FEDERAL COURT OF AUSTRALIA

AIS15 v Minister for Immigration and Border Protection [2016] FCA 978

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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:

1    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 in January 2014. 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. The primary judge dismissed the appellant’s application with costs. The appellant now appeals to this Court from the judgment of the Circuit Court.

2    The issues raised by the appeal are narrow in compass. The first issue is whether the primary judge erred in rejecting the appellant’s contention that the Tribunal had failed to comply with a written direction given by the Minister as it was required to do by s 499(2A) of the Migration Act 1958 (Cth). The second issue is whether the primary judge erred in rejecting the appellant’s contention that the Tribunal had misconstrued or misapplied the expressions “intentionally inflicted” and “intended to cause” in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act.

3    Both of those issues arise in the context of the Tribunal’s findings concerning one aspect of the appellant’s case that he met the criteria for a protection visa. The appellant contended before the Tribunal that he met the complementary protection criterion in s 36(2)(aa) of the Act because, as a person who had departed Sri Lanka illegally, he would be prosecuted upon his return to Sri Lanka. The result would be that he would spend some time in a Sri Lankan prison, even if it might only be for a relatively short period while on remand. He contended that any period of time spent in a Sri Lankan prison would constitute cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in the Act.

4    Given the narrow scope of the issues raised by the appeal it is unnecessary to detail the other aspects of the appellant’s case that he met the criteria for the grant of a protection visa. Nor is it necessary to refer to the way the Tribunal decided those other aspects of the appellant’s case. Suffice it to say that the Tribunal considered all the claims and evidence advanced by the appellant in support of his protection visa application but, for various reasons, was ultimately not satisfied that the appellant met the criteria for the grant of a protection visa. Most of the Tribunal’s findings were not challenged in the Circuit Court. The appellant’s case in the Circuit Court was limited to the matters now raised on appeal: the alleged failure to comply with a direction given by the Minister, and the alleged misconstruction or misapplication of the intention element of the definitions of cruel or inhuman treatment or punishment and punishment or degrading treatment.

relevant provisions and Ministerial direction

5    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…[.]

6    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.

7    The appellant did not, or at least does not on appeal, contend that s 36(2A)(a), (b) or (c) were engaged in his case.

8    Section 5(1) of the Act defines “cruel or inhuman treatment or punishment” 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.

9    On 21 June 2013, the Minister issued a written direction under s 499 of the Act named “Direction No. 56 – Consideration of Protection Visa Applications”. The direction came into effect on 22 June 2013. Clauses 1 and 2 of Direction No. 56 provided as follows:

1.    This Direction applies to a decision-maker performing functions 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’

10     “PAM” is apparently an acronym for “Procedures Advice Manual”. The relevant PAM relied on by the appellant was “PAM3: Protection visas – Complementary Protection Guidelines”. Section 23 of PAM3 provides as follows in relation to the definition of cruel or inhuman treatment or punishment:

23    Intentionally inflicted pain or suffering

To meet the definition of cruel or inhuman treatment or punishment, an act or omission must be intended to inflict either severe pain or suffering or some level of pain or suffering, depending on which limb of the definition the decision maker considers appropriate. An act or omission that is not intended to cause pain or suffering but inadvertently did so would not fall within the definition.

In certain circumstances it may be appropriate to infer an intention to inflict pain or suffering if it is evident that pain or suffering was or may be knowingly inflicted.

11    Section 25 of PAM3 includes the following statement or guideline concerning the definition of degrading treatment or punishment:

Intended to cause

To meet the definition of degrading treatment or punishment, an act or omission must be intended to cause extreme humiliation. An act or omission that is not intended to cause extreme humiliation but inadvertently did so would not fall within the definition.

In certain circumstances it may be appropriate to infer an intention to inflict extreme humiliation where it is evident that humiliation was or may be knowingly inflicted.

RElevant findings by the Tribunal

12    It is common ground that paragraphs 53 to 56 of the Tribunal’s reasons are the relevant paragraphs of the reasons that deal with the appellant’s contention that there was a real risk that he would suffer cruel or inhuman treatment or punishment, or would be subjected to degrading treatment or punishment, as a result of the fact that he would be required to spend some time in a Sri Lankan prison upon his return. Those paragraphs of the Tribunal’s reasons should be set out in full (footnote omitted):

53.    The Tribunal has accepted that the applicant departed Sri Lanka illegally. The Tribunal has, therefore, accepted that it is likely that he would face questioning at the airport, arrest on charges of illegal departure, that there is a possibility he could be placed in remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. The Tribunal has also accepted there is some possibility that the applicant may be remanded for a short period whilst waiting to be brought before a magistrate in conditions which are cramped, uncomfortable and unsanitary. The Tribunal has not accepted that the weight of the evidence indicates that Tamil returnees are being harmed if remanded for a brief period and has not accepted that the weight of the evidence indicates that the applicant will be remanded for a lengthy period whilst waiting to be brought before a magistrate.

54.    In considering the situation for the applicant upon his return, having regard to the fact that the applicant is likely to be questioned at the airport, possibly detained for a brief period in a remand centre and fined, the Tribunal has had regard to the five ‘limbs’ of the definition of ‘significant harm’ in s.36(2A). These require that there is a real risk the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Act requires that the pain or suffering be ‘intentionally inflicted’ on a person. Similarly, ‘degrading treatment or punishment’ is defined to mean an act or omission that causes and is intended to cause extreme humiliation. The definition of ‘torture’ also requires that there is an act or omission by which severe pain or suffering is intentionally inflicted on the person.

55.    The Tribunal considers that the weight of that evidence indicates that despite large numbers of reported involuntary returnees to Sri Lanka, including Tamil males from Australia and those who departed Sri Lanka illegally by boat, and high level media interest in such persons, there has been no reporting of persons suffering significant harm as contemplated by s.36(2A). The Tribunal is not satisfied that during any questioning at the airport there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor is the Tribunal satisfied that the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’. The Tribunal is also not satisfied that the evidence indicates that during a period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life.

56.    Accordingly, 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 there is a real risk he will suffer significant harm when he is questioned at the airport or during any period which he may spend in jail on remand. Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that he will be subject to an abduction, death or any other form of significant harm following his return to Sri Lanka or a real risk that he will be subject to significant harm upon his return to his village, or indeed, elsewhere in Sri Lanka.

13    The content of a footnote to the penultimate sentence of paragraph 55 is referred to below.

14    The following six points may be noted concerning the Tribunal’s findings and reasoning.

15    First, the Tribunal accepted that the appellant had left Sri Lanka illegally.

16    Second, the Tribunal accepted that, as a result, it was likely that upon his return the appellant would be arrested on charges of illegal departure and that there was a possibility that he could be detained in a “remand centre” for a “brief period”, possibly up to a fortnight, while awaiting a bail hearing. The appellant would later be fined. The Tribunal appears to have proceeded on the basis that the appellant would be granted bail and that, if and when convicted, the appellant would not face any further detention. Those findings were not challenged in the Circuit Court.

17    Third, the Tribunal did not accept on the evidence before it that Tamil returnees “are being harmed if remanded for a brief period” and did not accept that the appellant will be remanded for a “lengthy period” before being brought before a magistrate.

18    Fourth, the Tribunal appeared to find, or at least proceeded on the basis, that during the period that he would spend on remand or in prison the appellant may experience “pain and suffering caused by severe overcrowding and poor conditions”. The Tribunal found, however, that any such pain and suffering would not be “intentionally inflicted” as required by the definition of cruel or inhuman treatment or punishment.

19    Fifth, the Tribunal also found that the severe overcrowding and poor conditions imposed on detainees, in the appellant’s circumstances were not “intended to cause extreme humiliation” as required by the definition of degrading treatment and punishment. A footnote to this finding referred to two earlier decisions of the Circuit Court. In the first decision, SZTKF v Minister for Immigration & Anor [2014] FCCA 2827, Judge Manousaridis found that intentionally placing a person in remand while awaiting sentence did not establish that the harm was intentional such that it amounted to significant harm. In the second decision, SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, it was held that mere negligence, without more, was not capable of amounting to intentional infliction of pain or suffering.

20    The final point to be emphasised about the Tribunal’s findings and reasoning in relation to this aspect of the appellant’s case is that the Tribunal did not refer to, or make any findings concerning, knowledge on the part of the Sri Lankan authorities about the apparently unsatisfactory state of their prison system. There is nothing in the Tribunal’s reasons to indicate that it was put to the Tribunal that there was evidence of such knowledge, or that it was evident that severe pain or suffering, or extreme humiliation, would inevitably be inflicted upon anyone imprisoned in Sri Lanka, even for a short time.

The circuit court proceedings and judgment

21    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.

22    The appellant, who was represented by counsel at the hearing in the Circuit Court, ultimately relied on two grounds of challenge to the Tribunal’s decision (grounds 1 and 3 of the application as filed). Those grounds were in the following terms:

1.    The Tribunal’s Decision involved jurisdictional error insofar as the Tribunal failed to comply with s 499(2A) of the Act and Direction No. 56 - Consideration of Protection Visa applications, dated 21 June 2013 (Direction 56)

Particulars

a.    Direction 56 provides that “[i]n 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 … to the extent they are relevant to the decision under consideration.

PAM3: Refugee and humanitarian – Complementary Protection Guidelines

PAM3: Refugee and humanitarian – Refugee Law Guidelines”

b.    Section 18 of the PAM3: Refugee and humanitarian – Complementary Protection Guidelines (Complementary Protection Guidelines), headed “Intentionally inflicted pain or suffering”, states: “In certain circumstances, it may be appropriate to infer an intention to inflict severe pain or suffering if it is evident that such pain or suffering was or may be knowingly inflicted.”

c.    The Tribunal said (at [55]) that it was not satisfied that “the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment”.

d.    The Tribunal did not consider whether it was “evident that such pain or suffering was or may be knowingly inflicted” and did not consider whether it was “appropriate to infer an intention to inflict severe pain or suffering”.

e.    To that extent, the Tribunal did not take account of the Complementary Protection Guidelines and failed to comply with the Direction 56 [sic] and s 499(2A).

…

3.    The decision of the Tribunal involved jurisdictional error insofar as the Tribunal misconstrued or misapplied the words “intentionally inflicted” and “intended to cause” in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act.

Particulars

a.    The Tribunal found that “the new Sri Lankan government retains an intention to charge and sentence returnees and, therefore, apply the provisions of the Immigration and Emigration Act”: [45].

b.    The Tribunal found that the applicant may be “placed in a remand [sic] for a short period in what may be poor conditions”: [48], “in conditions which are cramped, uncomfortable and unsanitary”: [53], involving “severe overcrowding and poor and insanitary conditions” and that he “may spend up to a fortnight” in those conditions: [55].

c.    The Tribunal erred in failing to ask itself whether the person who forcibly detains the applicant in those conditions will do so knowing that pain or suffering or extreme humiliation might result: [55], and that failure reveals that the Tribunal misconstrued or misapplied the definitions in s 5(1).

23    The primary judge rejected both of these grounds and dismissed the appellant’s application.

24    In relation to ground 1, the primary judge found that there was no basis to infer that the Tribunal failed to have regard to PAM3. The primary judge’s reasons for so finding were as follows (at [11]):

This is not a case where there were findings of circumstances made by the Tribunal from which it can be said that there must have been a failure by the Tribunal to have regard to the content of PAM3. It was for the Tribunal to determine what was or was not relevant within the PAM3 and this is a case it can be inferred that the Tribunal concluded it was not relevant to identify the matters set out under Intentionally Inflicted Pain and Suffering in light of the Tribunal’s reasoning. There is no substance in relation to ground 1, and it fails to identify a jurisdictional error.

25    In relation to the appellant’s second ground (ground 3 in the application), the primary judge reasoned as follows (at [12], [13] and [16]):

12.    In relation to ground 3, again it is clear that the Tribunal identified in the attachment to the reasons, which was incorporated through paragraph 4, including the definition in s.5. It is clear that the Tribunal made findings in respect of whether there would be any intentionally inflicted pain or suffering. The proposition that the Tribunal misconstrued or misapplied the words is, in my opinion, without substance.

13.    The reasoning of the applicant’s counsel appeared to be based on the proposition that there would be an intentional imprisonment pursuant to a general law that is not enforced on a discriminatory basis and is not applied for a Convention reason. The applicant’s argument in this regard, if correct, would mean that every enforcement of a custodial law as a result of an illegal departure would give rise to intentional inflicted pain and suffering whereby there would be a real risk of suffering significant harm. That proposition cannot be correct.

16.    The applicant’s counsel referred to decisions in the High Court of Australia dealing with the mental element of intention in criminal cases. Those cases appear to be of limited assistance given the legislative provisions in this case and the findings of fact made by the Tribunal, seeking to advance an argument that a similar analysis is required for the purpose of the application of the Convention. I do not accept that there were any facts found by the Tribunal that required it to address in any greater detail or analysis whether there should be inferred an intention. Further, I accept that the Tribunal carefully considered the issue of intentionally inflicted pain or suffering as is apparently [sic] from the findings referred to above. There is no basis to infer any misconstruction or any misapplication of s.5 in the present case. The application is dismissed.

26    It would appear that the High Court cases adverted to by the primary judge in [16] included: Vallance v The Queen (1961) 108 CLR 56; He Kaw Teh v The Queen (1985) 157 CLR 523; Giorgianni v The Queen (1985) 156 CLR 473; and Peters v The Queen (1998) 192 CLR 493.

GROUNDS OF appeal and submissions

27    The appellant’s grounds of appeal, put simply, are that the primary judge erred in rejecting the arguments the appellant advanced in relation to the two grounds of challenge to the Tribunal’s decision.

28    The first ground of appeal was that the primary judge should have found that the Tribunal “committed jurisdictional error” by failing to comply with s 499(2A) of the Act and Direction No. 56 because it failed to take into account the paragraphs of PAM3 dealing with the intention elements of the definitions of cruel or inhuman treatment or punishment and degrading treatment. The thrust of the appellant’s submissions in support of this ground was that the Tribunal’s reasons did not refer to the relevant parts of PAM3 and did not refer to any findings about whether the relevant intention could be inferred from circumstances based on knowledge.

29    The second ground of appeal was that the primary judge should have found that the Tribunal erred in construing or applying the requirement that any pain or suffering was “intentionally inflicted” and the requirement of an intention to cause extreme humiliation. In his written submissions, the appellant relied, as he apparently did so before the primary judge, on the High Court decisions in Vallance, He Kaw Teh, Giorgianni and Peters. He contended that those cases established that if a person knows what the probable consequences of their acts are, and performs the acts with that knowledge, it can be concluded that the person intended those consequences. The appellant contended that the Tribunal clearly did not approach the element of intention on that basis. The primary judge should therefore have concluded that the Tribunal “asked itself the wrong question” and “failed to carry out” the “test” in the relevant definitions of cruel or inhuman treatment and punishment or degrading treatment.

30    In his oral submissions, the appellant effectively conceded, however, that the decision of this Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 effectively precluded him from making anything other a formal submission in relation to his second ground of appeal. That is because the Court in SZTAL considered and rejected the very same submissions as those advanced in his written submissions.

Ground 1 – failure to comply with direction No. 56

31    It is not strictly correct, as contended by the appellant, that the Tribunal did not advert to Ministerial Direction No. 56 or the PAM3 guidelines. At [4] of its reasons, the Tribunal referred to an attachment to its reasons which was said to summarise the “relevant law”. The attachment included a paragraph which stated that, in accordance with Ministerial Direction No. 56 and s 499 of the Act, the Tribunal was required to take account of the policy guidelines in PAM3 to the extent that they were relevant to the decision under consideration.

32    That said, the main body of the Tribunal’s reasons certainly make no reference to PAM3 or the substance of the relevant guidelines included in them. There is no indication that the Tribunal engaged at all with the notion of inferring an intention to inflict pain and suffering or extreme humiliation from circumstances which suggested that it was evident that pain and suffering or humiliation was or may be knowingly inflicted.

33    The critical question is whether it should be inferred from the fact that the Tribunal’s reasons do not refer to the guidelines that the Tribunal did not take them into account.

34    The appellant’s contention that such an inference should be drawn faces at least two hurdles.

35    The first difficulty arises from the terms of Ministerial Direction No. 56 itself. Clause 2 provides that the Tribunal is only obliged to take PAM3 into account to the extent that it is “relevant to the decision under consideration”. In SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34, Perram J held (at 38 [20]) that it was for the Tribunal to form an opinion as to whether a guideline was relevant to the decision under consideration and that “there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines”.

36    Perram J also found (at 37 [15]), relying on Minister for Immigration and Multicultural Affairs v Yusuf (M10 of 2000) (2001) 206 CLR 323, that it was “permissible” for the Court to conclude from the absence of any direct consideration of guidelines in the Tribunal’s reasons that the Tribunal did not consider the guidelines to be material to its decision. Of course, ordinarily the drawing of such an inference is advantageous to an applicant. That is because it is frequently argued by applicants that a particular matter was a material consideration and that a failure by the Tribunal to refer to that matter in its reasons meant that it failed to take it into account. Here, however, the drawing of such an inference would be adverse to the appellant. That is because it would indicate that the Tribunal was not required to take the guideline into account because it did not consider it to be relevant to the decision under consideration.

37    The second difficulty for the appellant arises from the terms of sections 23 and 25 of PAM3. Those were the sections of the guidelines that the appellant contended the Tribunal was required to but did not take into account. Both sections 23 and 25 state only that “in certain circumstances it may be appropriate” to draw an inference of intention. These sections of the guidelines do not require the Tribunal to consider whether such an inference is available in every case. Nor do they require the drawing of such an inference. Indeed, the Tribunal would, on one view, only need to turn its mind to whether such an inference should be drawn where there was evidence to the effect that it was evident that pain or suffering or humiliation was or may be knowingly inflicted. In those circumstances, the fact that the Tribunal did not refer to sections 23 and 25 of PAM3 in its reasons may suggest that the Tribunal did not consider that the circumstances of the appellant’s case were such as to support such an inference. Equally, it might suggest that there was no evidence that it was evident that pain and suffering or humiliation would be knowingly inflicted.

38    The primary judge appears to have found (at [11]) that the Tribunal’s factual findings were such that it should be inferred that the Tribunal had concluded that paragraphs 23 and 25 were not material to its decision and that no inferences based on knowledge were available in the circumstances of the appellant’s case. While the primary judge’s reasoning in that regard may not be entirely clear, it was not in error. Having regard to the terms of both clause 2 of Ministerial Direction No. 56 and the terms of paragraphs 23 and 25 of PAM3, the mere fact that the Tribunal did not expressly refer in its reasons to either the direction or the guidelines does not support an inference that the Tribunal failed to comply with either the direction or the relevant guidelines.

39    It may also perhaps be accepted that the Tribunal’s findings that it did not accept that there was any relevant intention on the part of the authorities in Sri Lanka to inflict pain and suffering on, or to cause extreme humiliation to, persons detained in their prisons, was not supported by particularly clear or expansive reasoning. It may have been preferable for the Tribunal to better explain its findings in that regard. The issue would have been put beyond doubt if the Tribunal had expressly referred to the guidelines insofar as they may have touched on findings or inferences relating to intention, even if only to indicate that no such inferences were available in the particular circumstances of the case. Nevertheless, such reasoning as there was on this issue tends to suggest that the Tribunal considered that the circumstances of the case before it did not support the drawing of inferences of the sort referred to in paragraphs 23 and 25 of PAM3. That is particularly so given that, as already indicated, there was nothing to suggest, that it was evident that pain or suffering may have been knowingly inflicted, or that it was evident that it was known by the authorities that the act of remanding someone in detention in Sri Lanka would cause extreme humiliation.

40    It was, in all the circumstances, not necessary for the Tribunal to expressly refer to the relevant guidelines in PAM3. The fact that it did not do so does not support an inference that it did not have regard to the guidelines. The primary judge did not err in so finding.

41    The appellant’s first ground of appeal accordingly has no merit and is rejected.

GROUND 2 – MISCONSTRUCTION OF THE DEFINITIONS

42    The appellant’s contention that the Tribunal misconstrued the expressions “intentionally inflicted” and “intended to cause” in the relevant definitions faces an insurmountable hurdle, at least in this Court. As indicated earlier, that hurdle is the decision of this Court in SZTAL. In that case, the 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 the submission, based on Vallance, He Kaw Teh, Giorgianni, Peters and other authorities relating to 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 on the part of the act or of the probable consequences of their acts: 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.

43    The Court in SZTAL also rejected the argument that, in order 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 found (at [59]) that the natural and ordinary meaning of intentional infliction of pain and suffering is an actual subjective intention by the actor to bring about the pain and suffering by the actor’s conduct.

44    For the appellant to succeed he would have to demonstrate that the decision in SZTAL was plainly wrong. He has not even attempted to do so. Ultimately, the appellant’s submissions in relation to this ground amounted to no more than a “formal” submission to preserve his position in the event of a successful High Court appeal in SZTAL.

45    Even putting SZTAL to one side, the appellant faces at least two other significant hurdles in making out this appeal ground.

46    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 construction of the element of intention. The question of construction simply did not arise for consideration having regard to the way the matter was conducted in the Tribunal.

47    Second, and perhaps more importantly, the appellant has failed to point to any evidence that was before the Tribunal 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 of time in a Sri Lankan prison. 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, even for a short period, would inflict severe 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.

48    The primary judge was correct to find that the Tribunal’s adverse factual findings concerning the absence of any evidence of an intention to inflict pain or suffering or cause extreme humiliation were open to the Tribunal. The primary judge was also correct to find that the Tribunal did not misconstrue or misinterpret the definitions of cruel or inhuman treatment or punishment, or degrading treatment or punishment, in s 5(1) of the Act insofar as those definitions required intention on the part of the relevant actor.

49    The appellant’s second ground of appeal accordingly has no merit and is rejected.

Conclusion and disposition

50    The appellant has failed to demonstrate any appealable error on the part of the Circuit Court. His appeal is dismissed with costs.

Associate:

Dated:    16 August 2016