FEDERAL CIRCUIT COURT OF AUSTRALIA
AGK15 v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1342	

Catchwords: 
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa –whether the Tribunal engaged in a qualitative assessment of the nature of potential detention in Sri Lanka – whether the tribunal was blind to the conditions of potential detention in Sri Lanka – no jurisdictional error – application dismissed. 	

Legislation:  
Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958 ss.36(2)(a), 36(2)(aa), 424A, 424AA, 476, 499	

Applicant:	AGK15	

First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION	

Second Respondent:	REFUGEE REVIEW TRIBUNAL	

File Number:	SYG 795 of 2015	

Judgment of:	Judge Street	

Hearing date:	15 May 2015	

Date of Last Submission:	15 May 2015	

Delivered at:	Sydney	

Delivered on:	15 May 2015	

REPRESENTATION
Counsel for the Applicant:	Mr R. Clark	

Solicitors for the Applicant:	Fragomen	

Counsel for the First Respondent:	Mr J. Kay Hoyle	

Solicitors for the First Respondent:	Clayton Utz	

ORDERS
(1)	The amended application be dismissed.
(2)	The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT OF AUSTRALIA 
AT SYDNEY	
SYG 795 of 2015
AGK15	
Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION	
First Respondent

REFUGEE REVIEW TRIBUNAL	
Second Respondent

REASONS FOR JUDGMENT
1.	This is an application within the Court’s jurisdiction under s.476 for a Constitutional writ in respect of a decision of the Tribunal made on 19 February 2015 affirming a decision not to grant the applicant a Protection (Class XA) visa.  The only ground of the application that is pursued is ground 2:
	2. The Tribunal engaged in jurisdictional error in respect of its finding that the detention of the applicant did not amount to persecution.
	Particulars
	The Tribunal, in finding that the applicant’s detention was not of a sufficient length so as to amount to persecution (and in so doing, qualitatively assessing the nature of the detention), misconstrued the applicable law.
2.	Counsel for the applicant acknowledged that the Tribunal’s decision identified in para.9 the obligation to take into account the policy guidelines in accordance with Ministerial Direction Number 56 made under s.499.  Counsel for the applicant sought to develop an argument in relation to complementary protection that regard had not been had to that Ministerial Direction, in essence, by reason of an alleged inferred  failure to address the guidance given.  That alleged failure was the guidance given on both pages 41, 44 and 46 of the Ministerial Direction:
	In certain circumstances, it may be appropriate to infer an intention to inflict pain or suffering if it is evident that pain or suffering was or may be knowingly inflicted.
3.	Relevantly, in dealing with the applicant’s claim to fear of persecution, the Tribunal addressed the application of the Immigrants and Emigrants Act 1949, which it held was a law of general application and not enforced on a discriminatory basis and may give rise to the applicant being placed in jail on remand.  There was no specific claim by the applicant of a fear that there was a real risk he would suffer significant harm by reason of the conditions in any place of detention.  Nonetheless, the Tribunal clearly dealt with that issue and, relevantly, found:
	149.	The Tribunal has no evidence that the applicant faces a real chance of being unable to subsist if he returns to Sri Lanka.  The Tribunal does not consider that the applicant faces a real risk of degrading treatment or punishment through an inability to subsist or a denial of social and economic rights, or any other form of significant harm.
	150.	In terms of the risk faced by the applicant due to him being a failed asylum seeker the Tribunal assesses the risk of harm to the applicant on this basis as remote. That includes, in the Tribunal’s view, the real risk of significant harm. The Tribunal forms a similar view with respect to potential harm relating to the applicant leaving Sri Lanka illegally. Related to both issues, the applicant is likely to be investigated on his return by authorities and may be remanded in prison for several days as part of a charge under the Immigrants and Emigrants Act, possibly up to a fortnight in crowded and unpleasant conditions.  Most returnees are detained for a few days whilst waiting for bail which is routinely given. As indicated from information previously cited, the applicant is likely to be given a fine for his illegal departure from Sri Lanka. The Tribunal does not think that the imposition of a fine amounts to significant harm.
	…
	152.	In terms of the applicant’s treatment in detention, the Tribunal accepts that prison conditions are poor, particularly in terms of overcrowding, and the Tribunal noted the applicant’s adviser’s submissions in this respect.  The Tribunal does not accept that spending up to a fortnight in jail amounts to ‘significant harm’ or that such treatment is intentional as is required by the law in Australia. The Tribunal does not accept that there is a real risk the applicant will be subject to ‘torture’ as defined,. while he is on remand. The definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Migration Act requires that the pain or 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.  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’. The Tribunal does not accept therefore that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prison due to overcrowding.  
4.	Counsel for the applicant focuses on the reference in para.152 to the word “indifference” and submitted that must give rise to a finding of knowledge or circumstances in which there was something equivalent to Nelsonian blindness such as required the Tribunal to address whether the conditions were knowingly inflicted.
5.	It is clear from the authorities the Tribunal’s decision must be read as a whole and without a keen eye for error.  I am satisfied that the word “indifference” means no more than “insouciance” and was not a finding of knowledge in relation to the treatment.  It is clear that the Tribunal, in para.152, was well alive to the issue of intentional infliction and made an adverse finding to the applicant in that regard.  That adverse finding was clearly open and the applicant’s challenge is really an impermissible challenge to that adverse finding of fact. 
6.	Whilst there may be circumstances in which the Court may infer that the Tribunal has failed to have regard to the Ministerial Direction, there is no proper basis in this case to draw any such inference, and I am satisfied that the Tribunal had regard to the Ministerial Direction consistent with para.9 and the findings made in para.152.  
7.	In these circumstances, there is no jurisdictional error of the kind alleged in the amended application.  The amended application is dismissed.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street 

Associate:  

Date:  21 May 2015