FEDERAL COURT OF AUSTRALIA

SZUUC v Minister for Immigration and Border Protection [2018] FCA 271

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to appeal is dismissed.

2.    The applicant to 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

BANKS-SMITH J:

Background

1    This is an application for an extension of time in which to appeal from a judgment of the Federal Circuit Court: SZUUC v Minister for Immigration of Australia [2016] FCCA 1753. The primary judge dismissed an application for judicial review of a decision of the then Refugee Review Tribunal (Tribunal).

2    The application was listed on 21 February 2017 but was adjourned pending the judgment of the High Court in the appeal against SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. That judgment has now been delivered: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405.

3    In SZTAL, the High Court considered the meaning of ‘intention’ in the context of, relevantly, the consideration of ‘significant harm’ under s 36(2)(aa) and s 36(2A) of the Migration Act 1958 (Cth).

4    The applicant is a male citizen of Sri Lanka of Tamil ethnicity. He arrived on Christmas Island by boat in August 2012 without a visa. In December 2012 the applicant lodged an application for a protection (Class XA) visa.

5    The applicant claimed to fear harm as a result of his Tamil ethnicity, because he sought asylum in Australia unsuccessfully and because he departed Sri Lanka illegally. He said that he had been abused and harassed by police, shot at in an attempted abduction and forced into labour.

6    On 23 July 2013 a delegate of the first respondent refused the application. The delegate found the applicant had no adverse profile with the Sri Lankan government and faced no real chance of risk of harm from the government or its agents.

7    The applicant applied for a review of that decision by the Tribunal.

8    The applicant appeared before the Tribunal. He was represented by a registered migration agent and submissions were filed on his behalf.

9    By decision made 30 June 2014 the Tribunal affirmed the delegate’s decision. The Tribunal found (at [111]) that the country information did not suggest there was a real chance of persecution or significant harm to a person based on their Tamil ethnicity or identity. The Tribunal found that there was no-one in the applicant’s immediate or extended family who was a member of or had any material interest in the LTTE, Tamil separatism, government opposition or politics and no-one else in his family was of adverse interest to the government. The Tribunal found that the applicant would not attract an adverse profile that would attract serious or significant harm. It found that in such circumstances and based upon country information as to what happens to Sri Lankans upon their return, the appellant would be held for between one and four days before being brought before a magistrate and charged with illegal departure. The Tribunal found that a family member would provide a personal surety and he would be released on bail. The Tribunal member accepted that the conditions during the time the applicant is held would be below international standards and unclean and cramped but that there is ‘less than a real chance or risk’ that he would suffer serious or significant harm while being held.

10    Therefore, the Tribunal was not satisfied there was a real risk that the applicant would suffer serious or significant harm.

11    The Tribunal concluded that the applicant did not satisfy the refugee criteria under s 36(2)(a). Nor was he a person in respect of whom Australia has protection obligations under s 36(2)(aa).

12    The proposed ground of appeal asserts error as to the correct test to be applied in considering the meaning of ‘intention’.

13    The first respondent submits that there was no intention finding by the Tribunal. Rather the Tribunal found that given the short period of detention, such detention would not amount to harm. The first respondent says the case is distinguishable from SZTAL because there was no intention finding.

14    The first respondent further submits that there was nothing in the material before the Tribunal to support the contention that the Sri Lankan authorities intend to inflict severe pain or suffering, whether physical or mental, on the applicant as a prisoner detained in prison awaiting prosecution under the Sri Lankan Immigrants and Emigrants Act.

Principles on extension application

15    The principles relevant to the exercise of discretion to extend time are summarised elsewhere: CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354 [4], [5]; BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 [19]; SZQCZ v Minister for Immigration and Border Protection [2012] FCA 91 [23].

16    They are as follows:

(a)    an extension of time will not be granted unless the Court is positively satisfied that it is proper to do so;

(b)    the length of the delay is a relevant factor;

(c)    the appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

(d)    any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time;

(e)    the merits of the substantive appeal, if leave were granted, are properly to be taken into account; and

(f)    an extension of time, even for a short period, may be refused if an appeal has no prospects of success.

Delay

17    The application was filed approximately 17 days after expiry of the time for lodging an appeal from the Federal Circuit Court decision. The applicant deposed by affidavit to the reasons for the delay, stating that he was unable to find a lawyer to act without fee, that he had sought help from a community centre and that he had twice unsuccessfully attempted to file notices that had been rejected. Those attempts were only a short time after the expiry of the time period. I accept that the delay was not unduly long, there is some explanation for it, the applicant had made previous attempts to file a notice albeit late, and the first respondent is not prejudiced. Whether the extension should be granted in this case depends primarily on the merits of the proposed appeal.

The proposed ground of appeal

18    The draft notice of appeal was amended twice. The hearing proceeded on the basis of a third draft prepared by a barrister, although the applicant was unrepresented before me. The applicant confirmed to me that it was the ground in the third draft that he sought to rely upon.

19    The proposed ground of appeal is that:

His Honour should have found that the Tribunal fell into jurisdictional error in dealing with the Applicant’s illegal departure. His Honour should have found that the Tribunal erred in not asking the correct question of intention in respect of the applicant’s illegal departure and thereby committed jurisdictional error. His Honour should have found that the Tribunal in consideration of the intentional aspects of the detention and impliedly/expressly referred intentions of the players carrying out detention (and had misconstrued the provision) and erred in construction of the expression ‘intentionally inflicted’ in the definitions of ‘torture’ and ‘cruel or inhuman treatment or punishment’ in s 5(1) of the Migration Act 1958 and arrived at the conclusion that there was no significant harm under error of construction (at [68]; [111]) in circumstances where such poor conditions and so on constitute the above and erred by the composite fashion of application of the Act.

20    I have referred to [111] of the Tribunal’s reasons above. At [68] of its reasons, the Tribunal recites the country information that suggested that if the applicant were deported against his will by Australia, he would be interviewed, likely charged for illegal departure, held most likely for 24 hours and then brought before a magistrate; that one group of returnees had to wait four days before being brought before a magistrate in conditions which were overcrowded, unclean and cramped but they were not reported to have been subjected to more serious physical harm or threats of harm while in custody.

21    There are two difficulties with the proposed ground. The first is that the Tribunal’s finding was that given the short period of detention that would follow upon the applicant’s return to Sri Lanka, there was less than a real chance he would suffer serious or significant harm. Having made that finding, the Tribunal did not make any finding as to whether any harm would be inflicted intentionally (whether in the context of the definitions of ‘torture’ or ‘cruel or inhuman treatment or punishment’). Accordingly, the appeal ground does not engage with any finding of the Tribunal as to intention.

22    The second difficulty is that in SZTAL, the High Court has confirmed the meaning of ‘intent.’ The Tribunal in SZTAL had expressly considered whether in sending the appellants to prison, Sri Lankan officials could be said to inflict pain or suffering or to intend to cause extreme humiliation.

23    The High Court confirmed that the intention to which the provisions refer is the natural and ordinary meaning of the word ‘intends’. The majority concluded (at [28]-[29]) that the Tribunal's findings were open to it:

In the present cases the question for the Tribunal was whether a Sri Lankan official, to whom knowledge of prison conditions can be imputed, could be said to intend to inflict severe pain or suffering on the appellants or to intend to cause them extreme humiliation by sending them to prison. That question was to be answered by the application of the ordinary meaning of "intends", as the Tribunal concluded.

As has been explained, evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention. In some cases, the degree of foresight may render the inference compelling. But in the present matters, having regard to the evidence before the Tribunal (including evidence about what the Sri Lankan authorities might know), the Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict the requisite degree of pain or suffering or humiliation.

24    Had there been a finding by the Tribunal in this case as to intention, then the decision of the High Court disposes of any issue as to the correct test to be applied, as referred to in the applicant’s proposed appeal ground. Although there was no intention finding, the appeal grounds considered by the primary judge expressly raised the issue of intention and s 36(2)(aa). Those appeal grounds asserted a meaning and test as to intention that conflicts with the High Court’s reasons in SZTAL. For example, ground 2 before the primary judge alleged there was no requirement for the infliction of torture to have an intentional element to constitute significant harm. Ground 4 before the primary judge contended the correct test that the Tribunal should have applied was whether the placement by authorities of the applicant into known conditions was intentional.

25    The primary judge considered those appeal grounds and the Tribunal’s findings (SZUUC v Minister for Immigration of Australia [6], [7], [12], [17], [18]) and considered the Tribunal correctly identified the law in [16] – [18] of its reasons. In those paragraphs, the Tribunal expressly referred to the meaning of ‘significant harm’ and ‘torture’ by reference to the definitions in s 36(2A) and s 5(1). In light of the Tribunal’s factual finding that there was less than a real chance or risk that the applicant would suffer serious or significant harm while being held, there is no error by the primary judge disclosed.

Determination of application

26    In the circumstances, the proposed ground of appeal has no prospect of success.

27    Accordingly, even taking into account the relatively short period of delay in seeking to initiate an appeal, the application for an extension of time in which to appeal is dismissed. The applicant is to pay the first respondent’s costs.

Associate:

Dated:    12 March 2018