MZAGZ v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (Revised from transcript) 1 This is an application for an extension of time to commence an appeal. Leave is required of this Court to do so under rr 36.03 and 36.05 of the Federal Court Rules 2011 (Cth). The factors ordinarily relevant to considering whether to grant leave are the length of the delay, whether the applicant has provided an adequate explanation for the delay, any prejudice to the respondent that might be suffered by reason of the delay, and the merits of the proposed appeal: Zheng v Minister for Immigration and Border Protection [2015] FCA 989, [15]. The delay is a period of only eight days and, in an affidavit filed in support of the application, the explanation for the delay that is given is in substance that the applicant was not able to confer with his lawyers about the decision until 14 July 2015. The Minister accepts that the explanation is adequate. He accepts further that there is no prejudice suffered by the grant of an extension of time, and that the delay is not very long. The only matter upon which the parties are at disagreement is about whether the merits of the case are such that the extension of time should be granted. 2 The application for an extension of time is dated 21 July 2015 and contains no arguments or material suggesting any meritorious basis for the application. There is a draft notice of appeal accompanying the application which says under the heading 'Grounds of appeal': Federal Circuit Court Judge made an error in finding that RRT decision was valid. Therefore, the Federal Circuit Court Judge's decision should be dismissed. There are no particulars given of that ground in the draft notice of appeal and, left on its own, that would be an insufficient basis upon which to grant an extension of time or to found a proper appeal. The affidavit accompanying the application made by the applicant, and dated 21 July 2015, has 16 paragraphs. Most of the paragraphs are directed to the delay in making the application and the reasons for that delay. There is in paragraph 16 a handwritten note referring to an attached handwritten document. In that handwritten document there appears the following two dot points: • The Federal Circuit Court failed to find that the RRT did not comply with power given to the RRT. • For example, RRT accepted that I would be detained on my arrival but it failed to make finding that detention was sufficient for complementary protection visa. It is only the second of those dot points that could supply a basis for an extension of time to appeal. It is, put simply, that upon the Tribunal having made a finding that the applicant would be detained on return to Sri Lanka, it was not open consistently with that finding for the Tribunal to go on to conclude that the detention was insufficient for the complimentary protection visa. 3 However, it is clear from the decision of the Federal Circuit Court that there was no such error, because it evaluated what the Tribunal had concluded to be consistent with the earlier finding about detention and with the Tribunal's application, in particular, of the other information and country information that it had available. Relevantly, at [27]-[32] of the Federal Circuit Court's decision, her Honour said: 27. The Tribunal considered country information in paragraph 80 of its Decision Record above. It then rejected the Applicant's claim because the Tribunal found that, in his particular circumstances, a relatively short period of time in remand would not amount to significant harm. The Tribunal then dealt with an alternative basis for rejecting the Applicant's claim being that, even if the Applicant experienced pain or suffering whilst on remand, it would not amount to cruel or inhumane treatment or punishment, unless accompanied by the necessary element of intention. Nowhere however in its Decision Record did the Tribunal make a finding that the Applicant would, or might, be imprisoned in conditions that involved pain or suffering, nor that the State of Sri Lanka knew of such conditions. On the findings of fact made by it, it did not consider such a scenario applicable to the Applicant. 28. The Tribunal was correct to conclude that mere negligence or lack of resources was insufficient to satisfy the element of intention within the definition of "cruel or inhumane treatment or punishment" in s.5 of the Act. The issue in this case was that as set out in SZSPE, namely, whether the pain and suffering as a result of mere negligence was sufficient to satisfy s.5(1) of the Act, which requires that any pain and suffering be intended. 29. On a fair reading of the Tribunal's Decision Record, it is clear that the Tribunal understood the complimentary protection regime used definitions and tests different to those referred to in international human rights treaties. The Tribunal acknowledged it was neither necessary nor useful to ask how the Convention against torture or any of the other international human rights treaties would apply in the circumstances of this case. The Tribunal further acknowledged that the intention requirement, introduced in the definition of cruel or inhuman treatment or punishment and degrading treatment or punishment in s.5(1) of the Act, was not reflected in international jurisprudence. 30. The Tribunal gave consideration to overcrowded prisons and the consequential problems which arose in considering whether those factors were intended to cause extreme humiliation as required by the definition of degrading treatment or punishment. The Tribunal concluded such matters were not intended to cause extreme humiliation as required by the definition in s.5(1) of the Act. Such findings were open to the Tribunal on the evidence before it. The Tribunal did not misstate the test for complimentary protection including its application of the relevant definition in s.5(1) of the Act in considering whether the Applicant met the alternative criteria for protection in s.36(2)(aa) of the Act. 31. The Tribunal made findings in respect of this particular Applicant and concluded that he would not suffer significant harm for the reasons given. The Tribunal found that any discomfort which the Applicant might be exposed to would not be intentionally inflicted and that the Applicant would not be targeted in the prison system. It was not open to the Tribunal thereafter to conclude that the Applicant might suffer "significant harm" as that term is defined. 32. The proceedings are dismissed and costs shall follow the event. It is clear from what her Honour said in those paragraphs that the finding in the Tribunal's consideration of a relatively short period of time in detention upon the applicant's arrival in Sri Lanka was not sufficient to come within the terms of the grant of a complimentary protection visa. There was nothing said to me today, or in any of the materials, that would indicate that the particular finding that was made of a short period of detention upon the applicant's arrival in Sri Lanka, assuming that to be the fact, was something which would necessarily be sufficient for a complimentary protection visa to be granted. 4 The applicant was given an opportunity today to expand upon his reasons and nothing was advanced beyond, understandably, the applicant wishing to have different findings made in his favour. Understandable as that is, it is not a basis upon which I can act. In those circumstances, it is unnecessary for me to traverse the many other arguments that are set out in the submissions by the Minister seeking to explain and justify why the decision of the Federal Circuit Court, and before that, the decision of the Tribunal, were correct. I have read the material relevant to the application, in particular, the submissions of the Minister dated 27 October 2015, the decision of the Tribunal and the decision of the Federal Circuit Court. Counsel who appeared this morning drew my attention to a number of matters in the submissions and in the decision of the Tribunal in support of what had been put in the submissions. For present purposes, it is sufficient to note that nothing has been shown that would otherwise require me to upset the decisions made at any point in the process leading to this appeal. Accordingly, the application will be dismissed. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.