FEDERAL COURT OF AUSTRALIA AGK15 v Minister for Immigration and Border Protection [2016] FCA 1012 Appeal from: AGK15 v Minister for Immigration & Anor [2015] FCCA 1342 File number: NSD 687 of 2015 Judge: RANGIAH J Date of judgment: 24 August 2016 Catchwords: MIGRATION – application for an extension of time to file notice of appeal – Federal Circuit Court affirmed decision of the Minister's delegate not to grant a Protection visa – merit of proposed appeal – meaning of 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment' – intentional infliction of harm – application dismissed Legislation: Migration Act 1958 (Cth) ss 5, 36(2)(a), 36(2)(aa), 36(2A) and 91R Federal Court Rules 2011 (Cth) r 36.03 Refugees Convention 1951 Article 1A(2) Refugees Protocol 1967 Cases cited: SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 Date of hearing: 11 August 2015 and 18 August 2016 Date of last submissions: 3 June 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr J Kay-Hoyle Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 687 of 2015 BETWEEN: AGK15 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 24 August 2016 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the first respondent's costs fixed in the sum of $8,250. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT RANGIAH J: 1 This is an application for an extension of time to file a notice of appeal against a judgment of the Federal Circuit Court of Australia delivered on 15 May 2015. 2 The Federal Circuit Court dismissed the applicant's application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, refusing the grant of a Protection (Class XA) visa. 3 The applicant requires an extension of time because he did not file a notice of appeal within 21 days of the date of the Federal Circuit Court judgment as required by r 36.03 of the Federal Court Rules 2011 (Cth). He filed the present application and a draft notice of appeal on 15 June 2015, some four days after the 21 days expired. His explanation for the delay is that he is unable to afford legal representation for the appeal. 4 The Minister accepts that the applicant has provided a reasonable explanation for the delay, and that he is not prejudiced by the delay, but submits that the application for leave should be refused because the proposed appeal lacks merit. Accordingly, I will focus on the merit of the proposed appeal. 5 The applicant's draft notice of appeal contains one ground, namely: The Refugee Review tribunal made a jurisdictional error in that it misapplied the well-founded fear test. Particulars The Appellant claimed fear of persecution from the Sri Lankan authorities as he had familial ties with the LTTE. The RRT did not apply the test correctly. 6 The applicant was represented by a migration agent before the Tribunal and by counsel before the Federal Circuit Court, but he was self-represented before this Court. The appeal was part heard on 11 August 2015. The applicant did not file any written submissions, but made oral submissions on that occasion with the assistance of an interpreter. The Minister informed the Court that an appeal in another matter had the potential to affect the outcome of this appeal, and the hearing was adjourned pending delivery of judgment in that appeal. After that judgment was delivered, the appeal was relisted for hearing on 18 August 2016. The applicant did not appear on that occasion. 7 The applicant's oral submissions at the initial hearing did not address the ground set out in the draft notice of appeal. Instead, his submissions were directed to the merits of his application for a Protection visa. The applicant said that he fears for his life and fears that he will be imprisoned and tortured if he is returned to Sri Lanka because of the way members of his family have been treated there. 8 The applicant's application for a Protection visa was based on s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) which provide, relevantly: 36 Protection visas – criteria provided for by this Act … (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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; … 9 Article 1A(2) of the Refugees Convention 1951, as amended by the Refugees Protocol 1967, defines a refugee as a person who: …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country… 10 Before the Tribunal, the applicant claimed to fear harm by the Sri Lankan authorities on the basis of his Tamil race, his imputed association with Liberation Tigers of Tamil Eelam ("LTTE"), as a failed asylum seeker and as a person who left Sri Lanka illegally. 11 The Tribunal found that aspects of the applicant's evidence were not credible. However, it found that some members of his family were involved with the LTTE and had been killed or imprisoned by the Sri Lankan authorities. The Tribunal also accepted that the applicant had been detained, slapped and threatened by soldiers in 2006, and that he left for India later that year, before returning to Sri Lanka in 2010. It found that he had been questioned by the authorities on one occasion since his return, and that his fishing boat had been boarded by navy personnel on two occasions and his catch stolen on one of those occasions. 12 The Tribunal found, primarily on the basis of country information, that the applicant faces no real chance of persecution in Sri Lanka on the basis that he is Tamil. It found that, given the limited nature of his interactions with the authorities and the time that had passed, there is no real chance that he will be persecuted on the basis of his family's connections with the LTTE, or his imputed political opinion. 13 The Tribunal also found that the applicant faces no real chance of persecution on the basis that he is a failed asylum seeker. While he may be detained for a few days when he returns to Sri Lanka while checks are undertaken, that process is not discriminatory and applies to all persons arriving in Sri Lanka without entry documents. The Tribunal found that the risk of detention did not meet the requirements of s 91R(1)(a) or (c) of the Migration Act. 14 The Tribunal found that upon his return the applicant will be charged with an offence based on his illegal departure from Sri Lanka. He may spend up to two weeks in jail on remand and may be fined. However, the Tribunal considered that the law is not discriminatorily applied on the basis of any Convention ground. 15 Accordingly the Tribunal found that the applicant does not have a well-founded fear of persecution for a Convention reason and was not satisfied that the applicant satisfies s 36(2)(a) of the Migration Act. 16 The Tribunal then considered the application for complementary protection. It found that there is no real risk that the applicant will suffer "significant harm" within the meaning of that expression in ss 36(2)(aa) and 36(2A) of the Migration Act in Sri Lanka. While the applicant is at risk of spending up to a fortnight in jail in crowded and unpleasant conditions because he is a failed asylum seeker and a person who left the country illegally, the Tribunal found that does not amount to "significant harm". Such treatment is not "cruel or inhuman treatment or punishment" within ss 5 and 36(2A) of the Migration Act because any pain and suffering would not be "intentionally inflicted". Neither is it "degrading treatment or punishment" within ss 5 and 36(2A), because it was not "intended to cause extreme humiliation". The Tribunal considered that the overcrowding and unpleasant conditions are a result of the general state of the system, negligence or indifference by the State. 17 The Tribunal therefore affirmed the decision under review. 18 The ground presently taken, that the Tribunal misapplied the well-founded fear test, was not argued before the Federal Circuit Court. Before that Court, the applicant relied only on ground 2 of his amended application. In his reasons, the primary judge mistakenly set out ground 2 of the applicant's original application, rather than ground 2 of his amended application, which was different. That seems to have been a mere clerical error, which did not affect the outcome of the appeal as his Honour's reasons went onto deal with the amended ground. 19 Ground 2 of the applicant's amended application was as follows: 2. The Tribunal's Decision involved jurisdictional error insofar as the Tribunal failed to comply with s 499(2A) of the Act and Direction No. 56 - Consideration of Protection Visa applications, dated 21 June 2013 (Direction 56) Particulars a. Direction 56 provides that "[i]n performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department … to the extent they are relevant to the decision under consideration. PAM3: Refugee and humanitarian - Complementary Protection Guidelines b. Section 23 and 25 of the PAM3: Refugee and humanitarian – Complementary Protection Guidelines (Complementary Protection Guidelines) relevantly respectively state: i. "Intentionally inflicted pain or suffering...In certain circumstances, it may be appropriate to infer an intention to inflict pain or suffering if it is evident that such pain or suffering was or may be knowingly inflicted." ii. "Intended to cause...in certain circumstances it may be appropriate to infer an intention to inflict extreme humiliation where it is evident that humiliation was or may be knowingly inflicted." c. The Tribunal said that: i. "The definition of 'cruel or inhuman treatment or punishment' in s 5(1) of the Migration Act requires that the pain and suffering be "intentionally inflicted" on a person and the definition of "degrading treatment or punishment" requires that the relevant act or omission be "intended to cause" extreme humiliation" (at [152]: and ii. "The Tribunal does not consider that overcrowding, and very unpleasant conditions, which are a product of the general state of the system and negligence and indifference, have the requisite intention required in the definitions of "cruel inhuman treatment or punishment" and "degrading treatment or punishment" (at [152]). d. The Tribunal did not consider whether it was "evident that such pain or suffering was or may be knowingly inflicted" by the person who imprisons the applicant and did not consider whether it was "appropriate to infer an intention to inflict severe pain or suffering". Further, the Tribunal did consider that the conditions in prison were due, at least in part, to "negligence and indifference" of authorities. e. Therefore, the Tribunal failed to failed to comply with the Direction 56 and s 499(2A). 20 The ground, as argued, was that: the Tribunal had accepted that there was "indifference" by the Sri Lankan government to crowded and unpleasant prison conditions; that such indifference amounted to wilful blindness; and the Tribunal should have considered whether such wilful blindness amounted to "intentional infliction" of pain and suffering or extreme humiliation for the purposes of ss 5 and 36(2A) of the Migration Act. 21 The Federal Circuit Court rejected that argument, holding that by the word "indifference", the Tribunal meant no more than "insouciance" (that is, free from concern, without anxiety, disinterest). That did not address the applicant's submission: that indifference or insouciance by the authorities, which amounts to wilful blindness, may be regarded as amounting to the intentional infliction of pain and suffering or extreme humiliation. The Full Court has since held in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 that there is no basis to equate the expression "intentionally inflicted" with recklessness. Rather, the natural and ordinary meaning of "intentional inflicted" in the definition of "cruel or inhuman treatment or punishment" and "intended to cause" in the definition of "degrading treatment or punishment" in s 5 of the Migration Act, is actual subjective intention by the actor to bring about the victim's pain and suffering or humiliation. The ground taken before the Federal Circuit Court could not succeed for that reason. 22 As to the ground relied on in the present application, the applicant has not explained how the Tribunal is said to have "misapplied the well-founded fear test". I cannot detect any arguable case of error in the Tribunal's consideration of whether the applicant has a well-founded fear of persecution in Sri Lanka. 23 There is no merit in the proposed appeal. The application should therefore be dismissed with costs. The Minister has filed an affidavit as to the costs estimated to be recoverable upon taxation. I am satisfied that it is appropriate to fix costs at $8,250. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 24 August 2016