CSI15 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 of Australia (the FCC") dismissing his application for judicial review of the decision of the Administrative Appeals Tribunal ("the Tribunal") affirming the decision of a delegate of the First Respondent ("the Minister") to refuse to grant a Protection Class XA Visa to the appellant. 2 The appellant is a citizen of Sri Lanka. His protection claims under the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) ("the Act") were based on his ethnicity, race and political profile. These claims were not accepted by the Tribunal, which did not find the appellant to be a truthful and credible witness regarding his experiences in Sri Lanka and the reasons he fears persecution there. The Tribunal also rejected the appellant's complementary protection claims, which included the claim that there is real risk that he will suffer "significant harm" if he returned to Sri Lanka by reason that, as a failed asylum seeker who had left Sri Lanka illegally, it is likely that if he returned to Sri Lanka he would be arrested on charges of illegal departure and sent to prison. The Tribunal accepted that, as a returnee to Sri Lanka who departed illegally, it was likely that the appellant would be questioned at the airport, arrested on charges of leaving the country illegally, potentially remanded for a relatively short period pending a bail hearing, and later would be fined if found guilty. 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. Relevantly, s 36(2A) of the Act 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) of the Act 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. 3 The appellant raised two grounds in his application for review. The first ground challenged the Tribunal's conclusion that the element of intention required to constitute "significant harm" was not satisfied. The Federal Circuit Court dismissed this ground, holding on the authority of the Full Federal Court decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69, that 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. 4 The other ground for judicial review alleged that the Tribunal failed to comply with its obligations under s 424A and s 424AA of the Act to give an applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. The basis of this ground was the claim that the Tribunal failed to put to the appellant the "concerns and adverse information" arising in the review and failed to do so in writing after the hearing. The FCC rejected this ground on the basis that s 424A of the Act was not enlivened in respect of adverse credibility findings, citing SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31. The FCC also held that s 424AA did not create any independent obligation on the Tribunal, but was a mechanism by which the Tribunal may orally discharge any obligation under s 424A of the Act at the hearing, citing SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46. The FCC further reasoned that the Tribunal had, in any event, invited the appellant in the course of the hearing to comment on inconsistencies in his evidence. Accordingly, the FCC held that no legal error was shown in the Tribunal's decision. 5 The appellant has relied on the same two grounds in his Notice of Appeal, neither of which has any merit. Since the FCC decision, the High Court has handed down its decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 which upheld the Full Court decision in SZTAL and the FCC was correct to hold that the Tribunal did not err in concluding that the element of intention required to constitute significant harm was not satisfied. The FCC was also correct, for the reasons given, to reject the ground alleging that Tribunal's failure to comply with its obligations under s 424A and s 424AA 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.