SZUOL v Minister for Immigration and Border Protection

1. The time within which the applicant may commence an appeal in this Court against the decision in SZUOL v Minister for Immigration and Border Protection [2016] FCCA 1983 is extended to 1 March 2017.
2. The appeal be heard at a date and time to be fixed by the Court but after the delivery of the decision by the High Court of Australia in the appeal from the decision of the Full Bench of this Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69.
3. The costs of the interlocutory applications be costs in the cause on the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 The applicant, a national of Sri Lanka, arrived in Australia by boat on 19 July 2012. His application for a protection visa was refused by the Minister's delegate, and that refusal was affirmed by the Refugee Review Tribunal (the Tribunal) on 28 May 2014. 2 The applicant's application for judicial review in the Federal Circuit Court (the FCC) was unsuccessful: SZUOL v Minister for Immigration [2016] FCCA 1983. That decision was delivered on 2 August 2016. 3 The applicant wishes to appeal to this Court but did not file a notice of appeal within the 21 day period prescribed by r 36.03 of the Federal Court Rules 2011 (Cth) (the FCR). On 29 August 2016, he filed an application for an extension of time in which to commence an appeal. 4 The applicant sought an adjournment of the hearing of the application until after the decision of the High Court on the appeal from the decision of the Full Court of this Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. As I understand it, that appeal is listed for hearing in the High Court on 5 April 2017. 5 The Minister opposed the adjournment. As the issues on the application for the extension of time and on the application for the adjournment seemed to turn on a common matter, I have heard both applications concurrently but it is convenient to consider, first, the application for the extension of time. 6 The Court does have a discretion to extend time. The principal matters bearing upon the exercise of the discretion are the length of the extension sought, the explanation for the appeal not having been commenced within time, the prejudice to the respondent if the extension is allowed, the prejudice to the applicant if the extension is refused, and the conduct of the parties in the litigation generally. Limitation periods, such as that fixed by r 36.03 of the FCR, serve an important purpose in the administration of justice, and that purpose is not to be frustrated by the too ready grant of an extension. 7 Nevertheless, in this case, the period of extension sought is relatively short and the applicant has provided an explanation. He attributes the delay to the absence of his solicitor overseas at the time the FCC delivered its decision and to a further delay while that solicitor sought advice from counsel. Counsel for the Minister has not challenged that explanation, nor did counsel for the Minister contend that the Minister would be prejudiced if the extension is allowed. There is no matter in the applicant's conduct which operates adversely to him in relation to the application for the extension. 8 Accordingly, the critical matter bearing on the application for the extension is the prejudice to the applicant if the extension is refused. If the applicant cannot show that his proposed grounds of appeal are reasonably arguable, then he will suffer no prejudice. He is not, however, required to show that it is probable that those grounds will succeed. 9 The applicant's proposed Notice of Appeal contains two grounds, but his counsel has indicated that he pursues only one, namely, Ground 1 which provides: The learned trial judge … should have found that the decision of the Tribunal involved jurisdictional error insofar as the Tribunal misconstrued or misapplied the words "intentionally inflicted" and "intended to cause" in the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" in s 5(1) of the Act. His Honour thereby erred … Particulars a. The Appellant had made the claims that there would be intention on the parts of the authorities to cause harm. b. The [Appellant] had claimed arbitrary deprivation of life … . His Honour should have found that the Tribunal did not engae (sic) with the claims … . c. In the circumstances of the [Appellant] it equates with (sic) knowledge and intention. d. His Honour fell into error. 10 Ground 1 engages, at least in part, the issue raised in SZTAL. Nevertheless, counsel for the Minister submits that even if the appeal in SZTAL succeeds in the High Court, it will have no effect on the present applicant's appeal. 11 SZTAL concerns the criterion for complementary protection for which s 36(2)(aa) of the Migration Act 1958 (Cth) provides. Pursuant to that provision, Australia has protection obligations to a non-citizen in respect of who the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. The term "significant harm" is elaborated in the following provisions of s 36. 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". Those terms are defined in s 5 of the Migration Act in a way which, with one qualification, incorporates an element of intention. 12 In SZTAL at first instance (SZTAL v Minister for Immigration [2015] FCCA 64), Judge Driver in the FCC held that the concept of intention contained in the terms "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" connoted the existence of an actual subjective intention on the part of a person to bring about the suffering or humiliation, as the case may be, at [49]. 13 In doing so, his Honour rejected a submission that the necessary intention would exist if the person foresaw the consequences of his or her conduct and proceeded regardless. The decision of Judge Driver was upheld on appeal by the Full Court of this Court: SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. As indicated, the High Court has granted special leave to appeal against that decision. 14 Counsel for the Minister submits that the decision by the High Court in SZTAL will not affect the applicant's proposed appeal. That is so, he contends, because the issue of intention does not arise given that the Tribunal had found that the circumstances which the applicant may face on return to Sri Lanka, namely, arrest and detention and imprisonment for a short period by reason his illegal departure from Sri Lanka, would not amount to "severe pain or suffering", or pain or suffering which could reasonably be regarded as "cruel or inhuman" in nature, or "extreme humiliation". In this respect, counsel for the Minister emphasised the Tribunal's findings at [92]. 15 I consider that there is some force in the submission of counsel for the Minister. However, I do not think that it should carry the day. It may well be that the definitions in s 5 draw a clear distinction between the effect of conduct, (suffering or humiliation, as the case may be), on the one hand, and an intention or absence of intention to bring about that effect, on the other as the Minister contends. In that event, an absence of the necessary effect, that is, suffering or humiliation, would mean that the question of intention would not arise. 16 However, it may (I emphasise that I am saying no more than "may") be arguable that the effect of conduct on a person is in part determined by whether or not that effect was inflicted intentionally, with foresight that the effect might result but choosing to proceed regardless, or perhaps with no intention at all. That is to say, the clear distinction between these two concepts, on which the submission of counsel for the Minister depends, may not be appropriate. Given that issues concerning the proper construction of the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" are presently before the High Court, I consider it undesirable and inappropriate to explore those issues presently. 17 I am prepared to proceed on the basis that the applicant may have a ground of appeal which, depending on the outcome of SZTAL, is reasonably arguable and, accordingly, that he may suffer some prejudice if the extension of time is refused. 18 That then gives rise to a question as to whether or not the Court should grant the extension of time sought or accede to the adjournment application. In resolving that question, I have had regard, essentially, to pragmatic considerations. If the matter is simply adjourned, the matter may well come back before the Court on an extension of time application. If it should turn out that the extension is granted, then it would need to come back yet again for the hearing of the appeal. It seems undesirable that there should be three hearings before this Court in proceedings of the present kind. 19 For that reason, I consider, for essentially pragmatic reasons, that the extension of time should be allowed. Accordingly, the orders of the Court are these: (1) The time within which the applicant may commence an appeal in this Court against the decision in SZUOL v Minister for Immigration [2016] FCCA 1983 is extended to 1 March 2017. (2) The appeal be heard at a date and time to be fixed by the Court but after the delivery of the decision by the High Court in the appeal from the decision of the Full Bench of this Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. (3) The costs of the interlocutory applications be costs in the cause on the appeal. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.