ADZ15 v Minister for Immigration and Border Protection

Federal Court of Australia|2016-05-27|Before: Barker J

The application be dismissed.
The applicant pay the costs of the first respondent, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 The applicant, a male citizen of Sri Lanka of Tamil ethnicity, applies for an extension of time to file a notice of appeal from a decision of the Federal Circuit Court of Australia dismissing his application for judicial review of the decision of the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) refusing to grant a protection (class XA) visa under the Migration Act 1958 (Cth). For the reasons which follow, the application should be dismissed. 2 The applicant arrived in Australia by boat in August 2012 without a visa. He then applied for a protection visa on 3 May 2013, claiming to fear persecution on the basis of his Tamil ethnicity and imputed political opinion. Specifically, the applicant claimed to have suffered discrimination as a result of his ethnicity on the basis that "people look at him different because he is a Tamil"; that, as a result of being suspected of helping the Liberation Tigers of Tamil Eelam (LTTE), his father was killed by the Sri Lankan army; that the applicant had been forced to undergo physical fitness training by the LTTE in 2005/2006; that the LTTE looked for him at his home in 2007; and that he and his family were taken to Kalimottai camp in Mannar from 2008 to October 2009, where he was questioned and beaten. The applicant further claimed that he was questioned by Sri Lanka's Criminal Investigation Department (CID) upon release from the camp, and the CID had been to his house looking for him since his departure for Australia. 3 His application was refused by a delegate of the Minister for Immigration and Border Protection on 17 February 2014. The delegate accepted that the applicant was a Sri Lankan citizen; had been forced to undergo training by the LTTE; and had been held in the Kalimottai camp. Ultimately, however, the delegate did not accept that the applicant suffered discrimination as a Tamil on the basis of concerns about the immediacy, gravity and credibility of his claims. 4 On 6 February 2015, the Tribunal affirmed the delegate's decision to refuse the applicant's application for a protection visa. 5 The applicant then applied to the Federal Circuit Court for judicial review of the Tribunal's decision, however, on 2 November 2015, the Court held the Tribunal's decision was not affected by jurisdictional error. See ADZ15 v Minister for Immigration & Anor [2015] FCCA 3449. 6 The applicant now applies for an extension of time to appeal from the Federal Circuit Court's decision. The circumstances in which he failed to appeal within the required 21 days of the Court's decision are discussed below, as are the apparent grounds of appeal.

TRIBUNAL'S DECISION 7 The Tribunal accepted that, on the evidence before it, the applicant had experienced discrimination on account of his Tamil ethnicity in the form of people looking at him differently. It further accepted that he underwent forced physical fitness training by the LTTE in 2005/2006, and that, in 2007, the LTTE came to his home and may have wanted to recruit him. While the Tribunal also accepted that the applicant's father died by gunshot, it was not satisfied that he was shot by the Sri Lankan army due to being a suspected LTTE supporter. 8 With regard to the applicant's claims to have been detained and physically mistreated by the authorities in Kalimottai camp in Mannar in 2008, the Tribunal accepted that the applicant and his family left their homes in the Mullaitivu district, being an area controlled by the LTTE, to avoid being recruited by the group. It further accepted that he was caught, blindfolded and interrogated by the Sri Lankan army when travelling by boat to Mannar, and was subsequently taken to Kalimottai camp where he and his family resided from June 2008 to October 2009. However, the Tribunal found it was not credible that the applicant was accused of being LTTE merely because he underwent fitness training. It also did not accept that he was physically mistreated by the authorities due to contradictions in the applicant's evidence, country information indicating the camp was a welfare camp where the United Nations' High Commissioner for Refugees (UNHCR) was present, and the fact that the applicant was assisted in his repatriation as an internally displaced person. 9 The Tribunal accepted that, after being released from the camp, the applicant was questioned by the authorities while living in Mathakal but had no problems with the authorities during that time. While it also accepted that the applicant may have been questioned by the authorities upon moving to the Mullaitivu district in November 2011, the Tribunal did not accept that he was visited for questioning on a second occasion, during which the applicant alleged he was detained for a day and a half, beaten and had a gun held to his head. 10 In light of these factual findings, the Tribunal then considered whether the applicant had a well-founded fear of persecution for a reason under the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (Convention reason). In doing so it noted that, in accordance with Ministerial Direction No. 56, it had taken into account relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). 11 The Tribunal considered that, on the basis of the evidence before it, namely the applicant being unemployed between 2008 and 2012, the applicant's economic circumstances were a motivating factor in his decision to leave Sri Lanka. 12 As the applicant did not claim to fear harm if returned to Sri Lanka due to being a Roman Catholic, the Tribunal found there was not a real chance that he would be persecuted on this basis. 13 The Tribunal found that, having regard to country information, Tamils did not a face a real chance of suffering serious harm solely on account of their ethnicity, or that associated factors such as being a young male or having geographical origins in the north or east of Sri Lanka, put them at greater risk of harm. While it accepted that Tamils in Sri Lanka continued to face a degree of harassment and discrimination on account of their ethnicity, such as difficulties accessing employment and disproportionate monitoring by security forces, it did not accept that this amounted to denial of their capacity to subsist, serious physical harassment or any other form of serious harm. 14 By reference to various sources of country information, which were raised with the applicant, the Tribunal noted there was a particular risk for people with actual or imputed links to the LTTE. In the circumstances, it was not satisfied that the death of the applicant's father was at the hands of the Sri Lankan army because they suspected he was an LTTE member, or that the applicant's fitness training by the LTTE gave him the requisite profile of a person of interest to the Sri Lankan authorities. The Tribunal raised with the applicant its view that the fact he remained in Kalimottai camp and was ultimately repatriated with UNHCR assistance, indicated that he was not identified by the authorities as a person of interest to them, nor was he perceived by them to be an LTTE supporter. It considered the latter conclusion was further supported by the applicant being able to renew his passport in 2009. 15 Consequently, the Tribunal did not accept there was a real chance that the applicant would be mistreated because of any perceived association with the LTTE if returned to Sri Lanka in the reasonably foreseeable future. 16 Although it was not directly raised by the applicant, the Tribunal considered, at [42], it arose on the facts whether, as a failed asylum seeker, he would be at risk of "significant harm" for the purposes of s 36(2A) of the Act if returned to Sri Lanka having left the country illegally. The Tribunal raised with the applicant that DFAT reports did not suggest that returnees generally were targeted for serious harm or significant harm, to which the applicant responded that no-one outside Sri Lanka knows what happens to returnees and asked for proof that nothing would happen to him. On the basis of the DFAT reports referred to, the Tribunal did not find there was a real chance that the applicant would be persecuted by reason of his membership of the suggested particular social group of "failed Tamil asylum seekers" or any political opinion imputed to him because he would be returning to Sri Lanka as a Tamil who left Sri Lanka illegally and who had applied for asylum in Australia. 17 The Tribunal found that individuals who were returned to Sri Lanka from Australia or were identified as having departed Sri Lanka in breach of Sri Lankan departure laws were being charged with breaches of those laws under Sri Lanka's Immigrants and Emigrants Act and held in prison on remand; a situation that the Tribunal accepted was likely to apply to the applicant. The Tribunal raised with the applicant country information indicating that alleged mistreatment of returnees had not been substantiated, and that the Sri Lankan departure laws were generally applied regardless of ethnicity and were not enforced in a discriminatory or selective manner. In light of this information, it considered that any brief period in prison on remand would be the result of the non-discriminatory enforcement of a law of general application and was therefore not for a Convention reason. Whilst it accepted that prison conditions in Sri Lanka were poor, the Tribunal did not accept that the applicant faced a real chance of persecution for any reason during this period of imprisonment. 18 In the result, the Tribunal did not accept that there was a real chance that the applicant would be persecuted by reason of his Tamil ethnicity, his membership of the particular social group "failed Tamil asylum seekers", or his actual or imputed political opinion in support of the LTTE or against the Sri Lankan government. 19 For the same reasons, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm as defined in s 36(2A) of the Act. 20 Ultimately, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Convention or s 36(2)(aa). The applicant therefore did not satisfy the criteria for a protection visa under s 36(2)(a) or s 36(2)(aa), and the Tribunal affirmed the delegate's decision. 21 The applicant then sought judicial review of the Tribunal's decision in the Federal Circuit Court of Australia.

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT 22 In his application for judicial review of the Tribunal's decision, the applicant raised the grounds of: jurisdictional error; bias; and denial of natural justice. These were reduced to two principal arguments in a written document handed up by him in Court on 2 November 2015. The first ground related to the Tribunal's alleged failure to properly assess the significance of two documents showing that the applicant's father was shot by the Sri Lankan army. The second ground alleged the Tribunal was biased in assessing the true situation of Tamils in Sri Lanka, as it acted in accordance with Ministerial Direction No. 56 and only took into account reports of DFAT, and consequently ignored reports by other organisations. 23 The primary judge considered that the first argument was affected by two difficulties. First, his Honour noted that the documents relied on by the applicant merely corroborated the claim that his father was killed by gunshot in 1988 and contained no reference to the gunshot being that of the Sri Lankan army or because of its suspicion of his father's involvement in the LTTE. Secondly, the Tribunal's reason for not accepting the applicant's claim was his own evidence at the Tribunal hearing that he was young at the time of his father's death and did not know whether the authorities had shown any adverse interest in his father prior to his father being fatally shot. Given the Tribunal had a specific basis for its conclusion, and the nature of the documents relied on by the applicant, the primary judge held the Tribunal was under no obligation under s 430 of the Act to do any more in respect of those documents. Consequently, his Honour rejected this ground. 24 The primary judge then considered the second argument on the basis that it was an allegation of prejudgement by the Tribunal. His Honour noted that, pursuant to s 499 of the Act, the Tribunal must comply with a written direction made by the Minister under that section, such as Ministerial Direction No. 56, which required the Tribunal to take into account any country information prepared by DFAT expressly for protection status determination purposes. In circumstances where the Tribunal was therefore required by the Act to have regard to DFAT reports, his Honour considered it could not be the fact that the Tribunal complying with the direction by having regard to DFAT reports, had any bearing on whether it had prejudged the matter. Having noted that the applicant's further claim that the Tribunal only had regard to reports by DFAT was factually incorrect, the primary judge rejected this second line of argument. 25 As a result, the primary judge concluded that none of the broader grounds raised by the applicant identified jurisdictional error. 26 Finally, the primary judge noted that at [53] of the Tribunal's decision, the Tribunal found that any harm flowing from prison conditions in Sri Lanka, which might follow any detention on his return to Sri Lanka, did not demonstrate "deliberate mistreatment". This finding was made for the purpose of considering whether any harm would constitute "significant harm" for the purposes of s 36(2A)(c) and (d), which, pursuant to s 5, must be "intentionally inflicted". His Honour considered that there must be an actual subjective intention to cause harm in order for it to constitute "significant harm" under s 5. His Honour cited Driver J in SZTAL v Minister for Immigration & Anor [2015] FCCA 64 in this regard, noting that judgment on the appeal from that decision to the Full Court of this Court had not yet been delivered. On that basis, the primary judge held there was no error in [53] of the Tribunal's decision and the finding it made that he would not be likely to suffer significant harm upon return to Sri Lanka if he were to be imprisoned as a failed asylum seeker. 27 The applicant failed to file an appeal from the primary judge's decision within the prescribed period of 21 days, but now applies for an extension of time to do so.

APPLICATION IN THIS COURT 28 The applicant filed his application for an extension of time on 5 January 2016, 43 days after the expiry of the 21 day period for filing an appeal. The affidavit filed in support of the application appears to provide the following explanation for the delay: I submitted a Notice of Appeal from the Federal Circuit Court of Australia as the Appellant, ADZ and sought to appeal against the orders made by the Federal Circuit Court on 2-11-2015. I reviewed the Judgment setting out the reasons for the decision of 2-11-2015 on 23/12/2015. Therefore, I was in a position to file the Notice of Appeal within the stipulated time. 29 No other explanation for failing to appeal in time is provided. What appears to have happened though is that the primary judge handed down his decision and gave reasons orally and then published written reasons later. 30 The application itself fails to specify the grounds of the application, and is not accompanied by a draft notice of appeal as required by R 36.05(3)(d) of the Federal Court Rules 2011 (Cth). 31 The applicant did not file any written submissions prior to the hearing but appeared, as a self-represented party, at the hearing (with the assistance of an interpreter), when he handed up the following written submissions: 1. The Sri Lanka of Prevention of Terrorism Act no 48 of 1979 (which has now become a permanent law of that country) is a law aimed against Sri Lankan Tamils and their aspirations to seek self-determination consequent to human rights abuses caused by the government and the majority ethnic community in Sri Lanka against the ethnic community that I belong to, the Sri Lankan Tamils. 2. This Act allows any officer of the armed forces to arrest without any warrant any person, enter and search any premises and seize any document or thing. 3. Interrogation, place of detention, rules of evidence, bail and immunity for armed forces who act under this law is provided under this Act. A large number of human rights abuses were committed by the armed forces under the provisions of this act. 4. The Second Respondent and the Primary Judge only examined in detail the provisions of the Immigration and Emigration Act, in relation to my appeal for a Protection Visa, and thereby I was denied a fair procedure, and the wrong questions were raised as issues in regard to my fear to return to Sri Lanka. 5. The fact that my father was shot and killed by the Sri Lankan army, my having being captured and questioned by the Sri Lankan navy, were not given adequate weight in assessing evidence as to whether I have a well-founded fear to return to Sri Lanka as a failed asylum seeker. 6. The persecution of Sri Lankan Tamils after 2009 has been severe, and the UNHCR had appointed a team of experts to examine this issue. This was the situation at the time the Second Respondent held an inquiry into my claims. 7. On the 10th of May 2016 two United Nations experts urged the government of Sri Lanka to replace the legal framework that allowed human right violations to occur and to establish institutions in line with international human rights standards. 8. I submit herewith a photocopy of a letter signed a Catholic priest Rev. Fr. E. Sebamalai given in the District of Mannar that points to my fear of returning to Sri Lanka. I, accordingly, appeal that Your Honour: a. Sets aside the judgement by the Primary Court Judge. b. Orders that a fresh examination be undertaken as regards my application for a Protection Visa in terms of the Refugee Convention and the Migration Act of 1958. 32 The following four documents were annexed to the applicant's written submissions: a letter dated 26 March 2016 from Reverend Father Sebamalai; extracts from Sri Lanka's Prevention of Terrorism Act (PTA); and two media articles dated 7 May 2016 and 10 May 2016 respectively. 33 The Minister made submissions both in writing and orally at the hearing. The Minister's written submissions comprised those filed prior to the hearing and supplementary submissions filed after the hearing, with the Court's leave, partly by way of response to the applicant's written submissions, as explained below. 34 At the hearing on 20 May 2016, counsel for the Minister advised the Court that judgment on the appeal from Driver J's decision in SZTAL, was listed for delivery at 2.15pm (AEST) that afternoon. The Court consequently invited the Minister to file supplementary written submissions responding to the applicant's recent written submissions and in relation to the relevant implications of the Full Court's decision by 4pm on Tuesday, 24 May 2016. The applicant was invited to file written submissions concerning the Full Court's decision by 4pm on Thursday, 26 May 2016. The Court adjourned the matter for judgment on Friday 27 May 2016. 35 By his written submissions filed prior to the hearing, the Minister opposes the application on the basis that no proposed grounds of appeal have been identified; any appeal has no reasonable prospects of success; and the applicant has not provided a sufficient explanation for the delay in instituting these proceedings. 36 The Minister properly notes the factors to be taken into account when considering whether to grant an extension of time are well-established: namely, the extent of the delay, the explanation for the delay, any prejudice a respondent may suffer because of the delay, and the merits of the proposed appeal. See Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; [1984] FCA 186, and Quan v Minister for Immigration and Border Protection [2013] FCA 1239 at [22]. 37 The Minister submits the delay of 43 days is not insignificant and weighs against the grant of an extension of time, and that the applicant has not provided a reasonable explanation for the delay. He observes that the applicant's affidavit apparently says that the reason for the delay was the fact that the primary judge failed to provide written reasons within the 21 day time period for filing an appeal. In this regard, the Minister says there is no requirement that an applicant possess a primary judge's written reasons for judgment in order to be able to prepare an appeal from that judgment, or that prior to the giving or in the absence of written reasons, that the time limits for appeals do not run. See SZQKX v Minister for Immigration and Citizenship [2012] FCA 421. The Minister further notes the applicant was present in the Federal Circuit Court when the primary judge gave his decision and reasons for judgment, and was assisted by an interpreter at the hearing. 38 Although the Minister does not contend that he would be prejudiced by reason of the delay, he says the mere absence of prejudice to a respondent can never of itself justify the exercise of the discretion to extend time. See Cohen at 349. 39 To the extent the applicant seeks to re-agitate the arguments advanced before the primary judge, the Minister says the applicant has not identified any error in the primary judge's "clear findings on the evidence" and that, as held by the primary judge, no jurisdictional error is disclosed in the Tribunal's assessment of the material before it. 40 With regard to the applicant's claim in his written submissions of 20 May 2016, that the Tribunal and primary judge only examined the provisions of Sri Lanka's Immigrants and Emigrants Act and did not consider the PTA, the Minister notes the applicant advanced no claim to fear harm under the PTA. The Minister says that, pursuant to this Court's decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]; [2004] FCAFC 263, the Tribunal was not required to consider a claim not made nor one which did not squarely arise on the material before it. The Minister says that, in the absence of any claim made, the Tribunal found that the applicant was of no interest to the authorities. 41 As to the applicant's submission that his claims that he was detained by the Sri Lankan navy and that his father was killed by the Sri Lankan army were not given adequate weight, the Minister submits, by reference to the High Court's decision in Minister for Immigration and Citizenship v SZJSS and Others (2010) 243 CLR 164 at [33]; [2010] HCA 48, that it is well-established that matters of weight are matters within the exclusive province of the Tribunal. The Minister says that a plain reading of the Tribunal's reasons reveal that these claims were considered: at [13] of its reasons, the Tribunal accepted that the applicant's father had been shot, but not by the Sri Lankan army on suspicion of being a supporter of the LTTE; and, despite accepting that the applicant was detained at [16] of its reasons, the Tribunal did not accept that the applicant was physically mistreated given the inconsistencies in his own account and in the country information. 42 The Minister contends that, as the documents annexed to the applicant's submissions were not before the Tribunal or the primary judge, they cannot establish jurisdictional error in the Tribunal's decision or appealable error in the primary judge's reasons. 43 With regard to the appeal from Driver J's judgment in SZTAL, the Minister notes the Full Court has now dismissed the appeals before it on the basis that the Court was not persuaded that the Tribunal or primary judge in that case erred in construing the expressions "intentionally inflicted" or "intended to cause" to require actual subjective intention. See SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 (SZTAL FC). To the extent the Tribunal imposed an actual subjective intention for the purpose of meeting the definition of "significant harm" in s 5 of the Act by using the word "deliberate", the Minister submits that that approach was correct and discloses no error. 44 For all these reasons, the Minister says the application for an extension of time to file a notice of appeal should be refused, and the applicant should pay the Minister's costs of the application. 45 The applicant, by supplementary written submissions filed 26 May 2016, does not address the Full Court's decision in SZTAL FC, but instead reiterates in substance the arguments raised before the primary judge and in his written submissions of 20 May 2016: I am the Applicant in this case, and which to make the following submissions on the Respondent's supplementary submissions of 24th May 2016: 1. I firmly state that the Tribunal and the Primary Judge were aware of the Prevention of Terrorism Act but played it down as this would have strengthened my case. The whole basis of my complaint and fleeing from Sri Lanka was because I was harassed by the armed forces acting under this Act. 2. The fact that my father was killed by the Sri Lankan army was because it was perceived by them that he had connections with the LTTE. The army has been let loose on the Sri Lankan Tamils to suppress their aspirations and in this process they killed a number of Tamils under the cover of the PTA. For the Tribunal to submit that this was a killing for other reasons is far from fair and points to a bias in examining my claims for a protection visa. 3. In Sri Lanka if a person is detained by the armed forces he is invariably harassed and persecuted. This has been well documented by international human right organisations and by the UNHCR. I too was harassed when detained. 4. The documents I submitted related to the period that the Tribunal held the inquiry into my claims for a Protection Visa. If the tribunal examined my case in a fair and just manner, in accordance with the laws of natural justice, the country situation in the context of my situation would have been different. I am certain that if this was done I would not have been denied a Protection Visa under the Refugee Convention and the Migration Act no 58 of Australia. Therefore, my appeal is that the documents must b accepted on the basis of relevance.

CONSIDERATION 46 As noted above, this is a case in which it appears the primary judge delivered his judgment and reasons for dismissing the application for judicial review orally, and provided the written reasons later. 47 In such circumstances, while it is strictly correct to say, as the Minister does, that there is no impediment to an aggrieved party lodging an appeal within the 21 day period provided by the Rules following the oral delivery of judgment and reasons, it is nonetheless understandable why a self-represented party whose first language is not English, and who was assisted by an interpreter at the hearing, such as the applicant, might have taken time, following receipt of the written reasons for judgment, to obtain advice about those reasons and to have been late in filing his appeal papers. 48 I am satisfied that the simple fact of delay in lodging an appeal should not count against the applicant in this case. The question of substance is whether there are any proposed grounds of appeal that have any prospects of success. 49 Taken collectively, the two sets of written submissions filed by the applicant appear to raise the same issues that were before the primary judge. 50 In my view, having carefully considered the decision of the Tribunal, and the reasons of the primary judge in dealing with the two substantive arguments agitated in the Court above, there is no reason to doubt the careful analysis made by the primary judge in respect of the two primary strands of argument made to him. 51 First, there is no basis to support a conclusion that the Tribunal failed properly to assess the significance of two documents showing that the applicant's father was shot by the Sri Lankan army, for the reasons given by the primary judge. 52 Further, there is no basis to an allegation of prejudgement, as the primary judge called it, or bias, in that the Tribunal was bound to have regard to Ministerial Direction No. 56. The Tribunal considered relevant country information before it. The primary judge correctly held this to be so. 53 The submission at [5] of the applicant's written submissions filed 20 May 2016, as elaborated in [1]-[4], is also not made out. The PTA, as the Minister submits, was not raised before the Tribunal and did not require consideration by the Tribunal. It was not obviously an issue that was raised squarely by the materials before the Tribunal. No jurisdictional error in not dealing with it is indicated. 54 As to the submission at [6], the weighing of various pieces of evidence is a matter for the Tribunal. See Minister for Immigration and Citizenship v SZJSS and Others (2010) 243 CLR 164 at [33]; [2010] HCA 48. The claims and relevant pieces of evidence were clearly considered by the Tribunal at [13] and [15]-[20] of its reasons respectively. No jurisdictional error is established in this regard. 55 The submissions at [7]-[9] join issue with the Tribunal's findings of fact regarding the situation of Tamils in Sri Lanka, but do not indicate the Tribunal made any jurisdictional error. The primary judge correctly found to this effect. The additional documents that the applicant refers to in his written submissions were not before the Tribunal and cannot be relied on now to suggest jurisdictional error by the Tribunal, or error by the Court below. 56 With regard to the submission at [1] of the applicant's supplementary written submissions filed 26 May 2016, as just stated above, there are no materials presently before the Court that suggest that the Tribunal and primary judge were aware of the application of the PTA in this case. That line of contention was not squarely raised by the material before the Tribunal. It cannot be raised now. On its face, even if the applicant's claim was subjectively motivated by fear of harassment under the PTA, it does not appear that such a claim was raised before the Tribunal or in the Court below. As a result, neither the Tribunal nor the primary judge can be criticised for not considering the PTA, and no error is indicated. 57 The submission at [2] of the supplementary written submissions, which substantially overlaps with [6] of the written submissions filed 20 May 2016 to the extent that it relates to the applicant's claim that his father was shot and killed by the Sri Lankan army, is also not made out. The Tribunal's careful consideration of the claim at [13] of its reasons, as discussed above, cannot be said to disclose any bias on the part of the Tribunal. 58 The submission at [3] of the supplementary submissions appears to challenge the Tribunal's finding, at [17] of its reasons, that it did not accept that the applicant was physically mistreated when detained by the Sri Lankan army in Kalimottai camp. In circumstances where that finding was open on the evidence before the Tribunal, the primary judge's finding that there was no jurisdictional error was correct and does not involve error. 59 The submission at [4] of the supplementary submissions substantially repeats those at [8]-[9] of the written submissions filed 20 May 2016. As discussed above, the additional documents that the applicant refers to in his submissions of 20 May 2016 were not before the Tribunal. They cannot be relied on now to suggest the Tribunal failed to afford the applicant procedural fairness or that the primary judge made any relevant error. 60 As to the question of the use of the word "deliberate" in [53] of the Tribunal's decision, the recent decision in SZTAL FC, confirms the primary judge's conclusion that, in order for harm to constitute "significant harm" under s 5(1) of the Act, there must be an actual subjective intention by the actor to cause it. 61 In SZTAL FC, Kenny and Nicholson JJ considered the interpretation of the definition of "torture" in s 320A of the Criminal Code 1899 (Qld) by the Queensland Court of Appeal in R v Ping [2006] 2 Qd R 69; [2005] QCA 472, to be persuasive in this regard. Chesterman J, with whom Williams and Jerrard JJA agreed, held that the statutory definition of "torture" as the "intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion", required an "actual, subjective, intention on the part of the accused to bring about the suffering by his conduct". See Ping at [27] and [29]. 62 In adopting this interpretation, Kenny and Nicholson JJ noted that it concerned relevantly the same concept, "intentional infliction"; reflected the natural and ordinary meaning of those words; and had been subsequently followed in the Queensland Court of Appeal and was consistent with the High Court's recent decision in Zaburoni v The Queen (2016) 90 ALJR 492; [2016] HCA 12. Their Honours rejected the suggestion that the construction of the relevant definitions in s 5(1) was assisted by international jurisprudence on Art 7 of the International Covenant on Civil and Political Rights and Art 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, from which the contested phrases were derived, and that the construction should be harmonious with the offence of torture in s 274.2 of the Criminal Code Act 1995 (Cth). Their Honours further considered, at [68], that interpreting the relevant definitions in s 5(1) as requiring an actual subjective intention would not cause irrational outcomes of a kind not intended by Parliament. 63 The Tribunal's reference in this case to "deliberate" mistreatment in considering whether poor prison conditions constituted "significant harm" for the purposes of s 5(1) of the Act, and the primary judge's subsequent conclusions in this regard, are consistent with the interpretation of the relevant definitions in SZTAL FC and disclose no jurisdictional error. The word "deliberate", although not used in the relevant sections of the Act, connotes the same requirement that any pain and suffering is intentionally inflicted. The Tribunal did not erroneously limit itself in only considering whether there was evidence that torture or "other forms of deliberate mistreatment" would be suffered by the applicant should he be returned to Sri Lanka, for the purposes of s 36(2A) of the Act. 64 In these circumstances, the various bases upon which the applicant contends the decision in the Court below was made in error, have no reasonable prospects of success. 65 As a result, the application to extend the time to appeal should be dismissed.

ORDERS 66 The following orders are appropriate: (1) The application be dismissed. (2) The applicant pay the costs of the first respondent, to be taxed if not agreed. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Migration Act 1958(Cth)ss 5, 5(1), 36(2)(a), 36(2)(aa), 36(2A), 36(2A)(c), 36(2A)(d), 430, 499

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (13)