FEDERAL COURT OF AUSTRALIA

ANG15 v Minister for Immigration and Border Protection [2018] FCA 225

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1    This is an appeal from orders made and judgment given by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Tribunal): see ANG15 v Minister for Immigration and Border Protection [2016] FCCA 1590. The Tribunal had affirmed a decision of the first respondent (Minister) refusing the grant of a Protection (Class XA) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).

2    By his notice of appeal filed in this Court on 11 August 2016 the appellant raises one ground of appeal by which he challenges the decision in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556 (SZTAL FFC).

3    For the reasons that follow the appeal must fail.

BAckground

4    The appellant is a citizen of Sri Lanka. He arrived in Australia on 1 July 2012 and applied for the Visa on 9 November 2012.

5    The appellant made a number of claims, but the only claim of relevance to his pleaded ground of appeal and to the proceeding in the court below was his claim that, because of his illegal departure from Sri Lanka, upon his return he will be detained and imprisoned, and that he will suffer significant harm because of the poor conditions in Sri Lankan prisons.

6    The appellant also claimed to fear harm because he was a practising Christian. The appellant made submissions, which I set out below, in relation to that claim at the hearing of the appeal.

7    On 20 December 2013 a delegate of the Minister refused the appellant’s application for a grant of the Visa. The appellant applied to the Tribunal for review of that decision.

8    On 23 March 2015 the Tribunal affirmed the delegate’s decision. In doing so, the Tribunal considered and rejected the appellant’s claim that he would suffer significant harm as a result of poor prison conditions in Sri Lanka. The Tribunal’s consideration of that issue was set out in the part of its decision addressing the appellant’s claims for complementary protection pursuant to s 36(2)(aa) of the Act: Tribunal decision record at [148]-[158]. That section provides:

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

…

(aa)     a non‑citizen in Australia … 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…

9    The Tribunal found the risk of harm to the appellant, being a failed asylum seeker who left Sri Lanka illegally, to be remote. The Tribunal’s assessment included the real risk of significant harm. Related to both issues, the Tribunal accepted that the appellant may be remanded in prison for several days and possibly up to a fortnight. At [156] of its decision record, the Tribunal considered whether the conditions in prison would amount to significant harm as follows:

In terms of the applicant's treatment in detention, the Tribunal accepts that prison conditions are poor, particularly in terms of overcrowding, and the Tribunal noted the applicant's adviser's submissions in this respect. The Tribunal does not accept that spending up to a fortnight in jail amounts to 'significant harm’ or that such treatment is intentional as is required by the law in Australia. The Tribunal does not accept that there is a real risk the applicant will be subject to 'torture' as defined, while he is on remand. The definition of 'cruel or inhuman treatment or punishment' in s.5(1) of the Migration Act requires that the pain or suffering be 'intentionally inflicted' on a person and the definition of 'degrading treatment or punishment' requires that the relevant act or omission be 'intended to cause' extreme humiliation.' The Tribunal does not consider that overcrowding, and very unpleasant conditions, which are a product of the general state of the system and negligence and indifference, have the requisite intention required in the definitions of ‘cruel inhuman treatment or punishment' and ‘degrading treatment or punishment '. The Tribunal does not accept therefore 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 that he will suffer significant harm as a consequence of the poor conditions in prison due to overcrowding.

10    The Tribunal also considered the appellant’s claim to fear harm because he was a practising Christian at [99]-[106] of its decision record. The Tribunal rejected that claim. It did not consider that the appellant faced a real chance of serious harm in Sri Lanka in the reasonably foreseeable future as a result of his membership of a particular social group – Christian proselytizers; was not satisfied that the appellant faced a real chance of serious harm in the reasonably foreseeable future should he return to Sri Lanka as a result of his church activities; and was not satisfied that the appellant had suffered physical harm in the past as a result of being a practising Christian.

legislative framework

11    Before turning to the proceeding in the court below and the issues that arise on appeal, it is convenient to set out the definition of significant harm for the purposes of s 36(2)(aa) of the Act.

12    Section 36(2A) of the Act provides that a non-citizen such as the appellant will suffer significant harm if, relevantly:

…

(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.

13    Each of the types of significant harm referred to in the preceding paragraph is defined in s 5(1) of the Act, with a common feature of each definition being that the harm be intentionally inflicted or caused:

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.

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

the proceeding in the federal circuit court

14    The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court in which he raised two grounds described by the primary judge at [5] of his Honour’s reasons as follows:

The applicant now seeks judicial review of the Tribunal’s decision. The applicant relies on two grounds to argue that the decision was affected by jurisdictional error: first: that the Tribunal was wrong to proceed on the basis that “significant harm” relevantly required an element of subjective intention; and secondly, that the Tribunal failed to comply with a direction made by the Minister under s.499 of the Act, namely Ministerial Direction No.56.

(footnotes omitted)

15    The appellant accepted that the first ground of review was bound to fail in light of the decision in SZTAL FFC but wished to preserve his position pending the determination of the issue by the High Court of Australia (High Court). At the time of the hearing before the primary judge, there was an application for special leave in relation to SZTAL FFC before the High Court. The primary judge declined the appellant’s application to adjourn the hearing pending the determination of the special leave application and, if leave was granted, the determination of the appeal in the High Court.

16    The primary judge found that the Tribunal’s approach to, and determination of, the issue of “significant harm” was in line with the decision in SZTAL FFC and thus that the appellant was correct to concede that he must fail on the first ground.

17    The primary judge also rejected the second ground. His Honour noted that Direction 56 contained little detail about the circumstances in which it is appropriate to draw a requisite inference as to intention, noting that there could be many reasons why the relevant inference was not drawn. The primary judge also concluded that the appellant’s challenge failed at a factual level because the Tribunal did not accept that the Sri Lankan authorities knowingly inflicted pain or suffering. In the absence of knowledge that part of Direction 56 upon which the appellant’s challenge rested became irrelevant.

the appeal

18    In his notice of appeal, the appellant raises one ground of appeal in which he contends that the primary judge was wrong to rely on SZTAL FFC.

19    At the time of the filing of his notice of appeal the appellant was legally represented. However, his solicitors subsequently filed a notice of ceasing to act. No written submissions were filed by the appellant in support of his appeal. At the hearing of the appeal, when invited to do so, the appellant made oral submissions.

20    The appellant first referred to some of the events which took place in Sri Lanka noting that, because of those events and their consequences, he had left Sri Lanka to come to Australia. He also said that the Sri Lankan authorities have his details and that returning to Sri Lanka would be fatal for him. He contended that it was now easier for the authorities to make more accusations about people.

21    The main focus of the appellant’s submissions concerned his claim to fear harm because he was a practising Christian. He submitted that the Tribunal did not consider that claim and, by implication, that the primary judge did not consider the claim.

22    I turn first to address the pleaded ground of appeal.

23    In SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405 (SZTAL) a plurality of the High Court (Kiefel CJ, Nettle and Gordon JJ) affirmed SZTAL FCC. Their Honours held that the intent requirement in relation to significant harm as defined in s 5(1) for the purposes of s 36(2A) of the Act will only be satisfied if the perpetrator has an “actual, subjective, intention” to cause pain or suffering and that “knowledge or foresight of a result is not to be equated with intent”. At [15] and [27] the plurality said:

15.    In Zaburoni, the plurality held that a person is ordinarily understood to intend a result by his or her action if the person means to produce that result. What is involved is the directing of the mind, having a purpose or design. So understood, intention refers to a person's actual, subjective, intention, as the Tribunal and Kenny and Nicholas JJ in the Full Court concluded.

…

27.    An intention of a person as to a result concerns that person's actual, subjective, state of mind. For that reason, as the plurality in Zaburoni were at pains to point out, knowledge or foresight of a result is not to be equated with intent. Evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn, but foresight of a result is of evidential significance only. It is not a substitute for the test of whether a person intended the result, which requires that the person meant to produce that particular result and that that was the person's purpose in doing the act.

(footnotes omitted)

24    In light of the decision in SZTAL, the appellant’s pleaded ground in his notice of appeal must fail.

25    That leaves the appellant’s claim that the Tribunal failed to consider his claim to fear harm because he was a practising Christian. First, the Tribunal did in fact consider that claim at [99]-[106] of its decision record and, contrary to the appellant’s submission, it set out in some detail the claims made by the appellant as part of its consideration: see [63]-[73] of the Tribunal’s decision record.

26    Secondly, insofar as the appellant contends that the primary judge did not consider the claim, or did not consider the claim that, in turn, the Tribunal failed to consider his claim, I note that this ground was not raised before the primary judge. Accordingly, the appellant requires the leave of this Court to raise the ground on appeal. As submitted by counsel for the Minister I would not grant that leave because the ground is bound to fail. The Tribunal clearly considered the appellant’s claim to fear harm because he was a practising Christian.

27    For completeness, I also note that, in my opinion, the primary judge’s treatment of the second ground raised before him does not disclose any appealable error.

conclusion

28    In light of the reasons set out above the appeal should be dismissed and the appellant ordered to pay the Minister’s costs.

Associate:

Dated:    7 March 2018