SZUOL v Minister for Immigration

[2016] FCCA 1983

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1983

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether Tribunal failed to consider a claim or integer of a claim– whether Tribunal should have considered attributes cumulatively as revealing a particular social group – whether Tribunal erred in consideration of complementary protection criteria – whether poor prison conditions can be intentionally inflicted such that it constitutes “significant harm” for the purposes of s.36 – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 476

Federal Circuit Court of Australia Act 1999 (Cth), s.42

Cases cited:

Callegos Mendoza v Minister for Immigration & Anor [2016] FCCA 1142

Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225

Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387
SZNOE v Minister for Immigration and Citizenship [2012] FCA 96
SZUXM v Minister for Immigration and Border Protection [2015] FCA 1514
SZTAL v Minister for Immigration & Anor [2015] FCCA 64
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: SZUOL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1718 of 2014

Judgment of: Judge Nicholls

Hearing date: 17 May 2016

Date of Last Submission: 17 May 2016

Delivered at: Sydney

Delivered on: 2 August 2016

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Success Lawyers & Barristers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 24 June 2014, amended on 3 October 2014 and further amended on 17 May 2016 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1718 of 2014

SZUOL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 June 2016, and ultimately amended on 19 May 2016, seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”) made on 28 May 2014, which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed and tendered, by the Minister (“the Court Book” – “CB”, “RE1”) and the affidavit of Edilbert Naveenan Rajadurai, translator and interpreter, made on 24 September 2014, annexing a transcript (“T”) of the hearing before the Tribunal.

Background

1. The applicant is a national of Sri Lanka who arrived in Australia on 19 July 2012 (CB 102). He applied for a protection visa on 20 November 2012 (CB 1 to CB 93). He was assisted by a registered migration agent (CB 2). The applicant’s claims were set out in his Statutory Declaration declared 12 November 2012 (CB 40 to CB 42). The delegate refused the application on 12 July 2013 (CB 95 to CB 118).

2. The applicant applied for review to the Tribunal on 22 July 2013 (CB 121 to CB 128). He continued to be represented. The applicant’s representatives made lengthy written submissions to the Tribunal dated 12 December 2013 (CB 153 to CB 221). On 11 March 2014, he appointed another migration agent to represent him. The new agent made further written submissions sent to the Tribunal on 7 April 2014, the day before the hearing (CB 230 to CB 255). The applicant gave evidence to the Tribunal on 8 April 2014 (CB 257). The representative was present. The applicant provided documents to the Tribunal at the hearing in support of his claims (CB 260 to CB 335).

3. While the applicant submitted a large volume of material to the delegate and the Tribunal, his claim to fear harm from the Sri Lankan authorities, and associated paramilitary groups, can in essence be said to arise from his being a young Tamil male from an area formerly controlled by the Liberation Tamil Tigers Eelam (“LTTE”) in the east of Sri Lanka, and that he would be perceived as a former member or supporter of the LTTE. The applicant also claimed to have worked for the Tamil National Alliance (“TNA”). The applicant gave evidence of claimed past instances of harm or fear of harm. The applicant also claimed to fear harm because he had illegally fled to a western country seeking asylum and would return as a failed asylum seeker.

4. The Tribunal stated in its decision record that it was sensitive to the difficulties faced by asylum seekers when assessing the applicant’s credibility. The Tribunal found, however, that the applicant’s claims contained “some exaggeration and embellishments” ([23] at CB 343 to [24] at CB 344).

5. The Tribunal accepted the applicant’s evidence that he came from a village that was in an area that had never been under the control of the LTTE. The Tribunal found that he came from the “Eastern Province”, but had lived in an area controlled by the Sri Lankan army and not from an LTTE stronghold area as claimed by his migration agents ([25] – [26] at CB 344).

6. The Tribunal found that the applicant’s younger brother is not suspected of being linked to the LTTE or a supporter of the LTTE after being interrogated and beaten by the Sri Lankan Army in 2008/09, as the authorities would not have released him, and further, that his brother could not have been able to live with “no problems” after his release if this was the case as the applicant claimed ([27] – [28] at CB 344 and [52] at CB 348).

7. The Tribunal found that the applicant had no difficulties in obtaining a passport from the authorities, for which he had applied in 2011 ([29] at CB 344).

8. The applicant gave evidence at the interview with the delegate concerning his claimed involvement with the TNA. This claim was not made in his protection visa application. In particular, the reference to the applicant’s claimed involvement with a local politician and participation in a local 2011 election emerged at the interview ([30] at CB 345 to [44] at CB 347).

9. The Tribunal accepted that the applicant had assisted a local politician, who was associated with the TNA, to campaign in local elections. However, the Tribunal did not accept that this low level minor political activity caused him “any detriment” in Sri Lanka or that this led to his being imputed with any pro-LTTE or anti-government opinion, as had been claimed by his agents ([64] at CB 350 to [68] at CB 351).

10. The Tribunal did not accept the applicant’s evidence that he and his family members had been constantly harassed by the Sri Lankan authorities in the past, nor that friends had been “kidnapped” ([51] at CB 348 to [54] at CB 349).

11. The Tribunal did not accept the applicant’s claims that his family had been harassed by the authorities since his departure in an attempt to locate him. The Tribunal found the applicant’s evidence in this regard to be “confused and inconsistent” and that some of his account was “implausible” ([45] at CB 347 to [50] at CB 348).

12. The Tribunal accepted that the applicant had left Sri Lanka without a valid travel document and left illegally in breach of the Sri Lankan Immigrant and Emigrants Act. It also accepted that if he returned to Sri Lanka the authorities, would, in the circumstances assume that he was a failed asylum seeker ([55] – [56] at CB 349).

13. In this context, the Tribunal set out the elements of claimed fear as stated by the applicant himself, and as made on his behalf by his former and “current” migration agents. Given the ground of the amended application the following is relevant ([57] – [58] at CB 349):

    “[57] In his protection visa application the applicant stated that he feared:

    - being kidnapped harmed or mistreated by Sri Lanka army or associated paramilitary groups because:

    - he was a young Tamil male

    - he will be suspected of being a former member or supporter of the LTTE

    - he had fled to a Western Country seeking asylum

    - He would be accused of wanting reform the LTTE

    [58] His previous agents submitted that he feared serious harm or even death because:

    - He was imputed with pro- LTTE anti-government  opinions

    - He was a supporter of TNA

    - He attempted to seek asylum in a western country this act would mean he would be viewed as a dissident

    - He would be suspected of being in contact with Tamil groups whilst abroad

    - He was a member of the particular social groups of

    - young Tamil male and

    - failed asylum seeker from a western country

    [59] His current agent submitted that he was at risk of persecution because:

    - he is a young Tamil male 

    - he is a Tamil from a former LTTE area

    - he will be imputed with pro-LTTE anti-government  opinions because of his involvement in the TNA

    - The authorities will believe that he has spoken out against them in attempting to claim asylum

    - Because he was absent for a long time he would be visited by the authorities”

14. The Tribunal then considered the applicant’s claims to fear harm as they were said to arise from these elements:

    1)Fear of harm as a young Tamil male from the east ([60] – [63] at CB 350).

    2)Fear of harm as a result of his involvement in the TNA campaign ([64] at CB 350 to [68] at CB 351, and see [11] above).

    3)Fear of harm as a failed asylum seeker ([69] at CB 351 to [81] at CB 355).

    4)Illegal departure ([82] at CB 355 to [87] at CB 357).

15. The Tribunal found that none of these fears rose to a well-founded fear of persecution ([101] at CB 359). The Tribunal separately considered the complementary protection criterion for the grant of the visa ([88] at CB 357 to [100] at CB 359).

Before the Court

1. It is of note that the grounds of the application made initially to the Court on 24 June 2014 were prepared by the applicant himself. On 20 August 2014 orders were made by consent addressing procedural matters to facilitate the preparation of the case for final hearing.

2. On 3 October 2014 notice was given that the applicant had obtained legal representation in this matter. The applicant subsequently filed an amended application on 3 October 2014 prepared by solicitors who continue to represent the applicant before the Court. That application abandoned the four grounds of the originating application and substituted the following two grounds:

   “1. The Tribunal has committed jurisdictional error by failing to consider the claim and / or all the integers of a particular social group / misapprehending a claim as a Convention basis of claim.

   Particulars

   The Tribunal has considered social group attributes ‘failed asylum seekers or returnees from a western country (CB385 at [97] – [98]) but has failed to consider other attributes (even if otherwise referred in the decision record).

   The Tribunal did not consider the attributes ‘Young Tamil males’ (CB158 – 159) (other attributes arising being from North East of Sri Lanka and these attributes of a particular social group). The claim was expressly articulated these attributes individually / cumulatively of a particular social group advanced by the Applicant was not considered.

   2. The Tribunal should have found that the ‘Sinhalisation’ of the areas whereby the Applicant’s livelihood could be affected constituted jurisdictional erro..

   Particulars

   The Tribunal fell into error when it failed to considered Sinhalisation (CB352 at [71]) as amounting to serious harm / deprivation of livelihood under s 91R and s 5 of the Act.”

   [Errors in the original.]

3. The matter was set down for hearing on 17 May 2016. On 4 May 2016 the applicant’s solicitors filed written submissions in this matter drafted by counsel and dated 3 May 2016.

4. The submissions addressed ground one of the amended application and advised that ground two was not pressed. The submissions also referred to a ground three. No such ground had been pleaded nor had any attempt been made to further amend the application. Nor did the submissions provide any clear articulation of any ground. The written submissions were not clear as to the exact assertion of jurisdictional error.

5. The applicant was represented by counsel at least from the time the written submissions were drafted. He was also represented by a firm of solicitors for some time. It has now become common in matters of this type for applicants, through their legal representatives, to seek to further amend applications already amended by legal representatives, and to seek to do so either on the eve of the hearing or as in the present case after the hearing has commenced (see also my comments in Callegos Mendoza v Minister for Immigration & Anor [2016] FCCA 1142).

6. In the current case, no evidence was provided as to why the solicitors acting for the applicant did not seek to further amend the application at a reasonable time, at least as soon as possible after 3 May 2016. This should have been done if for no other reason than to allow the Minister to understand a further allegation of jurisdictional error to which he was required to respond at the hearing, and to allow the Court to properly prepare for the hearing.

7. The applicant’s conduct, or more precisely that of his legal representatives, in this case was particularly egregious given the failure to articulate the terms of the ground and the lack of clarity in the written submissions as to the exact nature of the ground. Nor did the initial oral submissions in arguing for the leave at the hearing provide any further illumination.

8. Even further, the explanation given from the Bar Table as to the very late attempt to further amend the application was, even at its highest, inadequate and unsatisfactory. The ground as ultimately expressed did not rely on any new legislative provision or authority in the last six months.

9. The efficient administration of the workload of this Court, mandated by the Federal Circuit Court of Australia Act 1999 (Cth) (s.42) would have provided a sound basis to refuse the further amendment. Nonetheless, I adjourned for a short period for counsel to draft the proposed ground and leave was subsequently granted for the application to be further amended by the addition of ground three.

10. That ground is in the following terms:

    “3. The Tribunal fell into error in its consideration of complementary protection under s 36(2)(aa) of the Act.

    Particulars

    The Tribunal erred in its consideration:

    (a) although it stated that it was dealing with ‘intention’. It failed to address whether detention in poor conditions satisfied requirements of the guidelines;

    (b) the basis of such detention.”

Consideration

1. The first ground of the application, as amended, is said to be that the Tribunal committed jurisdictional error because it failed to deal with all of the integers of a particular social group and thereby failed to deal with the claim to fear harm.

2. As best as the applicant’s written submissions could be understood the ground appears to assert as follows. The applicant advanced, or the circumstances presented gave rise to, a number of elements or “attributes” which, if considered collectively, gave rise to a claim to fear serious harm for reason of membership of a particular social group containing those elements or attributes.

3. The written submissions also appear to assert that the Tribunal considered some of those attributes but it failed to deal with others, which the applicant’s submissions characterised as comprising a “lesser class” than all of the identified attributes which comprised a “greater class” ([20] of the applicant’s submissions). It must be said that these descriptions were not satisfactorily explained.

4. The “list” of “attributes”, presumably being the “greater class”, was said to be as set out in the applicant’s written submissions ([14] of the applicant’s written submissions):

   “The social particular group/s that related to the applicant was identified by the applicant in the claims (referenced below). The applicant submits that the proper social group on the material before the Tribunal was social group with the following attributes:

   (i) Sri Lankan;

   (ii) Young;

   (iii) males;

   (iv) from North / East (Trincomalee);

   (v) failed asylum seeker;

   (vi) returning from Western country;

   (vii) Tamil ethnicity;

   (viii) persons likely to be perceived or are suspected of having some allegiance to LTTE or other groups;

   (ix) possibly holding views opposed to their treatment of by the government of Sri Lanka

   [Error in the original.]

5. The “lesser class” appears to be that the applicant claimed fear on the basis of being a returnee from a western country as a failed asylum seeker.

6. I did not understand the applicant to assert, nor did he point to any relevant part of the evidence, that the “greater class” was articulated as an express “whole” relating to a particular social group. Rather, the submission appeared to be that the “attributes” were variously and independently raised, but the Tribunal should have considered them “cumulatively”. The complaint was that it should have asked the question as to whether the particular social group that would emerge from this “collective” grouping led to a real risk of serious harm for the applicant.

7. It is important to note that in his claims to protection, and submissions in explanation of his claims, the applicant initially expressly identified to the Tribunal a fear of persecution based on his membership of “two particular social groups, namely as a ‘failed asylum seeker from a western country’ and a ‘young Tamil male’” (see the first representative’s written submissions of 13 December 2013 at CB 158.7).

8. It is also of note that the applicant’s claims as presented to the delegate made no express reference to particular social groups. The delegate considered the applicant’s claims to fear harm as a young Tamil male from a particular part of Sri Lanka (CB 111.8 to CB 113.10) and on the basis of him potentially being a returned asylum seeker (CB 114.1 to CB 115.8). The subsequent submission from the applicant’s representative did however seek to articulate these “attributes”, identified above (at [31]), as somehow relevant to the two particular social groups.

9. I should note that the “groups” in both written and oral submissions before the Court were identified by simply adding or subtracting from a list of attributes that the applicant asserted his circumstances entailed. Even though the applicant made brief reference to relevant authorities, no attempt was made by the applicant to explain the nature or character of the grounds in light of such relevant authorities as Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 and Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387.

10. Before the Court, the oral submissions appeared to narrow the list of elements or attributes of the particular social group. The particular social group was said to be returnees from the West who have been abroad for a long period of time and who were failed asylum seekers.

11. The Tribunal’s decision record reveals that it did have regard to all of the various elements or attributes that the applicant now says the Tribunal should have considered. The Tribunal also had specific regard to the relevant part of the representatives’ submissions, which on the evidence before the Court, were the most coherent expression of the applicant’s claims (see for example [57] at CB 349 to [59] at CB 350).

12. The applicant did claim to fear harm as a member of the social group of young Tamil males from the east of Sri Lanka and failed asylum seekers from a western country. The first is addressed by the Tribunal at [60] – [63] (at CB 350). The second is addressed at [69] (at CB 351) to [81] (at CB 355).

1. The Minister submitted that the Tribunal did not make a specific finding that either of the two groups are social groups, or for that matter particular social groups. However, on a fair reading of the Tribunal’s decision record I find that the Tribunal did refer to those two particular sets of the applicant’s claims in the context of particular social groups. The reference at [28] (at CB 358) by the Tribunal, where it expressly found 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 from a western country”, which correspond to the groups identified in the representative’s written submissions, make clear that the Tribunal was alert to the question of particular social groups.

2. In any event, the Tribunal made explicit findings that the fear of harm by the applicant in relation to all of the claims made was not

   
   

   well-founded. That is, relevantly, the Tribunal found that the applicant would not face harm for reason of being a failed asylum seeker returning from the West, or because he was a young Tamil male from the east of Sri Lanka. For that matter, the Tribunal also found that the applicant’s claims to fear harm for being suspected of LTTE links or anti-government views (see the applicant’s list in his written submissions) were also not well-founded.

3. Once those factual findings were made by the Tribunal it was not necessary for it to then go on and consider whether the applicant’s claims involved a Convention nexus to one of the grounds identified in Article 1A(2) of the Refugees Convention, including the matter of a particular social group.

4. In short, the Tribunal’s findings of fact, which were not the subject of any attack by the applicant, and were all reasonably open to it on what was before it, meant that the question of whether the applicant would face harm because of membership of particular social groups with these attributes became irrelevant to its task (see SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 and SZUXM v Minister for Immigration and Border Protection [2015] FCA 1514). In all, ground one is not made out.

5. Ground three, as ultimately pleaded, asserts that the Tribunal fell into legal error in its consideration of the complementary protection criterion because it failed to address whether the applicant’s detention in poor conditions on his return to Sri Lanka failed to satisfy “requirements of the guidelines”.

6. It must be said that the applicant’s oral submissions in explanation of the ground were unclear as to the argument the applicant was seeking to make. In fact, it was difficult to discern coherent meaning.

7. At best, two things emerged. First, I understood the applicant to argue at one point that the Tribunal did not have regard to the applicant’s personal characteristics when it came to consider the question of harm arising from detention by the authorities on return to Sri Lanka because he was a failed asylum seeker.

8. Plainly, this is not what is pleaded in ground three (see [27] above). In any event, the Tribunal did have regard to the applicant’s personal circumstances, that is his personal or individual characteristics, when considering the matter of detention and the conditions and circumstances of that detention on return to Sri Lanka (see for example [92] at CB 357).

9. Second, the applicant’s oral submissions, which again it must be said, lacked a logical or coherent flow, made references to certain matters that give some clue as to what the argument appeared to be in support of ground three.

10. One, the applicant’s submissions commenced with a reference to “the issue of intention”. Two, this then leads to that part of the definition of “significant harm” as it appears in s.36(2A) of the Act, which includes “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”.

11. Three, this then leads to s.5 of the Act which in turn defines these two terms as follows:

    “cruel or inhuman treatment or punishment means an act or omission by which:

    (a)  severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)  pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)  that is not inconsistent with Article 7 of the Covenant; or

    (d)  arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)  that is not inconsistent with Article 7 of the Covenant; or

    (b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”

12. Four, as can be seen, the definition of “cruel or inhuman treatment or punishment” includes a reference to “intentionally inflicted”. This appeared to be what the applicant submitted gave rise to the “issue of intention”. I note for the sake of completeness that there is a reference in the definition of “degrading treatment or punishment to “intended to cause”.

13. Five, the applicant in oral submissions, ultimately, directed attention to [86] (at CB 356), [87] (at CB 357) and [103] (at CB 359) of the Tribunal’s decision record. Paragraphs 86 (at CB 356) and 87 (at CB 357) do not deal with or refer to “significant harm”, or s.36(2)(aa) of the Act, or complementary protection.

14. It was never satisfactorily explained how these paragraphs dealing with country information related to the applicant’s ground. It may be that the applicant sought to refer to these paragraphs, and the references there to prison conditions in Sri Lanka, as background to his ground. However, from what is set out immediately above, the ground appeared to be related to whether pain and suffering inflicted on the applicant was “intentionally inflicted”.

15. Paragraph 103 is simply an expression of the Tribunal’s conclusion that the applicant does not satisfy any of the criteria at s.36(2) of the Act.

16. Six, a further clue from the applicant’s submissions as to the argument in relation to ground three, was the reference to SZTAL v Minister for Immigration & Anor [2015] FCCA 64 (“SZTAL”) per Judge Driver. There His Honour considered whether the Tribunal in that case, which also involved a Sri Lankan national who had departed illegally and would be detained on return, fell into legal error in making the finding that the poor prison conditions were not “intentionally inflicted” (see SZTAL at [20] – [25] and in particular [35] – [36] and [45] – [51]).

17. It must be said that in circumstances where an applicant is represented by solicitors and counsel it is not for the Court to look for clues in the submissions and to piece together a coherent argument that may possibly reveal jurisdictional error. Submissions are meant to illuminate, to explain. They are not meant to present the Court with a box of pieces of a puzzle for the Court to put together.

18. In the current case I read the transcript of the hearing before the Court to ensure that there was no deficiency in my notes of the hearing or my recollection of what was said. At best the reference to SZTAL by the applicant was put as follows (page 16 of the transcript of the hearing before the Court at lines 17 to 25 and 31 to 32):

    “[Counsel]: Well, your Honour, the – what we say, your Honour – what I have submitted, your Honour, is Judge Driver in SZTAL found that the tribunal addressed the lack of adequate resources as a reason as to his detention – the applicant detention in a poor condition, therefore the issue – it was not intentionally that he was being sent to a particular prison.  The – in my submission, the distinction in this case is that the tribunal has not found that the applicant will be sent in poor – detained in a poor condition, but, in my submission, the tribunal has not adequately dealt with why the applicant would be detained in such condition, and therefore it’s my submission      

    …

    [Counsel]:   Well, your Honour, the – well, it has not, in my submission, addressed the basis of intention…”

19. As set out above, the Tribunal considered the question of whether the applicant satisfied the criterion at s.36(2)(aa) of the Act under the heading of “Significant harm” at [88] (at CB 357) to [100] (at CB 359). The Tribunal made specific reference to “prison conditions” at [92] (at CB 357). At [89] and [91] (at CB 357), the Tribunal had regard to the relevant definitions of “torture” and “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”.

20. At [92] (at CB 357) the Tribunal stated:

    “The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer discomfort whilst in prison. The applicant may be remanded for a short period of time, between one night to several nights. The Tribunal does not accept in the applicant’s circumstances as an apparently healthy young male 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.”

21. The reference to the matter of “intent” also appears at [93] (at CB 358):

    “Further, 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, 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.”

22. It is important to note that in the current case the applicant’s reference to SZTAL was not to rely on the reasoning or findings of that case. In that case the reasoning was not in favour of an argument by the applicant centred, in part, on the question of intention of those who inflict harm. In the current case, the reliance was to simply submit that the current circumstances are distinguishable. Presumably in the hope that the Court would therefore find for the applicant.

23. One difficulty at least for the applicant is that he did not explain how the current circumstances are distinguishable from those in SZTAL. Nor did the applicant seek to give any satisfactory explanation of what Judge Driver reasoned, and found, which would be the basis for the distinction with this case.

24. I should note that since the hearing of this matter the Full Federal Court SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 dismissed an appeal from Judge Driver’s judgment. Relevantly, the Full Court said at [68]:

    “Further, we are not persuaded that if the expressions ‘intentionally inflicted’ or ‘intended to cause’ are construed to require actual subjective intention, as opposed to the lesser standard for which the appellants advocate, then the outcomes will include irrational outcomes of a kind not intended by the Parliament. Nor are we persuaded by any other consideration urged on the Court by the appellants that the primary judge relevantly erred in construing these expressions.”

25. In the current case, the Tribunal’s analysis and findings from [88] to [91] (at CB 357) and conclusion at [92] (at CB 357) provide the basis for the Tribunal’s finding at [94] (at CB 358):

    “For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. The Tribunal also finds that there is not a real risk the applicant will be arbitrarily killed for the reasons set out above and the death penalty does not arise on the facts.”

26. In effect, the Tribunal found that having regard to the relevant definitions, country information about conditions in Sri Lanka prisons and the treatment of prisoners, and the applicant’s personal circumstances, meant that his case did not meet the definitions of either of the terms “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”.

27. The applicant’s argument before the Court appeared to be that the Tribunal fell into legal error at [93] (at CB 358) because it found that “[p]oor prison conditions” in Sri Lanka “including inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law”. In effect, this can be fairly read as saying that poor prison conditions were not intentionally inflicted by the authorities such as to come within the definitions of “significant harm” as set out at s.5 and s.36(2A) of the Act.

28. It is relevant to note that the argument in this Court was not articulated with the depth of explanation as appears to have occurred in SZTAL (see SZTAL at [14] and [37]). In particular, SZTAL at [37]:

    “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.”

29. It would appear, however, if regard is given to the applicant’s written submissions and in particular the references to “Article 7 of the ICCPR and prison conditions” (see [37] – [39] of the applicant’s written submissions), that the applicant may have sought to invoke a similar argument to that put before Judge Driver.

30. If this is the case, then SZTAL does not assist the applicant. His argument would fail for the reasons set out in SZTAL and in respect of which the appellate Court found no error in the understanding and application of the relevant law. Nor does the judgment of the appellate Court otherwise assist the applicant.

31. The applicant’s unexplained reference in submissions (both at [35] of his written submissions and in oral submissions before the Court) that SZTAL is distinguishable, may have been some inelegant attempt to ask this Court to take a different view of the relevant law and facts to that taken by Judge Driver. Any such attempt cannot succeed now in light of the appellate judgment.

32. The Minister also submitted as an alternative answer to the applicant’s ground that, in any event, at [93] (at CB 358) the Tribunal should be fairly understood as relying on an absence of intention as an alternative basis for its conclusion at [92] (at CB 357), that the applicant’s detention for a short period on return would not have sufficient severity to amount to significant harm.

33. I agree that that is an available fair reading. At [92] (at CB 357), the Tribunal accepted that the applicant may suffer discomfort while in detention. However, it did not accept given his personal circumstances that this would bring the applicant’s situation within the relevant definitions. This was reasonably open to the Tribunal on what was before it. There is no legal error apparent at [92] (at CB 357), and the preceding paragraphs ([88] – [92] at CB 357).

34. At [93] (at CB 358) the use of the first word “Further”, can fairly be read as an additional analysis to the finding expressed in the last sentence at [92] (at CB 357). That finding means that the matter of “intention” is not relevant given that the applicant’s circumstances and what is known of the prison conditions did not rise to the level of significant harm. This was a factual finding made by the Tribunal within jurisdiction. Once the Tribunal had reached the conclusion at [92] (at CB 357), then what is set out at [93] (at CB 358), with its reference to the intention of the Sri Lankan authorities, is a “further”, or another, reason for finding, that being held briefly in detention pending a Court appearance was not of such character as to rise to significant harm, rather than a part of the initial and separate reason for its critical conclusion.

35. For the sake of completeness, I note that the applicant’s counsel confirmed that references in the written submissions to “article 7 of the ICCPR” and “s499 Ministerial direction” were “not part of” the ground, and ultimately was not “linked” to this ground. In all ground three is not made out.

Conclusion

1. No jurisdictional error arises from the remaining grounds of the further amended application. It is appropriate, therefore, to dismiss the application. I will make an order accordingly.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 2 August 2016