FEDERAL COURT OF AUSTRALIA

SZWAA v Minister for Immigration and Border Protection [2018] FCA 295

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

LEE J:

a    background

1    The appellant is a Sri Lankan citizen who entered Australia in August 2012 as an unauthorised maritime arrival. He applied for a protection visa in May 2013, which application was refused by a delegate of the first respondent (Minister) in September that year. The appellant applied to what was then known as the Refugee Review Tribunal (Tribunal) for review of the Minister’s decision.

2    The appellant’s claims, subject to two matters to which I will return shortly, have remained consistent, and can be summarised broadly as follows:

(a)    he claims a fear of harm in Sri Lanka due to his Tamil ethnicity, noting that he lived in an area controlled by the Liberation Tigers of Tamil Eelam (LTTE). The appellant claims that, during the period of the prolonged conflict between the LTTE and the Sri Lankan authorities, he undertook some training with the LTTE and, indeed, submitted during the hearing before me that he had assisted in “building bunkers” for the LTTE;

(b)    on one occasion, he and his cousin were stopped by Sri Lankan army officers who questioned and beat them; he further claims that, following the end of hostilities, the Sri Lankan authorities, including the army, targeted people who trained with the LTTE;

(c)    that he would be imprisoned, tortured or killed by the Criminal Investigation Department (CID) (presumably associated with the Sri Lankan police) because he is a Tamil and he would be suspected of having assisted the LTTE;

(d)    that his family’s land had been taken away and his cousin had been killed by the Sri Lankan army;

(e)    that he fears persecution upon his return to Sri Lanka as a failed asylum seeker.

3    During submissions before me, the appellant raised two further matters relating to his claims:

(f)    an affidavit sworn by him on 24 September 2016, which included material which post-dated the Tribunal’s review (this material had been referred to in the reasons of the primary judge in the Federal Circuit Court at [34], a matter to which I will return at [17] below);

(g)    without evidence – that his 19 year old cousin had been killed by the Sri Lankan army in December 2017 (an event which post-dated the primary judgment which is the subject of this appeal). Again, I return to this matter at [18] below.

4    Returning to the chronology, after hearing the appellant’s evidence and receiving further information from him, the Tribunal concluded that the appellant had not been truthful concerning his claimed involvement with the LTTE nor the claimed interest of the Sri Lankan authorities in such involvement.

5    In doing so, the Tribunal placed substantial weight on the fact that the claims made in the protection visa application had some material differences from the evidence given during the course of the appellant’s entry interview, including the fact that at the entry interview he claimed nothing had happened to him since 2009, whereas in his protection visa application he made claims about events which occurred in 2012. The Tribunal concluded that there was no real chance of persecution for a convention reason on the basis of the appellant’s claims considered individually or collectively (and the Tribunal’s assessment of the appellant’s claims is dealt with comprehensively in the primary judgment at [17]-[28]).

6    The Tribunal went on to consider the complementary protection criterion and noted that it did not accept that there were substantial grounds for believing that there was a real risk the appellant would suffer significant harm during any period he may spend in prison on remand. While the Tribunal did accept that the appellant may be remanded in conditions that were uncomfortable, it nevertheless rejected the notion that spending a limited period in such conditions amounted to significant harm or that such treatment was intentionally inflicted.

7    The appellant sought judicial review of the Tribunal’s decision by way of an amended application filed in May 2015 in the Federal Circuit Court. Like in this Court, he did not file written submissions, and it is apparent that the primary judge was at some pains to elicit from the appellant any basis upon which he sought to call into question the Tribunal’s decision or its procedures: see [32]-[65].

8    In broad terms, the primary judge determined that it was appropriate to dismiss the application because:

(a)    the oral submissions made at the hearing sought an impermissible merits review and were not arguments which could establish jurisdictional error: see [33] and [59]-[64];

(b)    neither of the grounds in the original application nor the amended application had been made out: see [35]-[42]. It was in this context that her Honour made a finding that the Tribunal did not fall into jurisdictional error in the manner in which it considered intentional infliction of harm for the purposes of the complementary protection criteria (a topic to which I will return below): see [46]-[50].

9    It followed that the primary judge was not satisfied that any jurisdictional error had been established and dismissed the application with costs.

b    the scope of the appeal

10    The appellant initially appealed against the dismissal of his application for judicial review by way of a notice of appeal filed on 7 November 2016. The ground of appeal in that notice was as follows:

1. Federal Circuit Court Judge failed to find that the AAT made a jurisdictional error.

Particulars

Tribunal made a jurisdictional error in that it failed to deal with all my claims and the Federal Court Judge erred in law by not finding the AAT wrong.

(Errors in original)

11    It appears that by January 2017, the appellant had secured the services of legal representatives, who then determined that it was appropriate to file amended grounds of appeal. The amended notice of appeal filed on 27 January 2017 is the current process before the Court and the sole ground of appeal now maintained is as follows:

1. The plurality in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 (SZTAL) erred in construing the words “intentionally inflicted” in the definition of cruel or inhuman treatment or punishment, and the words “intended to cause” in the definition of degrading treatment or punishment in s 5(1) of the Migration Act 1958 (Cth) (Intent Requirements).

a. In dismissing the appellant’s case, the primary judge relied on the plurality’s construction of the Intent Requirements in SZTAL: at [50].

b. The Tribunal held that, in circumstances where the appellant faced a real risk of imprisonment for up to two weeks in poor conditions that were overcrowded, cramped, uncomfortable and unsanitary, “indifference” on the part of the Sri Lanka government or those responsible for imprisoning the applicant was not sufficient to show that the pain or suffering that would be caused to the applicant was intentionally inflicted: Tribunal’s decision at [52], [59] and [63].

c. The Tribunal’s approach was consistent with the plurality’s construction of Intention Requirements in SZTAL. As the plurality’s construction is incorrect, the Tribunal erred in taking such an approach.

(Errors and bolding in original)

c    consideration

12    As can be seen from the terms of the amended notice of appeal, the solicitor then acting for the appellant sought to advance a contention that the decision of the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 (Kenny, Buchanan and Nicholas JJ), which was subsequently the subject of argument in April 2017 before the High Court, involved an incorrect construction of the intention requirements under the Migration Act 1958 (Cth) (Act).

13    On 6 September 2017, the High Court delivered judgment in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 (SZTAL (HCA)), in which, by majority, the Court held that when the complementary protection regime was introduced into the Act in 2012, it would have been a straightforward matter for the legislature to incorporate a definition of intention which was different from the natural and ordinary meaning one would give to the notion of ‘intent’, when used in the context of expressions such as “intentionally inflicting” and “intentionally causing” (at 942 [23] per Kiefel CJ, Nettle and Gordon JJ). The Court found that intention requires proof of actual, subjective intention and not, as was described by Edelman J, ‘oblique’ intention which, properly understood, is not intention at all but rather a proxy for recklessness or a mental state other than intention: see SZTAL (HCA) at 943 [26], 943 [27] (Kiefel CJ, Nettle and Gordon JJ), 949-950 [67], 955-956 [96] and 957 [103] (Edelman J). It followed that the legal basis upon which the amended grounds of appeal had been based (that the Tribunal’s approach, which was consistent with the construction adopted by the Full Court, was erroneous) fell away.

14    The primary judge’s reasoning in respect of the intentional infliction of harm is contained in [50] as follows:

This ground raises an argument as to whether intentional infliction of harm is to be inferred in the manner considered by Judge Driver in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64. However as Judge Driver and the Full Court of the Federal Court on appeal in SZTAL v Minister for Immigration and Border Protection & Anor [2016] FCAFC 69) indicated, intentional infliction, on its natural and ordinary meaning, involves an actual subjective intention by the actor to bring about the victim’s pain and suffering by the actor’s conduct. The Applicant’s grounds in this respect do not establish jurisdictional error on the part of the Tribunal in the manner in which it considered intentional infliction of harm for the purposes of the complementary protection criteria.

(Uncorrected)

15    In light of the above, when one has regard to the amended notice of appeal and the manner in which the primary judge dealt with the issue of intentional infliction of harm, the only ground of appeal proposed by the appellant is incapable of establishing legal error on behalf of the primary judge in light of the decision in SZTAL (HCA). This alone is sufficient for me to dispose of the appeal as framed in the amended notice of appeal.

16    That being said, particularly as the appellant was no longer legally represented before me, I attempted to elicit any alternative basis upon which he was able to identify appellable error in the decision of the Federal Circuit Court. I considered this course appropriate as the original ground of appeal was more widely drawn. In response, in similar fashion to his submissions before the primary judge, the appellant made a number of submissions directed to the underlying merits of his application for a protection visa, including making reference to a recent event, namely the asserted homicide of his cousin in December 2017. Despite my invitations, the appellant was unable to identify any appellable error on the part of the primary judge.

17    I have referred above to the post-review material the appellant placed before the primary judge. In respect of that material, at [34], the primary judge noted that:

The Applicant also claimed that he had new evidence that had not been before the Tribunal, including documents he had attached to his affidavit of September 2016 which consisted of a copy of a complaint to the Human Rights Commission of Sri Lanka about events of 2016 and an acknowledgement of receipt of that complaint.  The Applicant conceded that as this material post-dated the Tribunal review it was not material that was or could have been before the Tribunal.  It is not indicative of jurisdictional error on the part of the Tribunal.  As I indicated to him, if his concern is that circumstances have changed in Sri Lanka that is a matter he may raise with the Minister for Immigration, but this is not in itself such as to establish a jurisdictional error on the part of the Tribunal.

(Uncorrected)

18    There is clearly no error in her Honour’s treatment of this material which post-dated the Tribunal’s decision; it is clear that consideration of the underlying merits of the appellant’s claims in his application for a protection visa is not the role of the Federal Circuit Court or this Court on appeal. Similarly, I indicated to the appellant that the matters he raised regarding the incident in December 2017 were not matters which were relevant to the determination of jurisdictional error on the part of the Tribunal nor appellable error on the part of the primary judge. I also indicated that this was material which the appellant may choose to raise with the Minister.

d    conclusion and orders

19    There having been no identification of appellable error, in all the circumstances, the appeal is devoid of merit and must be dismissed with costs.

Associate:

Dated:    12 March 2018