SZWDK v Minister for Immigration and Border Protection
[2016] FCA 979
•16 August 2016
FEDERAL COURT OF AUSTRALIA
SZWDK v Minister for Immigration and Border Protection
[2016] FCA 979
Appeal from: SZWDK v Minister For Immigration & Anor [2015] FCCA 2164 File number: NSD 1043 of 2015 Judge: WIGNEY J Date of judgment: 16 August 2016 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – where primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal – where Tribunal affirmed decision of a delegate of the Minister for Immigration and Border Protection not to grant a protection visa – Migration Act 1958 (Cth), s 5(1) – whether the Tribunal misconstrued the expressions “intentionally inflicted” and “intended to cause” in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” – application of the decision of the Full Court of the Federal Court of Australia in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 Legislation: Migration Act 1958 (Cth), ss 5(1) Cases cited: SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69
Date of hearing: 16 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms S Burnett of Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting appearance, save as to costs ORDERS
NSD 1043 of 2015 BETWEEN: SZWDK
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
16 AUGUST 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the costs of the first respondent, assessed in the amount of $6349 pursuant to r 40.43(b) of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
The appellant is a citizen of Sri Lanka who has sought asylum in Australia. His attempts to secure a protection visa from the respondent, the Minister for Immigration and Border Protection, have thus far been unsuccessful. The Minister’s delegate refused the appellant’s visa application. The Refugee Review Tribunal subsequently rejected the appellant’s review application and affirmed the delegate’s decision. The appellant then challenged the Tribunal’s decision in judicial review proceedings commenced in the Federal Circuit Court of Australia. On 14 August 2015 the primary judge dismissed the appellant’s application with costs. The appellant now appeals to this Court from the judgment of the Circuit Court.
There is only one issue properly raised by the appeal. It is narrow in compass. In his visa application, and before the Tribunal, the appellant advanced a number of claims in support of his case that he satisfied the criteria for a protection visa in either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth). The Tribunal found, for various reasons, that it was not satisfied that the appellant’s circumstances met the criteria. In his application to the Circuit Court, the appellant effectively challenged two aspects of the Tribunal’s review and decision. First, he contended that the Tribunal contravened s 424A of the Migration Act. The primary judge rejected that contention. There is no appeal from that finding.
Second, the appellant contended that the Tribunal erred in its consideration of one aspect of his case: whether his circumstances satisfied the complementary protection criterion in s 36(2)(aa). The error was said to be that, in considering whether there was a risk that he would be subjected to cruel or inhuman treatment or punishment as a result of being imprisoned in Sri Lanka, the Tribunal failed to consider whether the knowledge of Sri Lankan authorities that Sri Lankan prisons were “overcrowded and unpleasant” was sufficient to prove that the pain and suffering arising from imprisonment would be “intentionally inflicted”. The primary judge found that the Tribunal did not err in finding that any pain and suffering that might be inflicted on the appellant if imprisoned in Sri Lanka would not be intentionally inflicted. That finding is the sole ground of appeal.
RELEVANT STATUTORY PROVISIONS
Section 36(2)(aa) of the Act, which sets out the complementary protection criterion, is in the following terms:
(2) A criterion for a protection visa is that the applicant for the visa is:
...
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
Section 36(2A) provides as follows in relation to “significant harm”:
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
The appellant did not, contend that s 36(2A)(a), (b) or (c) were engaged in his case.
Section 5(1) of the Act defines “cruel or inhuman treatment” and “degrading treatment or punishment” in the following terms:
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.
RELEVANT FINDINGS BY THE TRIBUNAL
Given the narrow scope of the appeal it is necessary only to consider the Tribunal’s findings in relation to the appellant’s claim that he satisfied the complementary protection criterion in s 36(2)(aa) because he would be imprisoned for a period of time upon his return to Sri Lanka because he had left Sri Lanka illegally. The Tribunal accepted that the appellant was likely to spend some time in prison upon his return. It also accepted that prison conditions in Sri Lanka are poor and the jails are overcrowded. The question for the Tribunal was whether, as a result of his likely imprisonment in these circumstances, there was a real risk that the appellant would suffer “significant harm” for the purposes of s 36(2)(aa). That depended on whether, as a result of being imprisoned, the appellant would be “subjected to cruel or inhuman treatment” or “degrading treatment or punishment”. That in turn depended on whether the act of imprisoning the appellant would be an act by which “severe pain or suffering” would be “intentionally inflicted”, or an act that caused and was “intended to cause” extreme humiliation which was unreasonable.
The Tribunal found that the likely imprisonment of the appellant upon his return to Sri Lanka would not amount to “serious harm” because, amongst other things, any pain or suffering arising from his imprisonment would not be intentionally inflicted. The Tribunal’s findings and reasoning in that regard is to be found at [59] to [61] of its reasons:
The Tribunal accepts that the applicant faces arrest on charges of illegal departure if he returned to Sri Lanka. The Tribunal also accepts that the applicant is facing outstanding proceedings in relation to charges of having tried to leave Sri Lanka illegally in late May 2012. The Tribunal has considered whether the situation would put the applicant at real risk of significant harm if he returns to Sri Lanka. The Tribunal has considered the definition of significant harm contained in s 36(2A) of the Act and the relevant definitions contained in s 5(1) of the Act.
As indicated the Tribunal accepts that the applicant will be questioned and detained and charged with offences in relation to leaving Sri Lanka illegally. The DFAT country report of October 2014 indicates that the processing issues involved in the procedures for returnees involves interviewing the person and checking records and databases and the questioning is undertaken by immigration officers and the State intelligence service and the airport CID. DFAT assesses that Sri Lanka returnees are treated according to the standard procedures regardless of their ethnic extraction or religion. DFAT also assesses the detainees are not subject to mistreatment during the processing at the airport. The Tribunal accepts that prison conditions in Sri Lanka are poor. The Tribunal is however not satisfied that the detention conditions, including overcrowding and poor conditions generally that the detention conditions, including overcrowding and poor conditions generally that the applicant would likely face in jail in relation to the outstanding charges or his illegal departure amount to significant harm as contemplated by s 36(2A) of that such treatment would be intentional as is required by the Migration Act.
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, that the there is a real risk that he will be subjected to any form of harm would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a) to (e) of the definition of torture in s 5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, or pain or suffering, whether physical or mental, 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 such as that would meet the definition of cruel and inhuman treatment or punishment in s 5(1). The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer such harm as to meet the definition of degrading treatment or punishment in s 5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.
THE CIRCUIT COURT PROCEEDINGS AND JUDGMENT
The appellant sought judicial review of the Tribunal’s decision in the Circuit Court pursuant to s 476 of the Act. He sought an order quashing the Tribunal’s decision.
The appellant was, it appears, at all times not legally represented in the Circuit Court proceedings. His grounds of review relevant to the appeal were in the following terms:
1.I had a legal representative until the RRT decision. I do not now have a lawyer to advise and represent me in respect of this court application.
The RRT has declined its jurisdiction in failing to assess as to whether I would be persecuted as a young Tamil male aged 25, travelled to and stayed in a village of North of Sri Lanka (a particular part of Sri Lanka) but it has assessed that there is no persecution for Tamils generally.
There is information before the RRT and the country information on Sri Lanka indicates that that failed asylum seekers are held in prison for several days in overcrowded and unpleasant conditions. The prison conditions are poor.
2.The RRT made an error when deciding that cruel or inhumane treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the RRT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The RRT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.
3.The RRT has breached its statutory duty imposed by section 424A of the Act as the RRT has failed to put in writing the concerns and adverse information which arose in my review (reasons for refusing my review) and it has failed to invite me for my comments in writing, after the hearing, before it made its decision.
The primary judge treated those three grounds as effectively raising one “complaint”. His Honour rejected that complaint. His Honour’s relevant reasoning is at [15] to [17] of the judgment under appeal:
The first three grounds in the amended application, read together, raise a single complaint. It is that the Tribunal did not consider whether the possible placement of the applicant in the overcrowded jail would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.
This argument appears to be the same that was considered by Judge Driver in SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64. That judgment is currently listed for appeal before a Full Court of the Federal Court. However, until it is determined by that Court, I am bound to follow the decision unless I considered that it is clearly wrong. His Honour’s decision was, in turn, based upon the decision of Yates J in SZSPE v Minister for Immigration & Border Protection [2014] FCA 267 on appeal from a judgment of Judge Emmett.
I do not consider that the decision in SZTAL is clearly wrong. First, the question of intention must, as a matter of ordinary meaning, require something more than negligence; second, it is a question of fact whether or not a person intends to do something and the Tribunal here, (as in SZTAL) found that there was no such intention; and third, the applicant’s argument overlooks the difficult question of whose intention is in issue. It is insufficient in my view, simply to say that the authorities are aware of the general prison conditions and to draw the conclusion from that that anybody who is sent to jail has harm intentionally inflicted upon them. Most legal systems are more complex than that. The material before the Tribunal suggested that, as in Australia, a person would be sentenced to imprisonment only after conviction following a trial on the charges. The sentence would be imposed by a judge in accordance with the provisions of the relevant enactment which, in this case, appears to have allowed for a range of sentences. In those circumstances, the applicant’s argument would require consideration of whether it was the sentencing judge or the legislature that had the requisite knowledge of the prison conditions and thus the intention to inflict harm by a sentence of imprisonment. Those matters tell against the acceptance of the argument.
GROUNDS OF APPEAL AND SUBMISSIONS
As was the case in the court below, the appellant was not legally represented in relation to his appeal. His sole ground of appeal was in the following terms:
At [17] his Honour erred in finding that it is a question of fact of the Sri Lankan Immigrants and Emigrants Act is required to reveal a subjective intention for the purposes of s 36(2)(aa) of the Act.
Regrettably the appellant’s ground of appeal does not make much sense. It challenges a finding, supposedly made in [17] of the judgment, that a finding of “subjective intention” was required, yet [17] says nothing about the need to find a subjective intention. It may be taken, however, that the appellant challenges the primary judge’s rejection of the appellant’s contention that proof of the “intentional infliction” of pain and suffering arising from imprisonment in Sri Lanka could be made out on the basis that the Sri Lankan authorities “have known of the existence of the overcrowded and unpleasant jails”. He also appears to challenge the primary judge’s conclusion that the decision of Judge Driver in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64, was not clearly wrong. In SZTAL, Judge Driver rejected arguments similar to, or the same as, those advanced by the appellant both in the Circuit Court and on appeal. The decision of Judge Driver appears to be the source of the reference in the appeal ground to a requirement of “subjective intention”.
The appellant did not file any written submissions in support of this appeal ground, despite being directed to do so. The appellant appeared unrepresented at the hearing of his appeal. He made detailed and wide-ranging oral submissions. Unfortunately, none of them were directed to the single ground of appeal, or the judgment of the Circuit Court, or even the case that he mounted in the Circuit Court. Even more unfortunately, despite the fact that it was explained to the appellant that this Court did not have jurisdiction to reconsider or determine the merits of visa and review applications, the appellant’s oral submissions were directed entirely to that issue. They amounted to little more than a plea to reconsider his case, or to an attack on the merits of the Tribunal’s decision. His main contention was simply that the Tribunal did not properly consider his case.
CONSIDERATION OF APPEAL GROUND
The appellant’s contention that the primary judge erred in dismissing his argument that an intention to inflict pain and suffering could be made out if there was proof that it was known that pain and suffering would be the consequence of imprisonment faces an almost insurmountable hurdle, at least in this Court. That hurdle is the decision of the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69, which upheld the decision of Judge Driver.
In SZTAL, the Full Court considered and rejected arguments that were effectively the same as the arguments advanced by the appellant in this matter. In particular, the Court rejected submissions, based on various authorities relating to the proof of intention in the criminal law context, that to prove an intention to inflict or cause a particular outcome or consequence, it was sufficient to prove knowledge of the probable consequences: see Kenny and Nicholas JJ at [53]; Buchanan J at [97]. Proof of knowledge may in some cases provide a basis from which intention may be inferred. Intention cannot, however, simply be equated with knowledge of the probable consequences.
The Full Court in SZTAL also rejected an argument that, to prove an intention to cause a particular consequence, it was sufficient to prove that the consequence was the result of particular acts and that the acts were deliberate: see Kenny and Nicholas JJ at [54]-[59], referring to R v Ping [2006] 2 Qd R 69; Buchanan J at [103]-[105]. Kenny and Nicholas JJ held (at [59]) that the “natural and ordinary meaning of intentional infliction is actual subjective intention to bring about the victims’ pain and suffering by the actor’s conduct”. That finding runs directly counter to the appellant’s ground of appeal in this matter.
For the appellant to succeed in his appeal he would have to demonstrate that the decision of the Full Court in SZTAL was plainly wrong. He has not even attempted to do so. There is no basis for concluding that the decision and reasoning in SZTAL was plainly wrong.
Even putting SZTAL to one side, the appellant faces at least two other significant hurdles in making out this appeal ground. First, the Tribunal said very little in its reasons concerning how intention may or may not be proved. It simply found, as a fact, that it was not satisfied that intention had been proved on the evidence before it. There is nothing to suggest that the appellant put to the Tribunal, and that the Tribunal rejected, the proposition that relevant intention on the part of the Sri Lankan authorities could be made out on the basis that the authorities knew that remanding a person in custody in Sri Lanka would result in pain and suffering or extreme humiliation. It follows that, even if there was some merit in the appellant’s submission that proof of knowledge of the probable consequences was sufficient to prove an intention to cause those consequences, there is nothing in the Tribunal’s reasons to suggest that the Tribunal rejected that interpretation of the element of intention. The issue concerning proof of intention raised by the appellant both in the court below, and on appeal, simply did not arise for consideration in the Tribunal having regard to the way the matter appears to have been conducted.
Second, the appellant has failed to point to any evidence that was capable of establishing that the authorities in Sri Lanka knew that pain and suffering or extreme humiliation was the probable consequences of remanding a person in custody for a short period in Sri Lanka. The Tribunal did not find that any person in Sri Lanka who was responsible for remanding persons in prison knew that the state of prisons in Sri Lanka was such that imprisonment for a short period would inflict pain or suffering, or extreme humiliation on the detainee. The appellant’s arguments in relation to intention and knowledge are, therefore, entirely in the abstract. They are not rooted in the facts or evidence before the Tribunal: cf. SZTAL at [98] (Buchanan J). The arguments simply do not arise on the facts of the appellant’s case.
The primary judge was correct to reject the appellant’s argument that proof that the Sri Lankan authorities knew that Sri Lanka’s jails were overcrowded and unpleasant was sufficient to establish that any pain and suffering inflicted on a detainee was intentionally inflicted. The primary judge was correct to find that intention, in that context, was a question of fact, and that the Tribunal found that intention had not been made out on the facts. The primary judge did not err in the way apparently contended by the appellant, or at all.
It should also be reiterated that, even if it turns out that the Full Court’s decision in SZTAL is overturned in the High Court, it is difficult to see how the question of construction of the expressions “intentionally inflicted” and “intention to cause” in the s 5(1) definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” properly arose on the facts of this case. There does not appear to have been any evidence that any relevant person in authority in Sri Lanka knew that the imprisonment of a person in Sri Lanka would result in the infliction of severe pain and suffering or degrading treatment or punishment. Certainly the Tribunal made no findings to that effect.
It follows that there is no merit in the appellant’s ground of appeal.
Given the appellant’s wide-ranging oral submissions, it remains to say something briefly concerning the Tribunal’s decision. The appellant’s general contention was that the Tribunal failed to consider, or to properly consider, his case. That contention is belied by the lengthy, detailed and well-reasoned decision and reason of the Tribunal. While it is perfectly understandable that the appellant feels aggrieved by the fact that his review application was not successful, his contention that his case was not properly considered is simply incorrect. A fair reading of the Tribunal’s reasons reveals that it fairly and carefully considered the appellant’s case. It just didn’t accept it.
CONCLUSION AND DISPOSITION
The appellant has failed to demonstrate any appealable error on the part of the Circuit Court. His appeal is dismissed with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 16 August 2016
3
1