FEDERAL COURT OF AUSTRALIA

AYI15 v Minister for Immigration and Border Protection [2016] FCA 1554

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NICHOLAS J:

Introduction

1    This is an appeal from a judgment of a Judge of the Federal Circuit Court of Australia (Judge Street) given on 19 October 2015. By that judgment, the primary judge dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) dated 22 May 2015 affirming a decision of a delegate of the first respondent (“the Minister”) not to grant the applicant a protection (Class XA) visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (“the Act”).

2    The appellant is a citizen of Sri Lanka. He left Sri Lanka and arrived in Australia as an unauthorised boat arrival on 29 May 2012. The appellant claimed fear of persecution in Sri Lanka for reason of his mixed Tamil ethnicity and imputed pro-Liberation Tigers of Tamil Eelam (“pro-LTTE”) political opinion. The appellant claimed to fear he would be imprisoned, tortured, abducted or killed if he were to return to Sri Lanka. The appellant also claimed to fear harm as a failed asylum seeker or because he departed Sri Lanka illegally.

3    The appellant applied for a protection visa on 19 September 2012, but that application was refused by a delegate of the Minister following an interview on 24 July 2013.

4    The appellant sought review of the Minister’s decision on 30 August 2013. By its decision the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. The Tribunal was not satisfied that there was a real chance that the appellant would be persecuted for reason of his mixed Tamil ethnicity and imputed pro-LTTE political opinion in the reasonably foreseeable future or that his fear of persecution was well-founded. Nor was the Tribunal satisfied, inter alia, that the consequences the appellant would face on return to Sri Lanka as a result of his illegal departure were such as to entitle him to complementary protection in Australia.

Relevant Statutory Provisions

5    Section 36 of the Act relevantly provides:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(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

…

(2A)    A non-citizen will suffer significant harm if:

…

(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.

6    Section 5 of the Act includes the following definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”:

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.

The Covenant referred to in these definitions is the International Covenant on Civil and Political Rights (“ICCPR”), a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986 (Cth).

7    Section 499 of the Act relevantly provides:

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

(1A)    For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

…

Direction No. 56

8    Direction No. 56 was issued pursuant to s 499 of the Act on 21 June 2013. It relevantly provides:

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’

…

9    The second of the documents referred to in clause 2 of Direction No. 56 (“the Guidelines”) contain guidelines and related information concerning the background, purpose and application of the complementary protection provisions of the Act. The purpose of the Guidelines is to provide advice and assistance to decision makers on the law relevant to the assessment of whether Australia owes protection obligations to applicants under the complementary protection provisions of the Act. In particular, the Guidelines contain advice for decision makers concerning the meaning of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” as defined in s 5(1) of the Act. The Guidelines state in Part 14 that:

14. Torture, cruel or inhuman treatment or punishment and degrading treatment or punishment

The terms ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or Punishment’ are defined in s 5(l) of the Act. The definitions derive from, and require decision makers to tum their minds to, international jurisprudence.

The definitions have been provided to assist decision makers to determine whether a particular type of claimed harm amounts to significant harm. They are also intended to confine significant harm to acts which could engage a non-refoulement obligation.

10    The Guidelines state in Parts 21 and 22:

21. Severe pain or suffering

An act or omission that intentionally inflicts severe pain or suffering, but is not inflicted for one of the purposes listed in the definition of torture, will amount to cruel or inhuman treatment or punishment provided it is inconsistent with Article 7 of the ICCPR. If relevant, also consider the section Is the act or omission inconsistent with Article 7 of the ICCPR.

22. Pain or suffering and ‘reasonably regarded as cruel or inhuman in nature’

Alternatively, cruel or inhuman treatment or punishment may be an act or omission that intentionally inflicts pain or suffering (but which does not meet the threshold of severity to amount to torture) so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature.

If, taking into account all relevant considerations, pain or suffering is intentionally inflicted by an act or omission that can be regarded as cruel or inhuman in nature, then that ill-treatment would constitute cruel or inhuman treatment or punishment, provided it is inconsistent with Article 7 of the ICCPR.

Decision makers should interpret this part of the definition by reference to the international jurisprudence on the meaning of cruel or inhuman treatment or punishment in the context of Article 7 of the ICCPR. For further guidance on this, see Is the act or omission inconsistent with Article 7 of the ICCPR.

The assessment of whether particular conduct or conditions amounts to cruel or inhuman treatment or punishment is subjective, in that it depends on the characteristics of the victim (such as sex, age, state of health). For example, the exploitation of phobias or particular cultural taboos could conceivably amount to cruel or inhuman treatment or punishment for one person where it may not for another person.

Even if decision makers are satisfied that an act or omission, in all the circumstances, could reasonably be regarded as cruel or inhuman in nature, they would also need to be satisfied that the act or omission would be inconsistent with Article 7 of the ICCPR in order to conclude that it meets the definition of cruel or inhuman treatment or punishment.

(Underlining original)

11    The Guidelines state that the definition of the term “degrading treatment or punishment” is based upon the United Nations Human Rights Committee (“UNHRC”) jurisprudence. The Guidelines state in Part 25:

25. Will cause extreme humiliation

To meet the definition of degrading treatment or punishment, an act or omission must cause extreme humiliation. It is intended that the meaning of the term ‘extreme humiliation’ will be informed by international jurisprudence considering when treatment would constitute degrading treatment or punishment in breach of Article 7 of the ICCPR.

Treatment is degrading if it is such as to arouse in the person subjected to it feelings of fear, anguish and inferiority capable of humiliating and debasing the person and possibly breaking their physical or moral resistance. Treatment may also be said to be degrading if it grossly humiliates a person in front of others or drives the person to act against their will or conscience.

Whether the treatment or punishment is performed in public or not may be a relevant factor in determining whether it causes extreme humiliation, although the failure to publicise particular treatment or punishment will not prevent it from being characterised as degrading.

For example, the UNHRC has held that certain practices exercised for the purpose of humiliating prisoners and making them feel insecure constituted degrading treatment. These included repeated solitary confinement, subjection to cold and persistent relocation to a different cell.

A measure that does not involve physical ill-treatment but lowers a person in rank, position, reputation or character may also constitute degrading treatment but again provided it is of a minimum level of severity, thereby interfering with human dignity. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.

The UNHRC has stated that ‘for punishment to be degrading, the humiliation or debasement involved must exceed a particular level and must, in any event, entail elements beyond the mere fact of deprivation of liberty’. For more information on when prison conditions may amount to degrading treatment or punishment, see Imprisonment / Prison conditions.

The assessment of whether particular conduct or conditions amounts to degrading treatment or punishment is subjective, in that it depends on the characteristics of the victim (such as sex, age, state of health). For example, the exploitation of phobias or particular cultural taboos could conceivably amount to degrading treatment or punishment for one person where it may not for another person. It may also be appropriate to take into account the societal context within which the harm is occurring.

There is some degree of overlap between the degree of humiliation described and mental suffering (included in the definition of cruel or inhuman treatment or punishment). A person who suffers severe, but not extreme, humiliation, may fall within the definition of ‘cruel or inhuman treatment or punishment’ on the basis of mental suffering, provided the treatment would be inconsistent with Article 7 of the ICCPR.

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.

Unreasonable

In determining whether the treatment is unreasonable, the decision maker should apply the principle of proportionality in light of the specific circumstances of the case. Although the use of force may be justified or necessary in connection with an arrest or breaking up a violent demonstration, even the use of mild force (such as slapping) may constitute degrading treatment when this contradicts the principle of proportionality in light of the specific circumstances of the case.

(Endnotes omitted. Underlining original)

12    The Guidelines refer at some length to the matter of imprisonment and detention in the context of Article 7 of the ICCPR which states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment …”. Part 29 of the Guidelines includes the following:

Imprisonment / Prison conditions

Detention is not of itself a breach of Article 7, although particularly harsh conditions of detention may constitute a violation of Article 7. Prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity.

As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.

Examples of conditions which have been held to constitute breaches of Article 7 include:

•    extremely cramped or unsanitary conditions, exposure to cold or inadequate ventilation or lighting

•    lack of adequately nutritious food or water, lack of adequate clothing or a separate bed, threats of torture or death, lack of opportunity for adequate exercise

•    prolonged solitary confinement or total isolation

•    denial of medical treatment

•    harsh rules of conduct restricting fundamental rights of prisoners; the use of harsh punitive measures such as frequent resort to solitary confinement or being forced to maintain a certain position for prolonged periods of time; unfair procedures for deciding on disciplinary measures; inadequate protection against reprisals by warders; lack of a credible complaints mechanism and frequent use of protective measures such as leather handcuffs and

•    violent treatment in detention (force may be used to enforce discipline, but must be proportionate in light of circumstances), including acts such as beatings or assaults by prison warders, repeated death threats, mock executions, theft or destruction of personal possessions or displaying prisoners in a cage to the press.

The existence of one relatively minor condition (for example, a small cell) may not be sufficient to breach Article 7. However, the accumulation of a combination of poor or unreasonably restrictive conditions (for example, a small cell, overcrowding, prolonged detention and lack of opportunities for exercise) may raise the severity of the treatment above the necessary threshold.

The assessment of whether particular conduct or conditions amounts to torture, cruel, inhuman or degrading treatment or punishment is subjective, in that it depends on the characteristics of the victim (such as sex, age, state of health). For example, the exploitation of phobias or particular cultural taboos could conceivably amount to cruel, inhuman or degrading treatment or punishment for one person whereas it may not for another person.

If an applicant claims that they face a disproportionately long period of time in prison, this should be considered as a cumulative factor that may render other conditions cruel, inhuman or degrading. For example, overcrowding in a cell for a person detained overnight may not breach Article 7, although it may do so if a person faces a lengthy prison sentence. There are limited circumstances where prolonged detention itself may amount to a breach of Article 7. These are where prisoners on death row suffer mental anguish while waiting for the determination of their fate. It is also arguable that sentencing a juvenile to life imprisonment without the possibility of release may constitute a breach of Article 7.

[…]

(Endnotes omitted)

13    This is followed by a discussion in Part 30 of the Guidelines of various decisions of the UNHRC concerning complaints relating to conditions of detention. Of the six decisions discussed, four concern cases in which the complainant was physically abused or beaten by prison officers or guards and one was concerned with a failure to provide the complainant with adequate medical treatment. The third decision, in which it was found that there was violation, concerned the transportation and “strip searching” of the complainant.

The Tribunal’s Decision

14    The Tribunal’s record of decision and reasons (“Reasons”) is lengthy and, as counsel for the appellant correctly observed, meticulously footnoted (there are 40 footnotes).

15    Those parts of the Reasons that are relevant to the issues that arise in this appeal appear at [19] and [89] to [99], where the Tribunal considers the appellant’s complementary protection claims under s 36(2A)(d) and (e) of the Act. The Tribunal said:

[19]    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the tribunal is required to take account of policy guidelines prepared by the Department of Immigration PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines- and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The tribunal has had regard to DFAT Country Information Report, Sri Lanka, 16 February 2015 (DFAT Report) and DFAT Thematic Report - People with links to the LTTE 3 October 2014 (DFAT LTTE Report).

[…]

[89]    The tribunal finds based on the country information that the applicant would be granted bail once taken before a court. As noted above the applicant may be remanded for a one to several days if he is unable to be brought immediately before a court.

[90]    Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence. Prison conditions in Sri Lanka have been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”. The US Department of State, citing an assessment by a former UN Special Rapporteur on Torture, also reported that “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment”.

[91]    The applicant’s agent referred to the case of WZAPN v MIBP [2014] FCA 947 and submitted that being remanded in custody (albeit a short period) was a threat to the applicant's liberty and consequently significant harm. The Full Court of the Federal Court has since held that WZAPN was wrongly decided. The tribunal is not satisfied that any period in custody not [sic] matter how short amounts to significant harm.

[92]    In post hearing submissions the applicant's agent referred to country information which they submitted indicated that returned asylum seekers are remanded for more than a few nights before being granted bail. It was submitted that the time spent in custody on return varies with reports of persons being detained for up to 15 days and with some individuals detained for up to two weeks. The tribunal notes the reports referred to by the agents stated that 27 returnees were granted bail immediately and five were remanded for two weeks and in another case 47 persons were granted bail immediately and 36 were remanded 14-15 days. Those who were remanded had attempted to reach Australia by boats on more than one occasion and/or had facilitated the illegal departure. This information accords with the DFAT advice that those who are not charged with repeat offences or facilitating a departure are granted bail quickly. The applicant is not a repeat offender and did not facilitate the departure.

[93]    The tribunal has considered whether a short period of remand gives rise to a real risk the applicant will suffer significant harm.

[94]    ‘Torture’ is defined in the Act [sic] an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on a person to obtain information or a confession, to punish to intimidate or coerce or for a discriminatory reason.

[95]    There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. Freedom from Torture reported on a number of claims of torture in 2012 and identified that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”. The tribunal has found, for the reasons set out above, that the applicant does not have a perceived association with the LTTE which would cause him to be targeted in the prison system. The evidence before the tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been subjected to pain or suffering by an intentionally inflicted act or omission intended to obtain information, a confession, to intimidate or coerce or for any other reason whilst on remand.

[96]    ‘Cruel or inhuman treatment or punishment’ is defined in the Act as an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on a person; or an act or omission by which physical or mental pain or suffering is intentionally inflicted on a person so long as the act or omission could reasonably be regarded as cruel or inhuman. ‘Degrading treatment or punishment’ is defined in the Act as an act or omission that causes and is intended to cause extreme humiliation which is unreasonable.

[97]    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 that in the applicant’s case as a young man 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.

[98]    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.

[99]    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. In SZTKF v MIBP the applicant argued that the tribunal applied the incorrect test in relation to significant harm by requiring an intentional element in respect of the overcrowding and poor conditions, and that the correct test was to assess whether the authorities’ placement of the applicant into those known conditions was intentional thereby exposing the applicant to significant harm. The court held that the proposition that intention is made out if there is an intentional act that exposes a person to the risk of serious harm is incorrect. ‘Intention’ in relation to a particular act or state of affairs requires advertence to the act or state of affairs and the desire to commit the act or bring about the state of affairs. Therefore in relation to the poor prison conditions in Sri Lanka there is no intention on the part of the Sri Lanka authorities to harm the applicant. The tribunal finds that a period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm within the meaning of s 36(2A) or s 5 of the Act.

[100]    The tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm. As discussed with the applicant and set out above the country information indicates that the penalty most likely to be imposed on the applicant is a fine. Based on this information, the tribunal finds that the likelihood of a prison sentence is remote and not a real risk.

(Footnotes omitted)

The Primary Judge’s Decision

16    The appellant sought judicial review of the Tribunal’s decision. By his amended application the appellant relied on the following grounds of review:

(1)    The Tribunal failed to comply with s 414 of the Act because it failed to assess the applicant’s claim for protection on the basis of membership of the social group of illegal departees from Sri Lanka (“the Social Group”).

(2)    In the alternative to ground 1 above, if the Tribunal considered the applicant’s claim for protection based on his membership of the Social Group, the Tribunal misconstrued or misapplied s 91R(1) of the Act.

(3)    The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Act.

(4)    The Tribunal misconstrued or misapplied ss 5 and 36(2A) of the Act.

After referring to [90] and [97]-[100] of the Tribunal’s Reasons, the primary judge said:

[12]    In substance, it was contended that the court should infer that the Tribunal had failed to have an intellectual engagement with the PAM3 in accordance with direction 56, and that this should be inferred by reason of the absence of an express acknowledgement of having actually had regard to the guidelines, and the absence of reference to international jurisprudence. It was submitted on behalf of the applicant that the findings could be explained by reference simply to the country information and the submissions that had been put to the Tribunal without the Tribunal properly engaging in an intellectual deliberation of the application of the PAM3.

[13]    I reject that submission. It is clear from paras 90 and 97 that this is a case where the Tribunal descended into the nature of the conditions to which the applicant would be exposed. In my opinion, that is a clear basis upon which the decisions in SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552 and Plaintiff S15 /2002 v Commonwealth (2003) 211 CLR 476 can be distinguished. The reference to overcrowding by the Tribunal is not one which should be inferred to have come just from country information or the applicant’s submissions. I reject the contention that the last sentence of para 19 implies some exclusivity in regard to information which the Tribunal was required to take into account. It is clear from the Tribunal’s reasons in paras 64 through to 70 that the Tribunal had regard to a broad range of country information.

[14]    Counsel for the applicant sought to argue that by reference to particular parts of the PAM3 and in particular pp 6, 22, 23, 24, 30 to 34 and p 46, footnote 62 and the failure to make reference to any international jurisprudence that this was a basis upon which an inference should be drawn that there was no intellectual engagement with the guideline. I reject that submission. The reference to a deliberation [sic] by the Tribunal in relation to overcrowding and the conditions referred to in para 90 are all consistent with a proper engagement with the content of PAM3. The absence of reference to international jurisprudence is not a basis in light of the reasons read as a whole to infer a failure to have regard to and to apply the PAM3 guidelines. Ground 3 is not made out.

[15]    Ground 4 as put was a formal submission in light of authority that the applicant accepted which was likely to be followed and could not be said to be clearly incorrect. It was submitted that the matter should be adjourned pending the determination of proceedings in the Full Court of the Federal Court. That adjournment was opposed by the first respondent. Part of the reason why it was opposed was because of the findings by the Tribunal in this case in paras 96 and 97 …

The Appellant’s Grounds of Appeal

17    The appellant appeals from the primary judge’s judgment by a notice of appeal filed 9 November 2015. The appellant’s grounds of appeal are as follows:

(1)    The primary judge erred at [13]-[14] in holding that, because the second respondent (Tribunal) had discussed overcrowding and prison conditions, it could not be inferred that the Tribunal had failed to have regard to PAM3: Refugee and humanitarian – Complementary Protection Guidelines (Guidelines).

(2)    The primary judge erred at [15]-[16] in failing to hold that the Tribunal had misconstrued the intent requirements attaching to the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” under the Act at [99] of the Tribunal’s decision.

(Emphasis original)

Consideration

Ground 1

18    The appellant submitted that the Guidelines were relevant to the appellant’s claims and the Tribunal failed to take account of them. The Minister accepted that the Guidelines were relevant to the Tribunal’s assessment of the appellant’s claims given that the complementary protection provisions (s 36(2A)(d) and (e)) were engaged, but that it is apparent from [19] of the Tribunal’s Reasons that the Tribunal did take account of them. Both parties accepted that the issue of whether the Tribunal took account of the Guidelines was essentially one of fact.

19    The appellant’s submissions drew attention to the absence of any reference in the Reasons to the Guidelines except for what appears in [19]. The appellant also drew attention, by way of contradistinction, to the detailed references in [90]-[103] of the Reasons to prison conditions in Sri Lanka including the discussion of poor and overcrowded prison conditions in [97]-[98] and the country information cited in the footnotes to those paragraphs. It is common ground that none of those paragraphs or footnotes refer to the Guidelines. It is against that background that the appellant submitted that it should be inferred, in spite of what appears in [19] of the Reasons, that the Tribunal did not take account of the Guidelines.

20    The appellant relied upon the process of reasoning referred to in the Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 which concerned s 430(1) of the Act. Section 430(1) requires the Tribunal in a written statement to set out (inter alia) the reasons for the decision, the findings on any material questions of fact, and to refer to the evidence or any other material on which the findings of fact are based. McHugh, Gummow and Hayne JJ said at [69]:

It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(l)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

(Emphasis added. Footnotes omitted)

21    The terms of Direction No. 56 make clear that the Tribunal is only required to take account of the Guidelines to the extent that they are relevant to the decision under consideration. In the present case it is not open to infer that the Tribunal’s failure to refer to the Guidelines (beyond what appears in [19]) can be explained on the basis that they were not relevant. Both parties accept that they were relevant.

22    The appellant submitted that it is unthinkable that the Tribunal would not have made any reference to the Guidelines (beyond what appears in [19]) in this case if it had taken them into account. I do not accept this submission.

23    In his submissions, counsel for the appellant referred me to the Guidelines in some detail including the discussion of some of the UNHRC decisions in which breaches of Article 7 of the ICCPR were found to have occurred in circumstances involving lawful detention in extremely cramped or unsanitary conditions. One of these decisions is referred to in an endnote (note 62) to the Guidelines which refers to the UNHRC decision in Portorreal v Dominion Republic, Comm No 188/1984 UN Doc CCPR/C/OP/2 (5 November 1987) in which it held that Mr Portorreal was “subjected to inhuman and degrading treatment and to lack of respect for his inherent human dignity during detention.”

24    I was taken to the UNHRC’s reasons for decision in Mr Portorreal’s case which concerned his unlawful detention for some 50 hours in what were alleged to be overcrowded and unsanitary conditions. The appellant sought to support the drawing of the inference that, despite what appears in [19] of the Reasons, the Tribunal did not take account of the Guidelines on the basis that Mr Portorreal’s circumstances and experience were not dissimilar to those that may be experienced by the appellant if he is required to return to Sri Lanka.

25    Mr Portorreal was, according to the UNHRC’s reasons for decision, a Law Professor who appears to have been detained for political reasons, without ever being informed of the reasons for his arrest, apparently with a view to intimidating and damaging the reputation of the political association of which he was the Executive Secretary. I do not think any inference can be drawn from the failure to refer to this decision or any of the other six decisions referred to in Part 30 of the Guidelines which I have previously discussed. None of them appear to me to have any particular relevance to the appellant’s case. I certainly do not regard them as being of such relevance as would justify the drawing of an inference, based upon the absence of any specific reference to them in the Tribunal’s Reasons, that the Tribunal did not take account of the Guidelines.

26    In its Reasons at [19] the Tribunal expressly noted that it was required to take account of the Guidelines. On a fair reading of the Tribunal’s Reasons, I think it should be accepted that the Tribunal did this: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 271-272.

27    I came to the same conclusion in a very similar matter in SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 (“SZTCV”) at [14]. In that matter, the Tribunal included the following paragraph in its reasons:

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian- Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - to the extent that they are relevant to the decision under consideration. I have done so.

(Emphasis added)

See also AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 at [46]-[49] (per Barker J).

28    In the present case, as counsel for the appellant stressed, the words “I have done so” do not appear in the corresponding paragraph and he sought to distinguish SZTCV on that basis. However, in my view this is far from determinative. In circumstances where the Tribunal expressly acknowledged that it was required to take account of the Guidelines, I would not infer merely from the absence of these additional words that it had not done so.

29    It is important to recognise that the Tribunal was not required to consider whether para (c) or (d) of the definition of “cruel or inhuman treatment or punishment” applied in the appellant’s case because it was not satisfied that either para (a) or (b) was engaged. The same point can be made in relation to para (a) and (b) of the definition of “degrading treatment or punishment”. However if, on the other hand, the Tribunal was satisfied that the appellant would be the subject of (for example) pain or suffering intentionally inflicted by a cruel or inhuman act or omission (see para (b)) if he were to return to Sri Lanka, the Tribunal would then need to consider whether that act or omission should be disregarded because it was not an act or omission inconsistent with Article 7 of the ICCPR. It would be much easier to draw the inference that the appellant says should be drawn in this case if the Tribunal’s process of reasoning had required it to consider the scope of Article 7. In this case it was not required to do so.

30    I am not persuaded that the Tribunal failed to take account of the Guidelines. Accordingly, the appellant’s first ground of appeal must be rejected.

Ground 2

31    At the hearing of the present appeal it was submitted that I should reserve my judgment until the Full Federal Court (Kenny, Buchanan and Nicholas JJ) delivered its judgment in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 (“SZTAL”). That judgment was delivered on 20 May 2016. By that judgment, the Full Court dismissed three related appeals from the Federal Circuit Court. On 16 November 2016 the High Court granted the appellant in SZTAL and the appellant in one of the related matters special leave to appeal. These appeals will not be heard and determined until some time next year.

32    In the present case, the appellant sought to raise under ground 2 of his notice of appeal the same point of law that was raised in SZTAL (the first ground of appeal in that matter) that was decided by the plurality (Kenny and Nicholas JJ) against the appellant in that case. It was accepted by the appellant in the present case that the judgment in SZTAL on this point of law would determine whether his ground 2 succeeds or fails.

33    The plurality said at [37]-[39]:

[37]    The first ground of appeal is relevant to the appellants’ claim to meet the criterion for a protection visa in s 36(2)(aa) of the Migration Act. In order to meet that criterion, the non-citizen appellants had to satisfy the Minister that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm.

[38]    A non-citizen will suffer the “significant harm” referred to in s 36(2)(aa) in the circumstances set out in s 36(2A) […]. The appellants relied in one way or another on paragraphs (c), (d) and (e) of s 36(2A), the effect of which was that a non-citizen will suffer the significant harm if he or she will be subjected to “torture”, “cruel or inhuman treatment or punishment”, or “degrading treatment or punishment”. These concepts are defined in s 5(1) of the Migration Act […]

[39]    Under Ground 1, the appellants contended that the learned primary judge erred in holding that the expression “intentionally inflicted” in the relevant definitions required an actual subjective intention to inflict or cause the relevant harm. As we have seen, they argued that severe pain or suffering would be “intentionally inflicted” and extreme humiliation, “intended to [be] cause[d]”, by a person who is aware that the act will in the ordinary course of events inflict such pain or suffering, or cause such humiliation. That is, senior counsel for the appellants submitted that it was enough to satisfy the relevant definitions that the perpetrator “just [was] aware of the conditions and that in the ordinary course putting someone in gaol will expose them to those conditions”.

(Emphasis original)

34    The appellant’s submission in SZTAL summarised in [39] of the reasons was rejected by the plurality. It was accepted that the relevant definitions in s 5(1) of the Act contained an element akin to specific intent to cause the prescribed result and that, in the case of “torture” and “cruel or inhuman treatment or punishment”, there must be an intention to inflict severe pain and suffering on the victim. Similarly, it was also accepted that in the case of “degrading treatment or punishment”, there must be an intention to cause the victim “extreme humiliation” which is unreasonable.

35    After the grant of special leave to appeal in SZTAL, the appellant requested that I defer delivering judgment in this appeal until after the appeal in that case had been heard and determined. I have decided not to defer delivering judgment because it is my view that, even if the appeal in SZTAL succeeds, it will not affect the ultimate outcome in this appeal.

36    The Tribunal did not accept that in the appellant’s case a relatively short period of time spent in prison while on remand, which might result in him experiencing “discomfort”, would amount to “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” as defined in s 5 of the Act.

37    When [97] of the Reasons is read fairly and in context, it seems to me that it reflects the Tribunal’s lack of satisfaction that the conditions in which the appellant would be held while on remand would give rise to either “severe pain or suffering” or “extreme humiliation which is unreasonable”.

38    It is true that the Tribunal’s Reasons in [97] refer to the matter of intention. However, I do not read this paragraph as reflecting an acceptance by the Tribunal that either of the relevant definitions would have been satisfied but for the absence of either an intention to inflict severe pain or suffering or an intention to cause extreme humiliation which is unreasonable. On the contrary, I think it is apparent from what appears in [99] of the Reasons, in which the matter of intention is addressed directly, that the lack of intention on the part of the Sri Lankan government provided a separate and independent basis for the Tribunal not being satisfied that the requirements of the relevant definitions were met.

39    So understood, [99] of the Reasons, which raises the point that was decided against the appellant in SZTAL by the Full Court, does not, in my view, even if SZTAL is held by the High Court to have been wrongly decided, justify the making of an order setting aside the Tribunal’s decision: see, for example, SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at [94]-[102] (per McKerracher J) and [114] (per Reeves J). In my opinion, the putative error of law relied upon by the appellant could not have affected the outcome of the Tribunal’s review of the appellant’s claims.

Disposition

40    In the circumstances, I am satisfied that ground 1 and ground 2 have not been made out and that the primary judge’s decision to dismiss the appellant’s application for judicial review was correct. The appeal will be dismissed. The appellant must pay the Minister’s costs of the appeal as taxed or agreed.

Associate:

Dated:    22 December 2016