Consideration
29 By the first ground of appeal the appellant contends that the primary judge fell into error in his consideration of the meaning of "significant harm". The particulars which elucidate the ground allege that the primary judge fell into error first, in considering whether spending up to a fortnight in jail was correctly addressed by the Tribunal and whether the time in jail was legitimate; and secondly, in failing to address whether the imposition of fines for contraventions of the Immigrants and Emigrants Act is appropriate and adapted to achieving a legitimate government objective.
30 The Minister submitted that this ground relates to the first ground of review in the appellant's amended application filed in the Federal Circuit Court which was not pressed. In that application the ground was stated as follows:
1. The Tribunal misconstrued or misapplied s 91R(1) of the Act.
Particulars
a. The Tribunal accepted that the applicant was a member of the social group of "those that have departed Sri Lanka illegally": [63], [125].
b. The Tribunal found that, because the applicant had departed Sri Lanka illegally, he would be charged with an offence under the Sri Lankan Immigrants and Emigrants Act: [124].
c. The Tribunal found that the applicant "may be held for several days, possibly as much as a fortnight in jail on remand before being given bail": [124].
d. The Tribunal found that a penalty of a fine "ranging from between 5,000 - 100,000 rupees" would be imposed on the applicant under the Immigrants and Emigrants Act: [124].
e. In finding that "the essential and significant reason for penalties under the Immigrants and Emigrants Act is to prevent unregulated departures" (at [125]), the Tribunal asked itself the wrong question.
f. The Tribunal should have asked itself whether the Immigrants and Emigrants Act was discriminatory against members of the social group of those that have departed Sri Lanka Illegally: cf Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 (SZNWC).
g. The Tribunal erred in its approach to considering whether the Immigrants and Emigrants Act was fines imposed upon persons returning to Sri Lanka who had departed Sri Lanka illegally were appropriate and adapted to a legitimate end object of Sri Lanka:
i. the Tribunal failed to ask itself whether the applicant's spending up to a fortnight in jail on remand was appropriate and adapted towards a legitimate end, either at all or in accordance with the approach outlined in SZNWC;
ii. the Tribunal accepted that it may be true that "a potential fine of 50,000 rupees presents a figure that is many times over the official poverty line in Sri Lanka": at [127];
iii. the Tribunal failed to ask itself whether the fines that were likely to be imposed under the Immigrants and Emigrants Act were was appropriate and adapted towards a legitimate end in accordance with the approach outlined in Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23: [127].
(underlining and strike out in original)
31 In my opinion this ground seeks to agitate the ground which was abandoned before the primary judge. The Minister submitted that the appellant ought not be permitted to raise a ground which was expressly abandoned in the court below, particularly in circumstances where the appellant was legally represented before the primary judge.
32 The question of whether leave should be granted to raise this ground on appeal, essentially a fresh ground on appeal, is governed by the principles enunciated in NAJT v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] where Madgwick J (with whom Conti J agreed) said that the questions relevant to the exercise of the Court's discretion to allow fresh grounds of appeal include:
1) Do the new legal arguments have a reasonable prospect of success?
2) Is there an acceptable explanation of why they were not raised below?
3) How much dislocation to the Court and efficient use of judicial sitting time is really involved?
4) What is at stake in the case for the appellant?
5) Will the resolution of the issues raised have any importance beyond the case at hand?
6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?
7) If so, can it be justly and practicably cured?
8) If not, where in all the circumstances, do the interests of justice lie?
33 No explanation has been proffered by the appellant as to why the ground was abandoned below and is now raised on appeal. Indeed the appellant was legally represented before the primary judge and, I would infer, abandoned the ground on advice from those representing him. That is a powerful reason why in this case leave would not be granted. On the other hand, it cannot be said that to allow the ground would create much, if any, dislocation to the Court nor inefficient use of its sitting time and it was not suggested that there would be any prejudice to the Minister in allowing the ground. Of course, at stake for the appellant is his status as an applicant for a protection visa.
34 Ultimately the question of whether the appellant should be permitted to raise this ground turns on whether it has reasonable prospects of success. In my opinion it does not.
35 An inquiry into whether a law or policy is "appropriate" to a legitimate object of the country concerned is necessary only once it is concluded that the law or policy results in discriminatory treatment for a reason specified by the Refugees Convention: see Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at [77]. Here the Tribunal did not accept that one or more of the five Convention reasons would be the essential or significant reason for the appellant spending up to a fortnight in jail on remand and fined if he returns to Sri Lanka. It found that the essential and significant reason for imposing penalties under the Immigrants and Emigrants Act was to prevent unregulated departures from Sri Lanka. The Tribunal was also not satisfied that the enforcement of the law in Sri Lanka was undertaken with any discriminatory motive or that there was any selective targeting of those against whom the law was to be enforced: Tribunal decision record at [125]-[126]. That being so, it was not necessary for the Tribunal to consider whether the relevant law, the Immigrants and Emigrants Act, was appropriate and adapted to achieve a legitimate objective as alleged by the appellant.
36 Accordingly, I do not grant leave to the appellant to raise the first ground on appeal.
37 By the second ground the appellant contends that the primary judge erred in the findings he made concerning the Tribunal's approach to Direction 56.
38 As is evident from the Tribunal's decision record at [9], the Tribunal was aware of Direction 56 and its requirements. In that paragraph the Tribunal stated:
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
39 In SZTMD Perram J considered the obligation imposed on the Tribunal to comply with any Ministerial directions issued under the Act and, in particular, Direction 56. In that case, the Tribunal mentioned the relevant guidelines in a paragraph not dissimilar to that set out at [39] above. Beyond this, it was otherwise silent and did not explain whether it dealt with the guidelines referred to in Direction 56 and country information; nor did it explain whether it regarded the guidelines and country information to be irrelevant to its task: at [11]-[12]. At [14]-[16] his Honour said:
14 The first step, in his submission, was to attend to the nature of the Tribunal's reasons. The Tribunal was bound by s 430(1) to provide a written statement of those reasons. …
15 It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal's reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (M10 of 2000) (2001) 206 CLR 323 at 346 [69] … ('Yusuf'). Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.
16 If that inference were to be drawn it would defeat the applicant's argument at the threshold. This is because the silence of the Tribunal on these matters would then signify not that it had not considered the guidelines and country information but that it did not consider them material to the task it had to perform. This is significant because cll 2 and 3 of Direction No 56, in terms, contemplate that the Tribunal is only obliged to consider the guidelines or country information to the extent that they are relevant.
40 At [20] of SZTMD Perram J noted that it was for the Tribunal to form an opinion as to what was relevant under cl 2 and cl 3 of Direction 56 and that it was the Tribunal's views on relevance, not those of the Court, which matter. Similarly, in the present case it was a matter for the Tribunal to determine what was relevant having regard to Direction 56. The primary judge rejected the contention that the Tribunal failed to comply with Direction 56. He was correct to do so.
41 As to the issue of the inferring of intention to inflict harm, the primary judge set out the relevant part of the Complementary Protection Guidelines referred to in Direction 56 noting that they state that "[i]n certain circumstances it may be appropriate to infer an intention to inflict extreme humiliation where it is evident that humiliation was or may be knowingly inflicted". In agreeing with the Minister's submissions, the primary judge identified that the Complementary Protection Guidelines give no guidance about the circumstances in which it may be appropriate to draw a requisite intention and noted that those guidelines contain nothing more than a suggestion that it may be appropriate, in particular circumstances, to draw certain inferences: ADS15 at [20]-[21]. There was no error in his Honour's approach. As the primary judge identified, the Complementary Protection Guidelines are not prescriptive.
42 The primary judge also found, in my opinion correctly, that the appellant's challenge failed at a factual level because the Tribunal did not accept that the Sri Lankan authorities knowingly inflicted humiliation or pain or suffering but rather that the prison conditions were the result of a number of things, including indifference to those conditions. His Honour found that even if the Tribunal implicitly found that the authorities were aware of the conditions it did not follow that they were aware of the pain and suffering that might be caused by those conditions and, even if they were, there is a difference between that awareness and knowingly inflicting harm as opposed to exposing a detainee to a risk of such harm: ADS15 at [22].
43 There was no error in the primary judge's approach to considering whether Direction 56 was correctly applied by the Tribunal. The second ground of the appeal is not made out.
44 For completeness I note that there was no challenge to the primary judge's findings about the second ground raised before him. That is not surprising. His Honour's finding at [11] of his reasons concerning the Tribunal's approach to the question of whether there had been the requisite intent in relation to the relevant types of significant harm was consistent with that of the plurality in SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34 at [15] and [27].