ARK15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant to pay the first respondent's costs of the appeal, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit Court dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming the decision of a delegate of the First Respondent ("the Minister") not to grant the appellant a Protection Class XA Visa. 2 The appellant is a citizen of Sri Lanka. In addition to his protection claims under the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) ("the Act") (which were not accepted by the Tribunal) the appellant claimed that Australia had protection obligations to him under the complementary protection criterion in s 36(2)(aa) of the Act for reasons that included his status as a returnee to Sri Lanka who departed illegally. The Tribunal accepted that, as a returnee to Sri Lanka who departed illegally, the appellant may face being questioned at the airport, being arrested on charges of leaving the country illegally, potentially being remanded for a relatively short period pending a bail hearing and be fined up to 50,000 rupees for his illegal departure. The Tribunal also accepted that the appellant may be remanded in conditions that are cramped, uncomfortable and unsanitary. However, the Tribunal held that the circumstances that the appellant may face on return to Sri Lanka did not amount to "significant harm" as that term is defined for the purposes of the Act. 3 Relevantly, s 36(2A) provides that a non-citizen will suffer "significant harm" if the non-citizen will be subjected to "cruel or inhuman treatment or punishment" or to "degrading treatment or punishment". The phrase "cruel or inhuman treatment or punishment" is defined to mean an act or omission by which "severe pain or suffering, whether physical or mental, is intentionally inflicted on a person": s 5(1) and "degrading treatment or punishment" is defined to mean an act or omission that causes and is intended to cause extreme humiliation which is unreasonable. The Tribunal did not accept that in sending the appellant to prison, Sri Lankan officials could be said to intend to inflict severe pain or suffering or to intend to cause the appellant extreme humiliation. Accordingly the Tribunal concluded that the element of intention was not satisfied. 4 One of the grounds of the application for judicial review was that the Tribunal, in rejecting the appellant's claim for complimentary protection, adopted an erroneous view of the applicable legislation, namely that the element of intention was not satisfied. At the time of determination of the application for judicial review, the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 ("SZTAL") was binding authority that the Tribunal correctly held that the element of intention required to constitute "significant harm" as that term is defined for the purposes of the Act was not satisfied. In the circumstances, counsel for the appellant at the FCC hearing accepted that this ground of review was accordingly bound to fail, but as the High Court was then reserved on its decision on an appeal from the Full Court decision, the appellant made the formal submission that the Full Court's decision in SZTAL was incorrect. 5 The Notice of Appeal only challenges the SZTAL point determined against him by the FCC. Since the Notice of Appeal was filed, the High Court has dismissed the appeal from SZTAL: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. Accordingly, no error has been shown in the Tribunal decision in concluding that that the circumstances that the appellant may face on return to Sri Lanka did not amount to "significant harm" as that term is defined for the purposes of the Act. 6 Accordingly, the appeal must be dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.