FEDERAL COURT OF AUSTRALIA

BZAFB v Minister for Immigration and Border Protection [2018] FCA 995

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding is a citizen of Sri Lanka. He departed Sri Lanka illegally by boat and arrived in Australia in May 2012.

2    He applied for a Protection (Class XA) visa in August 2012. A delegate of the Minister for Immigration and Citizenship refused that application in October 2012.

3    An unsuccessful application for review was then filed. The then Refugee Review Tribunal affirmed the delegate’s decision in June 2013. But that Tribunal decision was set aside by an order of the Federal Circuit Court in November 2014 and the matter was remitted back to the Tribunal for reconsideration in accordance with law: BZAFB v Minister for Immigration and Border Protection [2014] FCCA 2584.

4    In September 2015, the decision of the delegate was again affirmed by a decision of what was by then the Administrative Appeals Tribunal. Review was again sought by the Federal Circuit Court. In April 2017, the Federal Circuit Court dismissed the application for review: BZAFB v Minister for Immigration and Border Protection [2017] FCCA 833.

5    The Appellant now appeals to this Court.

6    The appeal first came before the Court on 22 February 2018.

7    The Appellant was then unrepresented but had the benefit of an interpreter; the Respondent Minister was represented by his solicitor. The solicitor quite properly informed the Court that the Minister’s Outline of Submissions had previously been sent to an address at which the Appellant no longer resided. The Appellant had failed to notify the Respondent Minister of his change of address. A copy of the Submissions was only provided to the Appellant on the morning of 22 February 2018. The solicitor for the Respondent Minister also quite properly consented to the hearing of the appeal being stood over to 13 March 2018.

8    On 13 March 2018, the Appellant again appeared unrepresented but with the assistance of an interpreter. On that occasion he sought an adjournment. The reasons proffered in support of that application centred upon a claim that lawyers who had been approached by the Appellant required further time in which to prepare the case for hearing. Those claims, it is respectfully considered, were far from consistent and reservation was then expressed as to the veracity of the reasons for seeking an adjournment. An adjournment was nevertheless granted and the matter stood over to 22 March 2018.

9    On 22 March 2018, the hearing of the appeal proceeded. The Appellant was again self-represented but indicated that he was content to have his appeal then resolved.

10    The appeal is to be dismissed with costs.

The Grounds of Appeal

11    The Notice of Appeal as filed relevantly provides as follows:

Grounds of appeal

1.    His Honour erred in not finding that the Tribunal failed to take into account an integer of his claim and thereby denied him procedural fairness

2.    His Honour erred in not finding that the Tribunal breached the Migration Act in failing to put new information about relocation to the applicant.

3.    His Honour erred in not finding that the poor prison conditions did not constitute serious harm

A failure to take into account an integer of the claim

12    The first Ground of Appeal contends that the Tribunal failed to consider an integer of the Appellant’s claim.

13    A failure to consider an integer of a claim may constitute jurisdictional error: cf. Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [27], (2010) 115 ALD 303 at 309 per North and Lander JJ.

14    But the argument in the present case confronts at least two difficulties.

15    First, the claim as initially advanced by the now-Appellant was set forth in a Declaration submitted to the Department with his visa application in August 2012. That was a claim to fear persecution founded upon (in summary form):

    harassment by the military which had been ongoing since 2004;

    a threat made in 2011 by the Criminal Investigation Division to kill him if they found evidence that he was “involved in other activities”;

    the kidnapping of his wife’s cousin in 2004 or 2005 and a fear that the same may happen to him; and

    a threat made in July 2012 by the Criminal Investigation Division that if he returned to Sri Lanka they would kidnap him and would “finish [him] off”.

The first difficulty is that the Appellant has failed to identify which “integer” of his claim was not considered by the Tribunal. Indeed, the Tribunal in its reasons for decision set forth the text of the August 2012 Declaration and then proceeded to address each of the claims made.

16    The second difficulty is that this was not an argument advanced before the Federal Circuit Court. Leave may be granted to raise a new argument before this Court on appeal in circumstances where it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] to [48], (2004) 238 FCR 588 at 598 to 599 per Kiefel, Weinberg and Stone JJ.

17    Given that the Appellant was unrepresented before the Federal Circuit Court, it may be that the discretion to grant leave may be more readily exercised than in those circumstances where a party has had the benefit of legal advice and has committed himself to an informed selection of arguments before the primary Judge.

18    But the discretion to permit the present argument to be raised for the first time on appeal before this Court is exercised adversely to the Appellant on the basis that it is an argument without real prospects of success.

19    The first Ground of Appeal is rejected.

20    Notwithstanding the manner in which the first Ground of Appeal is expressed, the Appellant during his oral submissions to this Court explained that he could not find “any error” in the Tribunal decision but rather was more concerned that the interpreter did not adequately interpret what he said. That argument is also without substance. That was the conclusion of the Federal Circuit Court Judge whose decision is now under appeal: [2017] FCCA 833 at [12], [16] and [17]. That Judge accepted that there had been “some confusion at the Tribunal hearing” but that any asserted interpretation problem had no “bearing on the Tribunal decision”. Assuming that the argument was sought to be raised on appeal, the conclusion of the primary Judge does not expose any error.

The failure to put new information about relocation to the Appellant

21    The second Ground of Appeal asserts error on the part of the primary Judge by reason of his failing to find that the Tribunal had itself failed “to put new information about relocation to the applicant”.

22    The difficulty for the Appellant is that the Tribunal did not resolve any issue as to relocation because the Tribunal had rejected the claims for protection advanced by the Appellant. No necessity thus arose for the Tribunal to put “new information about relocation” to the Appellant.

23    The second Ground of Appeal is rejected.

Poor prison conditions

24    The final Ground of Appeal was understood as an argument that if the Appellant were returned to Sri Lanka, the “poor prison conditions” could constitute “serious” or “significant” harm for the purposes of the Appellant’s claims for protection.

25    This Ground also confronts a number of difficulties.

26    First, the Appellant was given an opportunity to address the “poor prison conditions” during the course of the Tribunal hearing but declined to do so. There was thus the following exchange during the course of the hearing (without alteration):

Tribunal member:    okay so as I indicated the information just suggests when you arrive in the country if it is weekend or public holiday you may end up of being remanded in custody for short period of time and could may be less than a day or several days although sources indicates the prison condition in Srilanka are poor considering all the information before me it doesn’t indicate that there will be real risk someone with your profile will suffer significant harm in prison if they were held for short period of time and also suggest there is no necessary intention to inflict significant harm is there anything you would like to say

Appellant:    No

It is difficult to discern error in failing to make a finding in circumstances where a party was given the opportunity to adduce material in respect of the potential finding but declined to do so.

27    Second, the Tribunal made findings that the chance of the Appellant facing any term of imprisonment would be “remote”. Given that conclusion, the need to make more express findings as to “poor prison conditions” receded in relevance. The Tribunal thus concluded (in part) as follows:

64.    The Tribunal has had regard to the penalties which the applicant may face as a result of his contravention of the Immigrants and Emigrants Act. The Tribunal notes that DFAT reports that it has been informed by Sri Lanka’s Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally and that in most cases people have been bailed immediately, and later fined between 5000 and 50,000 rupees. The Tribunal does not accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.

65.    Taking into consideration the information discussed above, in addition to the applicant’s particular profile as someone who has no criminal record and neither he or his family members have ever been involved with the LTTE or assisted them in any way or been suspected of having any involvement with the LTTE, the Tribunal finds that the applicant may be held in remand for between a few hours and possibly a few days, depending on when he arrives in Sri Lanka. However, the Tribunal does not accept that any period the applicant is held in detention prior to being bailed constitutes persecution as it is the operation of a law of general application. The Tribunal also does not accept, given its findings regarding the applicant’s profile, that the applicant would face serious harm during any short period of detention prior to be [sic] being bailed. The Tribunal therefore does not accept that the treatment the applicant may face on his return to Sri Lanka as a result of his illegal departure from the country, either on arrival at the airport, whilst on remand awaiting a bail hearing or when he appears later before the courts, constitutes serious harm amounting to persecution.

28    The Tribunal returned to the issue of imprisonment as follows when addressing “[c]omplementary protection obligations”:

77.    The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained very briefly prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it and the Tribunal’s earlier reasoning referred to above, that he faces a real risk of being significantly harmed during this process or that there would be the necessary intention to inflict significant harm on the applicant during any short period of detention he may be subjected to.

29    No jurisdictional error is discernible in these findings made by the Tribunal. In particular, the finding made by the Tribunal that the Appellant would not “face serious harm during any short period of detention prior to … being bailed” was a finding of fact open to the Tribunal. The challenge to the Tribunal’s findings in Ground 3 of the Notice of Appeal impermissibly invites this Court to make a finding of fact contrary to the findings made by the Tribunal.

30    Nothing is here said about the correctness or otherwise of the findings of fact made by the Tribunal. However, even if those findings were not correct, there is no error of law (cf. Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J), let alone jurisdictional error (cf. Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28], (2010) 115 ALD 303 at 309 per North and Lander JJ), in simply making a wrong finding of fact. Similarly, “a failure to refer to, or adequately to consider, evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it may have led to an erroneous finding of fact”: Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 at [24], (2011) 119 ALD 534 at 540 per Kenny J.

31    A third difficulty confronting this final Ground of Appeal is that – in similar circumstances to those of the Appellant – the prospect of temporary detention in poor conditions of a person who has left his country of origin upon his return has been found not to fall within s 36(2)(aa) of the Migration Act 1958 (Cth): SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, (2017) 347 ALR 405. Section 36(2)(aa) provides that a criterion for the grant of a protection visa is that the Minister has substantial grounds for believing that “there is a real risk that the non-citizen will suffer significant harm”. Section 36(2A) provides that “significant harm” includes “cruel or inhuman treatment or punishment”. Section 5(1) of the Migration Act relevantly defines that latter expression as being “an act or omission by which … severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”. When considering these provisions in a factual context where the Tribunal had accepted that prison conditions were poor and may not meet international standards by reason of matters such as overcrowding, poor sanitary facilities and limited access to food, Kiefel CJ, Nettle and Gordon JJ summarised the argument there advanced as follows (at 409):

[10]    The appellants contend that the conditions of “intentional infliction of pain or suffering” or “intentionally causing extreme humiliation” are satisfied if a person does an act knowing that the act will, in the ordinary course of events, inflict pain or suffering, or cause extreme humiliation. On this argument, clearly enough, intention involves an assessment of the foresight of the consequences of an act.

Their Honours then reviewed the authorities and concluded (at 412 to 413):

[26]    The reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective, intent. As [Zaburoni v The Queen [2016] HCA 12, (2016) 256 CLR 482] confirms, a person intends a result when they have the result in question as their purpose.

[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 [[2016] HCA 12 at [14] to [15], (2016) 256 CLR 482 at 490 per Kiefel, Bell and Keane JJ], 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.

…

[29]    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.

(Footnotes omitted.)

32    Their Honours dismissed the appeals. Gageler J, however, dissented and would have allowed the appeals. His Honour concluded (at 420):

[58]    For the reasons given, I consider that the view of intention endorsed by the plurality in the Full Court and now endorsed by the majority in this Court is too narrow. On the construction of the definitions I think to be preferable, the requisite intention will exist in either of two scenarios: where the perpetrator means to engage in conduct meaning to bring about the result adverse to the victim; and where the perpetrator means to engage in conduct aware that the result adverse to the victim will occur in the ordinary course of events.

The final member of the Court, Edelman J, also dismissed the appeals. The Full Court of this Court, his Honour concluded, “was correct that the Tribunal was required only to consider intention as meaning an ‘actual, subjective, intention’” and that it was “not sufficient for that intention to be proved by oblique intention”: [2017] HCA 34 at [114], (2017) 347 ALR at 434. See also: SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69, (2016) 243 FCR 556; ANG15 v Minister for Immigration and Border Protection [2018] FCA 225 at [23] to [24] per Markovic J; BJG15 v Minister for Immigration and Border Protection [2018] FCA 251 at [29] per Thawley J.

33    Such poor prison conditions as the Appellant may experience on the “remote” chance that he is detained upon his arrival back in Sri Lanka, accordingly, are not such as to bring his claims within s 36(2)(aa) of the Migration Act. The decision of the High Court in SZTAL was not available as at the date of decision of the primary Judge. That Judge was nevertheless correct in following the decision of the Full Court in SZTAL: [2017] FCCA 833 at [19] to [21].

34    The final Ground of Appeal is thus also rejected.

CONCLUSIONS

35    None of the Grounds of Appeal as set forth in the Notice of Appeal have been made out. The variant upon those Grounds asserting inadequacy in the interpretation facilities available before the Tribunal has also been rejected.

36    The appeal is to be dismissed.

37    Costs should follow the event.

38    Some reservation was expressed as to whether the costs payable to the Respondent Minister should include the costs of the adjourned hearing on 22 February 2018. But that adjournment was caused by the failure on the part of the Appellant to notify the Respondent Minister of his change of address. Costs should, accordingly, include the costs of that adjourned hearing.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:

Dated:    3 July 2018