SZUOL v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent of and incidental to the appeal to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 This is an appeal from the judgment of the Federal Circuit Court (the FCC) dismissing the Appellant's application for judicial review of a decision of the former Refugee Review Tribunal (the RRT): SZUOL v Minister for Immigration [2016] FCCA 1983. After the Applicant was granted an extension of time in which to appeal (SZUOL v Minister for Immigration and Border Protection [2017] FCA 179), the hearing of the appeal was adjourned until the High Court had delivered judgment on the appeal from this Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556. That judgment has now been delivered: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405. 2 The Appellant, a national of Sri Lanka and of Tamil ethnicity, 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 RRT on 28 May 2014. 3 The Appellant's notice of appeal as amended and filed after the grant of the extension of time contains a single ground, namely: The learned trial judge Nicholls J 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 … at [50]-[72]. 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 (CB 41). His Honour should have found that the Tribunal did not engage with the claims (arbitrary deprivation of liberty) (CB 41). c. In the circumstances of the [Appellant] it equates with knowledge and intention. d. His Honour fell into error. 4 As is evident, this ground concerns the Appellant's claim for complementary protection. His contention is that the RRT had misconstrued or misapplied terms bearing upon the definition of "significant harm" in s 36(2)(aa), and (2A) of the Migration Act 1958 (Cth), in particular, the terms "intentionally inflicted" and "intended to cause". 5 Section 36(2) provides: A criterion for a protection visa is that the applicant for the visa is: (a) … (aa) a non-citizen in Australia … in respect of whom the Minister is satisfied Australia has protection obligations because 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 … 6 Section 36(2A) elaborates the term "significant harm": A non-citizen will suffer significant harm if: … (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 7 The term "cruel or inhuman treatment or punishment" used in s 36(2A)(d) is defined in s 5(1) of the Migration Act as follows: cruel or inhuman treatment or punishment means an act or omission by which: (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature … 8 The term "degrading treatment or punishment" used in s 36(2A)(e) is defined in s 5(1) as follows: degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission [referred to in sub-paras (a)-(b)] … 9 In SZTAL, the High Court held by a majority that the intention to which these provisions refer is the natural and ordinary meaning of the word "intend", at [26]. A person intends a result when they have the result in question as their purpose. Mere knowledge or foresight that a consequence may result from a particular action is not the equivalent of intention, although an appreciation that a particular consequence will follow may be evidence of an intention, at [27], [113]-[114]. 10 Mr Kumar, who has appeared for the Appellant this morning, acknowledges that the sole ground of appeal in the notice of appeal raises the same issue as was considered by the High Court in SZTAL and acknowledges that the decision of the High Court in SZTAL disposes of that ground in the circumstances of the present case. 11 Ordinarily one would have thought that that would be sufficient to dispose of the appeal and that that circumstance should have been recognised by the Appellant well before today. Counsel submitted, however, that the FCC Judge should have found jurisdictional error by the RRT by it not having engaged at a factual level with the Appellant's particular circumstances were he to be returned as a failed asylum seeker to Sri Lanka. The submission, as I understood it, from this morning's oral submissions and from the short written submissions provided, is to the effect that the Tribunal had engaged with the issue of whether there is a real risk that the Appellant would suffer significant harm at a level of generality and without regard to the Appellant's particular circumstances. 12 Counsel acknowledged that this issue was not raised by the ground of appeal. For that reason alone, it is not necessary for the Court to consider it. But even if it could be considered, I accept the submission of counsel for the Minister that the ground is without merit because it is evident that the Tribunal did address the Appellant's particular circumstances. The Tribunal found that the Appellant lived in a district in the Eastern Province of Sri Lanka, which had always been under the control of the Sri Lankan Army and which had never been a stronghold of the LTTE. The Tribunal accepted that the Appellant had assisted a local politician who was associated with the Tamil National Alliance between June and August 2011, but did not accept that that low-level minor political activity had caused him any detriment in Sri Lanka, or that this had led to the Appellant being imputed with any pro-LTTE or anti-government opinion. The RRT did not accept other claims of the Appellant, namely, that he and his family members had been harassed by Sri Lankan authorities in the past, that his friends had been kidnapped, or that his family have been harassed since his departure from Sri Lanka. 13 The Tribunal referred to the Appellant's status as a young Tamil male from eastern Sri Lanka. It accepted that the Appellant had left Sri Lanka illegally and that if he is returned to Sri Lanka the authorities would assume that he was a failed asylum seeker. The Tribunal accepted that there is the potential for the Appellant to be detained in custody for a few days while questioned about the circumstances of his departure from Sri Lanka. 14 The Tribunal accepted that it was likely that the Appellant would be prosecuted under the Immigration and Emigrants Act of 1948 of Sri Lanka for having left Sri Lanka by illegal means. It considered that the most likely outcome of that prosecution would be a fine. It considered that the likelihood of a prison sentence was remote and not a real risk. The Tribunal did accept that prison conditions in Sri Lanka are poor and overcrowded and that the Appellant may suffer discomfort if detained. But, as I say, it found that that detention may be only up to a few days. The Tribunal then concluded, at [92]: … The Tribunal does not accept in the applicant's circumstances as an apparently healthy young male that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable. 15 The FCC Judge reviewed the Tribunal's findings in some detail. He found that the Tribunal did have regard to each of the various elements relating to the Appellant's attributes which the Appellant contends should have been considered. The Judge also found that the Tribunal had had regard to relevant aspects of the Appellant's submissions. The Appellant's submissions to this Court did not indicate any particular matter to which the Tribunal did not have regard relating to his personal circumstances and the conditions he would face if returned to Sri Lanka. Nor did the Appellant's submissions point to any error by the FCC Judge in his consideration of the matter. It is to be remembered that on appeals of the present kind, this Court intervenes only when error is established and it is incumbent upon appellants to point to such error. No error has been identified, let alone articulated. This contention of the Appellant, even if it had been contained in the notice of appeal, would fail. 16 Accordingly, the appeal is dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.