considering when treatment would constitute degrading treatment or punishment in breach of Article 7 of the ICCPR.
…
The UNHRC has stated that ‘for punishment to be degrading, the humiliation or debasement involved must exceed a particular level and must, in any event, entail elements beyond the mere fact of deprivation of liberty. For more information on when prison conditions may amount to degrading treatment or punishment, see Imprisonment/Prison conditions;and
e) to para 29, entitled “About lawful sanctions“, which relevantly said:
Imprisonment / Prison conditions
…
As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state or health or other status of the victim.
Examples of conditions which have been held to constitute breaches of Article 7 include:
• extremely cramped or unsanitary conditions, exposure to cold or inadequate ventilation or lighting
• 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
…
The existence of one relevantly minor condition (for example, a small cell) may not be sufficient to breach Article 7. However, the accumulation of a combination of poor or unreasonably restrictive conditions (for example, a small cell, overcrowding, prolonged detention and lack of opportunities for exercise) may raise the severity of the treatment above the necessary threshold.
(References omitted)
[32] The applicant submitted that in its reasons the Tribunal failed to refer to international jurisprudence or to demonstrate an awareness of the direction in the CP Guidelines that such jurisprudence be taken into account. In that context he referred to para.87 of the Tribunal’s reasons where it was said:
‘Significant harm’ [for the purposes of the complementary protection tests] is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
The applicant submitted that the Tribunal’s statement that the statutory definition was “exhaustive“ indicated that it had not taken the CP Guidelines into account and had thus misunderstood the applicable law.
[33] The applicant also referred to his advisers’ submissions to the Tribunal of 10 January 2013. At pages 14 and 15 of those submissions the applicant’s advisers stated:
The report by the UNCAT also details the degrading conditions faced by individuals held in detention in Sri Lanka as it noted:
The Committee is concerned at the deplorable levels of overcrowding and poor conditions prevailing at police stations and prisons, especially the lack of hygiene, inadequate medical care, the non-separation of convicted and remand prisoners and the failure to keep adult detainees and juvenile offenders separate, as reported by the Special Rapporteur on the question of torture [references omitted]. In this respect, the Committee regrets the absence of information provided by the State party on measures taken to improve conditions of detention for those held on remand and for convicted persons.
The degrading conditions experienced by detainees would extend to those who have been arrested for offences including the illegal departure from Sri Lanka. This has been confirmed in recent news articles on the fate of failed asylum seekers returned to Sri Lanka from Australia, like the one referred to above, that reports on the poor conditions including the overcrowding.
[34] Later in that submission they argued:
… [the applicant] would face a risk of harm of a type that would constitute degrading treatment or punishment as defined under s36(2A)(e) of the Act on the basis that:
• The UN CAT’s recent report and other country information relating to the conditions faced by detainees in Sri Lanka supports there is[sic]substantial grounds for believing there is a real risk [the applicant] would face detention on his return and as a result would face a real risk of extreme humiliation that is unreasonable. Such treatment, as referred to in the UN CAT report above, includes facing overcrowded conditions with a lack of proper hygiene and medical facilities. This would go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
• The harm feared by [the applicant] would be intentionally inflicted on him in that the Sri Lankan authorities are either deliberately creating the conditions being faced by detainees in their detention centres or are deliberately failing to improve such conditions; and
• Like torture, degrading treatment or punishment is also prohibited under the Sri Lankan Constitution pursuant to Article 11 and so the use of degrading treatment or punishment could not be seen to ever be inherent in or incident to anylawfulsanction in Sri Lanka. …
(Emphasis in original)
[35] The Tribunal’s findings on that issue were at paras.93 and 94 of its reasons:
The applicant’s submissions of 10 January 2013 refer to the prison conditions in Sri Lanka and, I accept that, many reputable reports indicate that prison conditions in Sri Lanka do not meet basic international standards. I accept that independent sources indicate that the conditions of detention the applicant will face while detained will be crowded, cramped and unpleasant. However, having regard to the characteristics of the victim, the duration of the detention, and the country information about prison conditions I am not satisfied that, in all the circumstances of the case it reaches the level of severity that amounts of ‘significant harm’ for the purpose of the complementary protection.
I therefore do not accept that, having regard to my findings about the circumstances and duration of the detention the applicant will face, there is a real risk that the applicant will be subjected to pain and suffering that could reasonably be characterised as ‘cruel or inhuman treatment or punishment’ within the meaning of subsection 5(1) of the Act and nor do I accept that he will face conditions of detention which could reasonably be regarded as amounting to degrading treatment or punishment.
[36] The applicant submitted that a further inference that the Tribunal had failed to consider the CP Guidelines could be drawn from the fact that those guidelines had a section on prison conditions, quoted above at [31], to which express reference was not made even though it referred to an international decision which dealt with a situation analogous to his own, involving extremely cramped and unsanitary prison conditions, and to another which dealt with threats of torture or death and a lack of water, adequately nutritious food, clothing, separate beds and opportunities for adequate exercise. The applicant submitted that, absent references to that section of the CP Guidelines, the Court could not be satisfied that the Tribunal had engaged in an active intellectual process in relation to those guidelines.
[37] The applicant also submitted that if the Tribunal had had regard to the CP Guidelines and the cases they cited, it could not have said, as it did at para.94 of its decision, that the prison conditions the applicant would face in Sri Lanka would not amount to cruel, inhuman or degrading punishment.
[38] In summary, the applicant submitted that the Tribunal had:
a) misunderstood the applicable law;
b) failed to comply with Ministerial Direction No.56; and
c) failed to take relevant considerations into account, namely international jurisprudence and the issues it raised.
Consideration
[39] In para.9 of its reasons the Tribunal said:
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration -PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - to the extent that they are relevant to the decision under consideration.
The Tribunal also referred to the CP Guidelines at para.10 of its decision when discussing the “real risk“ test to be applied to the complementary protection criteria. As with the Tribunal’s statement that it had considered the applicant’s advisers’ submissions of 10 January 2013, given that the Tribunal expressly referred to its obligations under the ministerial direction and the CP Guidelines, it should not lightly be inferred that the Tribunal failed to discharge those obligations.
[40] Dealing first with the applicant’s allegation that the Tribunal’s statement in para.87 of its reasons that the statutory definition was “exhaustive“ indicated that it had not taken the CP Guidelines into account and had thus misunderstood the applicable law, I am not persuaded that it can be inferred from the way the Tribunal expressed itself in that paragraph that it did not consider the CP Guidelines. Those guidelines do not purport to define the component elements of “significant harm“. Rather, they discuss matters which may be taken into consideration when determining whether a particular circumstance amounts to significant harm. Consequently, the Tribunal was not wrong to say that the terms were defined by the statute, not least because s.499(2) subordinated the ministerial direction to the terms of the Act.
[41] The applicant placed considerable emphasis on the fact that the CP Guidelines contained a section dealing specifically with imprisonment and prison conditions, those guidelines saying in para.29, as quoted earlier in these reasons:
As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.
In the second and third sentences of para.93 of its reasons the Tribunal said:
… I accept that independent sources indicate that the conditions of detention the applicant will face while detained will be crowded, cramped and unpleasant. However, having regard to the characteristics of the victim, the duration of the detention, and the country information about prison conditions I am not satisfied that, in all the circumstances of the case it reaches the level of severity that amounts of ‘significant harm’ …
[42] I infer from the choice of words in those latter sentences, particularly “victim“ and “level of severity“, that the Tribunal had had regard to para.29 of the CP Guidelines. As the international jurisprudence to which the applicant particularly referred was cited in that paragraph of the CP Guidelines, I conclude that the Tribunal’s consideration of that paragraph included a consideration of the international jurisprudence referred to there. The Tribunal was not relevantly required to do more. Neither the ministerial direction nor the CP Guidelines required the Tribunal to look first at the guidelines and then separately at international cases. The guidelines simply required the Tribunal to have regard to international jurisprudence. As that jurisprudence was set out in the guidelines themselves, the Tribunal discharged its relevant obligation by considering those guidelines.

Ground 4

This ground alleges that the Tribunal failed to address a claim of persecution raised by the applicant for imputed political opinion as a supporter of pro-Tamil political parties.
In written submissions prepared by the applicant’s adviser for the Protection visa hearing before the delegate, the following claims were advanced:
We submit because of the following reasons [SZTCV] faces a real chance of persecution on his return to Sri Lanka:
…
The Sri Lanka authorities perceive his brother [XX] of having links to the LTTE. The authorities required him to report to the authorities on a weekly basis because of his suspected ties to the LTTE;
His family history of supporting pro Tamil political parties. His step father was imprisoned and tortured in the past because of involvement the EPDP and his uncle has also stood for election in 2010 for the Tamil National Alliance and his step brother [XX] helped him campaign;
…
(CB 76)
The applicant’s adviser then made the following written submissions in respect of the hearing before the Tribunal:
[SZTCV] … is suspected of being a LTTE supporter and, through his family, actively providing shelter to them. … The fact is his stepfather did provide material assistance to the LTTE such as motor transport vehicles. His stepfather had two of these vehicles to use in his fishing business.
At [31] of its Decision Record, the Tribunal stated:
31. He did not know if anyone in either his birth family or step-family had been involved with or supported the LTTE willingly in any way during the war although, like many other Tamils, his stepfather had had to lend them a vehicle and the family had been forced to provide food. He said he was close to his mother and he thought she would have told him if anyone in the family had willingly helped the LTTE. …
(CB 220)
At [44] the Tribunal stated:
44. As to if there had been any problems for his family since he left Sri Lanka, he indicated he was unaware of any.
(CB 222)
At [51] the Tribunal stated:
51. … There is also no evidence that anyone in his family was or is suspected of being an LTTE sympathiser.
The initial claims advanced before the delegate in respect of the applicant’s family’s current or previous support of the LTTE or other pro-Tamil political parties was abandoned before the Tribunal. The claim that was put before the Tribunal in written submissions was much narrower, however, at the hearing this was qualified further (see [xx] above).
Having regard to the above extracts from the Court Book and Decision Record, I accept the Minister’s submission that there was no “substantial, clearly articulated argument relying upon established facts” in the manner set out in Dranichnikov (supra) at [24] that the applicant feared harm based on an imputed political opinion as distinct from his claim to fear harm as a result of having suspected LTTE links.
In NABE (supra) at [68] the full Court stated:
68. Although such a claim might have been seen as arising on the material before the tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the tribunal. In our opinion the judgment that the tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective state protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.
I am not satisfied a substantial clearly articulated argument relying upon established facts was advanced by the applicant as contended. Accordingly, there was not a claim before the Tribunal that it was required to address. This ground cannot be sustained and should be dismissed.

The “WZAPN” Issue

On 3 September 2014, the Federal Court of Australia delivered judgment in the matter WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 per North J.
On 1 October 2014, the Minister filed in the High Court of Australia an Application for Special Leave to Appeal from the judgment of North J in WZAPN (supra). Consequently, as other proceedings addressing this specific issue had requested the reserved judgment not be finalised until the High Court decision was known, I have adopted that approach for this current matter.
Failed Protection visa applicants of Tamil ethnicity returning to Sri Lanka voluntarily or by escort on temporary travel documents from a Western country will be questioned by the authorities and may be arrested and held on remand for a few days whilst waiting for a court appearance facing charges including possible breaches of the Immigration and Emigration Act 1949. Various country reports together with a Sydney Morning Herald article of 8-9 December 2012 indicate that people are detained possibly for 3 days after which they are bailed for a future court appearance. The hearing may levy a fine based on a law of general application relating to illegal departure from Sri Lanka. Country information indicates that there is some evidence demonstrating that the law is discriminatorily applied to people of Tamil ethnicity. As the entry point is usually Colombo, remand would be served in Negombo Prison which is cramped and unsanitary. The question arises as to whether being questioned, detained for up to 3 days and significant fines are of the type and seriousness of harm amounting to persecution as meant by s.91R of the Migration Act.
In WZAPN (supra), North J held that the application of s.91R did not permit a quantitative assessment of the nature of the harm required to be considered by that section. His Honour described the approach taken by the Reviewer at [18], where he states:
18. The reviewer accepted that there was a real chance that the applicant would be questioned periodically and probably detained for short periods when he failed to provide identification, but held that the frequency and length of the detention, and the nature of the treatment he would receive in detention, did not amount to serious harm within s 91R(2)(a), (b) or (c). The reviewer concluded that on this analysis, the nature of the detention was not sufficiently significant and thus did not constitute serious harm … In approaching the matter in this way, the reviewer made a qualitative assessment of the nature of the harm caused by the detention.
The argument was recorded by his Honour as:
20. The applicant contended in his original written submissions, and in oral submissions, that the reviewer wrongly applied a qualitative assessment to the nature of the harm. The applicant argued that s 91R(2)(a) is concerned with the threat, in the sense of a risk, of harm to life and liberty, whatever the nature of the harm. Whether there is a threat depends on an assessment of the likelihood of harm happening. But once that threat is established, s 91R(2)(a) operates so that the threat to life or liberty amounts to serious harm irrespective of the nature or extent of the potential harm to life or liberty. Thus, there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. Consequently, once the reviewer found that the applicant was at risk of detention, serious harm was established within the meaning of s 91R(2)(a) irrespective of the significance of the circumstances attending the detention.
That argument was accepted by his Honour at [30], [44] and [45] where his Honour stated:
30. The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.
…
44. In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.
45. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.
North J’s decision in WZAPN v Minister for Immigration and Border Protection (supra) has been considered in the following Full Federal Court decisions;
a)SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 per Robertson, Griffiths and Mortimer JJ;
b)BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 per Robertson, Griffith and Mortimer JJ; and
c)SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 per Robertson, Griffith and Mortimer JJ.
After a detailed consideration of the approach of the construction of s.91R and to the test in s.91R(1) and (2) their Honours found in SZTEQ at [58]-[60]:
58. Another aspect of the structure of s 91R(1), which we have touched on above, concerns the fact that it contains three separate and cumulative conditions for persecution to be established for the purposes of the Migration Act and the regulations, of which the requirement of serious harm is only one. We acknowledge that matters such as the length of detention, its frequency, purpose and character may also arise in determining whether the reason for the detention, which must be a Convention reason, is the essential and significant reason for the persecution (as required by s 91R(1)(a)) or involves systematic and discriminatory conduct (as required by s 91R(1)(c)). However, this does not mean that such matters may not also arise for consideration and evaluation in relation to the requirement of serious harm within s 91R(1)(b).
59. Unlike North J in WZAPN, we do not consider the absence of adjectival qualification in s 91R(2)(a) to be of significance, given the context of the provision as a whole. Rather, the absence of an adjective indicates that a threat to “liberty“ is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning. In this context, “liberty“ is a nuanced concept which takes its meaning from the context in which it appears, namely the requirement that the persecution involve serious harm, as is made clear in s 91R(1).
60. With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397:
… the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.
In the conclusion of SZTEQ at [154]-[155], their Honours state:
154. For the above reasons, and with great respect to North J, we do not consider that WZAPN correctly decided the construction of s 91R(2)(a). In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s 91R(1)(b) and Art 1A(2).
155. As the above analysis has sought to show, even if there was no error in his Honour’s examination of ss 91R(1) and (2) and the Convention concept of persecution by reference to “international human rights standards“ (see his Honour’s reasons at [43]), an issue which need not be determined in this appeal, contrary to his Honour’s reasoning, neither those standards, nor the jurisprudence and commentary about those standards in refugee decision-making supports the proposition that any deprivation of liberty must constitute serious harm for the purpose of the Convention.
On 17 June 2015 the High Court unanimously allowed an appeal from the Federal Court: see Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22. It also unanimously dismissed an appeal from the Federal Court which was WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82. The High Court held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself and without more, a threat to liberty within the meaning of s.91R(2)(a) of the Migration Act.

Conclusion

None of the pleaded grounds in further amended application can be sustained. On a fair reading of the evidence before the Court, no error on the part of the Tribunal is apparent.
I am satisfied the application should be dismissed with the applicant ordered to pay the Minister’s costs.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate:

Date: 19 June 2015