Appeal to this court
39 In his notice of appeal filed 14 June 2016, the appellant raises two grounds of appeal that largely replicate the grounds of review in the Federal Circuit Court:
The Federal Circuit Court Judge erred in the judgment as the Judge failed to find that the Tribunal erred in law when the Tribunal had reviewed my review application.
1. The Federal Circuit Court Judge failed to accept in the judgment on that he AAT declined its power under sections 424A and 425 to me when it reviewed my protection visa application. The AAT did not comply with the section 424AA and it has breached its statutory duty imposed by section 424A of the Act as well as the RRT has failed to put the concern and adverse information to me during the AAT hearing and in writing the concerns and adverse information which arose in my review (reasons for refusing my review) and it has failed to invite me for my comments, after the hearing, before it made its decision.
2. When the AAT deciding that cruel or inhumane treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the AAT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The AAT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.
40 The appellant did not file any written submissions prior to the hearing, but appeared, as a self-represented party, at the hearing and made oral submissions.
41 Counsel on behalf of the Minister made submissions both in writing and orally at the hearing.
42 Ground 1 raises the issue of the Tribunal's compliance with ss 424A, 424AA and 425.
43 In this regard, s 424A(1) provides as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
44 Section 424A(2A) and (3), to which subs (1) is subject, provide as follows:
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
45 Section 424AA separately provides:
424AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so - the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
46 Section 425, to which both s 424AA and this first ground of the appeal refer, provides as follows:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
47 As the primary judge found, there is no "information" that is readily discernible on the material before his Honour that separately enlivened the obligation to give clear particulars of that information to the appellant as a result of the hearing in the Tribunal.
48 All matters relevant to the hearing in the Tribunal were canvassed by the Tribunal member with the appellant at the Tribunal hearing.
49 Before that, a number of questions and concerns had become evident as a result of the decision of the delegate.
50 The Tribunal ultimately rejected the appellant's claims on the basis of comprehensive adverse credibility findings.
51 There was no separate obligation arising, in the circumstances, on the Tribunal, in effect, to provide the appellant with a further opportunity to answer the concerns that the Tribunal had obviously raised, in the course of the hearing, with the appellant. There is, for example, no obligation for the Tribunal to issue what would amount to a draft set of findings in order to provide an applicant for review with an additional opportunity to satisfy the Tribunal member that their account of events, which have plainly been put in contention, should be accepted by the Tribunal.
52 In all the circumstances, it is plain that the appellant was afforded a sufficient opportunity to give evidence and make submissions about all relevant matters in issue and no further obligation to provide any "information" was raised under s 424A, or that the Tribunal failed in meeting its obligations under s 424AA.
53 As has been pointed out in a number of decisions, the Tribunal, in circumstances such as these, does not labour under an obligation to invite submissions or comment on the "thought processes" of the Tribunal and "information" does not constitute thought processes, or information given by an applicant for the purposes of the review and information that does not specifically relate to an applicant. See SZUMS v Minister for Immigration and Border Protection [2016] FCA 542 at [20]-[24] and SZQDR v Minister for Immigration and Border Protection [2016] FCA 543 at [29]-]36].
54 The primary judge's rejection of this particular ground, to be found at [37]-[39] of his Honour's judgment, does not disclose any legal error.
55 Consequently, ground 1 of the appeal fails.
56 The second ground of the appeal more or less repeats the second ground of the judicial review application before the primary judge, which is set out as ground 2 at [29] above.
57 The question about the relevance of information before the Tribunal concerning the circumstances of the appellant, should he be returned to Sri Lanka, and placed in prison on remand, was dealt with in two ways by the Tribunal.
58 First, in considering whether the appellant was a person in respect of whom Australia has protection obligations under the Convention, for the purposes of s 36(2)(a) of the Act, the Tribunal considered whether the conditions and circumstances in which the appellant might be held in custody on return to Sri Lanka were relevant. Having regard to the evidence overall, including the information regarding the shortness of any remand or detention that the appellant might suffer, the Tribunal was not satisfied that the conditions would constitute "serious harm" within the nature of s 91R(2) of the Act.
59 At [35] of its reasons, the Tribunal expressly accepted information to the effect that the appellant would likely come to the attention of Sri Lankan authorities on return as a former illegal immigrant from Sri Lanka as soon as he reached the airport or would be questioned by police and possibly charged, and may be transported to the Magistrates Court in Negombo and remain in police custody at the airport for up to 24 hours, or for three or four days if there was an intervening weekend, and then bailed. The Tribunal also accepted that many, if not most, of the people with whom the appellant could be remanded may be Tamils. But also that he would be granted bail on his own recognisance, but would not be suspected of association with people smugglers or with the Liberation Tigers of Tamil Eelam.
60 The Tribunal then considered the appellant's complementary protection claims for the purposes of s 36(2)(aa) of the Act, and expressly found at [49] of its reasons, that on the evidence before the Tribunal, the process of investigating the appellant's illegal departure or other aspects of his background on his return to Sri Lanka, or the period he may face in custody for questioning on remand, or the fine he might have to pay for illegal departure, or any ensuing sanctions, would involve or amount to significant harm, as an act or omission, would not constitute torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, as they constituted "lawful sanctions" under Sri Lankan departure laws and were not inconsistent with the International Covenant on Civil and Political Rights. Opened for signature 19 December 1996. 999 UNTS 171. 6 ILM 386 (entered into force 23 March 1976) (ICCPR.
61 In essence, the Tribunal considered that the acts or omissions would arise from, inherent in or incidental, to lawful sanctions not inconsistent with the Covenant.
62 Further, at [50], the Tribunal found there would not be any real risk that the appellant would suffer significant harm as a result of the sanctions involved, including his possible detention, because they fell within the exceptions set out s 36(2B)(c) of the Act in that, as law to which everyone is subject, the risk was one faced by the population of a country generally and not by the appellant personally.
63 At [51], the Tribunal expressly found:
I find on the before me that [the appellant] will not be arbitrarily deprived of his life of subject to the death penalty being carried out. In light of my finding above on the conditions in which [the appellant] might find himself I remanded I find that those conditions do not constitute torture or cruel or inhuman treatment or punishment because the independent information before [me] does not indicate that it is severe physical or mental pain and suffering or pain and suffering cruel or degrading in nature. Nor is it degrading treatment or punishment as it does not involve extreme humiliation.
64 Of these findings, the primary judge noted, at [34] of his reasons for judgment, that the Tribunal was not concerned with whether or not this harm might be "intentionally inflicted", for the purposes of the definition of "cruel or inhuman treatment or punishment", being the expression used in the definition of "significant harm", for the purposes of s 36(2)(aa) (as set out in s 36(2A) of the Act) but rather found that the harm did not otherwise meet that level. In passing, the primary judge also noted that while the Tribunal at one point, at [51] of his reasons for judgment, referred to "cruel or degrading in nature" that was only a slip and was intended to state, as in the definition, "cruel or inhuman in nature". I consider the primary judge was correct in so observing.
65 The primary judge also concluded that, in any event, the decision of the Full Court of this Court in SZTAL meant that the appellant's arguments could not succeed.
66 In SZTAL, the joint judgment of Kenny and Nicholas JJ held that the relevant intention in respect of the harm complained of must be an actual subjective intention by the actor to bring about the victim's pain and suffering by the actor's conduct.
67 The Minister notes that the Full Court's decision in SZTAL is the subject of a special leave to appeal application to the High Court of Australia to be held in just over a week from now, on 16 November 2016.
68 In the circumstances of this case, having regard to the particular findings of the Tribunal concerning the nature of the custody, questioning, remand, fine and the like that might imposed on the appellant if he were to return to Sri Lanka, the question of intention (whether subjective or objective) does not arise and I agree with the primary judge's final conclusion, in that regard, at [36], that the point raised by the appellant does not arise on the Tribunal's findings and that ground must be rejected.
69 As a consequence, ground 2 of the appeal fails.
70 For these reasons, the appeal should be dismissed.