FEDERAL CIRCUIT COURT OF AUSTRALIA
MZAGZ v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1702	

Catchwords: 
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – no real risk of suffering significant harm – application dismissed.	

Legislation:
Immigrants and Emigrants Act 1948 (Sri Lanka)
Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 36(2A), 36(2B), 65
Migration Amendment (Complementary Protection) Act 2011 (Cth)
Migration Regulations 1994 (Cth), Sch 2:866.221	

Minister for Immigration & Citizenship v MZYYL & Anor [2012] FCAFC 147
SZSPE v Minister for Immigration & Anor [2013] FCCA 1989
SZTAL v Minister for Immigration & Anor [2015] FCCA 64	

Applicant:	MZAGZ	

First Respondent:	Minister For Immigration & Border Protection	

Second Respondent:	Refugee Review Tribunal	

File Number:	MLG 1280 of 2014	

Judgment of:	Judge Hartnett	

Hearing date:	9 June 2015	

Delivered at:	Melbourne	

Delivered on:	22 June 2015	

REPRESENTATION
Counsel for the Applicant:	Ms Harris	

Solicitors for the Applicant:	Victoria Legal Aid	

Counsel for the First Respondent:	Mr Brown	

Solicitors for the First Respondent:	Sparke Helmore	

ORDERS
(1)	The application is dismissed.  
(2)	The Applicant pay the costs of the First Respondent in the sum of $5,800.
(1)	
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne	
MLG 1280 of 2014
MZAGZ	
Applicant

And

Minister For Immigration & Border Protection	
First Respondent

Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	The Application before the Court sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 30 May 2014.  The Tribunal affirmed a decision of the First Respondent by his delegate not to grant the Applicant a protection (Class XA) visa (‘the protection visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).  
2.	In an Amended Application filed by the Applicant on 28 May 2015 the Applicant sought:-
a)	an order that the decision of the Tribunal be quashed;
b)	a writ of mandamus directed to the Tribunal requiring it to determine the Applicant’s application according to law;
c)	a declaration that the decision of the Tribunal dated 30 May 2014, is unlawful void, and of no force and effect;
d)	prohibition directed to the First Respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the Tribunal; and
e)	an order for costs.
3.	The Applicant also sought, by way of interlocutory order, that the hearing of this proceeding be adjourned pending the decision in SZTAL v Minister for Immigration & Anor (‘SZTAL’), which on the day of hearing was on appeal to the Full Court of the Federal Court of Australia and still to be determined. The case before me, it is conceded by the Applicant, is identical to the application in the case of SZTAL and the factual circumstances of each case indistinguishable.
4.	I was not persuaded at the hearing of this matter that the fact that there is an appeal on foot from the decision of Judge Driver in SZTAL warrants an adjournment of this proceeding. No submissions were made by either party that I should find Judge Driver was clearly wrong in his decision in that case.  Further, as Judge Driver noted in paragraph 48 of his decision in SZTAL, the decision in SZSPE v Minister for Immigration & Anor (SZSPE), which Judge Driver described as “on all fours” with SZTAL at paragraph 47 of his decision, and being an appeal to the Federal Court of Australia from a decision of Judge Emmett in this Court, was dismissed. Judge Emmett had concluded there was no error in the Tribunal’s approach. The decision of SZSPE is binding on this Court as to the proper approach to the intention provisions in the s.5(1) definitions of the Act. On that basis alone, the Applicant’s submission in these proceedings as to that matter must fail. Further, in the facts of this case, I was not satisfied that it would be in the interests of the administration of justice to adjourn on the basis contended for by the Applicant.
5.	The grounds of the Application are as follows:-
	(1)	The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act and asked itself the wrong question with respect to the intent of subjecting the Applicant to significant harm.
	Particulars
	(a)	The Tribunal found that the Applicant might be prosecuted under the Immigrants and Emigrants Act 1948 on his return to Sri Lanka, for leaving without a valid travel document or leaving from a place other than an approved place of departure.
	(b)	The Tribunal found that if the Applicant is charged with an offence under the Immigrants and Emigrants Act 1948 he will be held in remand on his return to Sri Lanka.
	(c)	The Tribunal found that prison conditions in Sri Lanka:
	(i)		“may not meet international standards”;
	(ii)	“have been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”;
	(iii)	have been assessed by a former UN Special Rapporteur on Torture as amounting to “degrading treatment”;
	(iv)	are subject to “overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives, and instances of torture, maltreatment and violence”;  and
	(v)	that, “there are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system”; and
	(vi)	that “the Applicant may suffer discomfort while in prison.” 
	(d)	The Tribunal erred in finding that the poor prison conditions in Sri Lanka are “due to a lack of resources, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment” in circumstances where it found that the prison conditions involve instances of torture, and where torture is defined as an act or omission where pain or suffering is intentionally inflicted.
	(e)	The Tribunal erred in finding that the poor prison conditions in Sri Lanka “do not appear to give rise to significant harm under Australian law” in circumstances where it found that the prison conditions involve instances of torture, and where torture is defined as constituting significant harm in s.36(2A).
	(f)	The Tribunal further erred by asking itself the wrong question in asking whether the poor prison conditions were an intentional act of the Sri Lankan government, when it should have asked itself whether the deliberate act of imprisoning the Applicant in conditions that involve pain or suffering constituted an act by which pain and suffering is intentionally inflicted by the Sri Lankan government.
6.	The Applicant relied on an Outline of Submissions filed on 28 May 2015 and the Applicant provided a List of Authorities.
7.	The First Respondent opposed both the application for an adjournment and the substantive application, and sought dismissal of the proceedings with an order for costs in the sum of $5,800.  The First Respondent filed a Court book in the proceedings, and its contents were in evidence before me. The First Respondent relied on Submissions filed on 3 June 2015, and provided a List of Authorities.
8.	The Applicant in essence argued that the Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act and asked itself the wrong question with respect to the intent of subjecting the Applicant to significant harm. Further, that the Tribunal erred in its consideration of whether the Applicant would face “significant harm” due to poor prison conditions in Sri Lanka.  The Applicant submitted the Tribunal’s decision was thus tainted by jurisdictional error. For the reasons which follow, I reject those submissions and shall dismiss the application.  
History
9.	The Applicant is a male Tamil citizen of Sri Lanka.  On 22 November 2012, he applied to the Department of Immigration and Border Protection (‘the Department’) for the protection visa.  In his statutory declaration attached to the visa application, the Applicant set out the facts by which he said that he was owed protection obligations under s.36 of the Act and cl 866.221 of sch.2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
10.	The Applicant claimed he had a well-founded fear of persecution based on his Tamil ethnicity, being a failed asylum seeker, being a Tamil from the north of Sri Lanka, departing Sri Lanka illegally, his imputed political opinion as the son of a suspected Liberation Tigers of Tamil Eelam (‘LTTE’) supporter, his imputed political opinion as a supporter of the LTTE and his imputed political opinion as the son of someone who has fled Sri Lanka and who resides outside of Sri Lanka.
Legislative Background
11.	Section 36(2)(a) of the Act provides:-  
	“A criterion for a protection visa is that the applicant for the visa is:
	a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee:”
12.	Section 36(2)(aa) of the Act (‘the complementary protection provisions’) provides:-  
	“(2) A criterion for a protection visa is that the applicant for the visa is:
	(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;”
13.	Section 36(2A) of the Act identifies what is meant by “significant harm” and provides:-
	“A non-citizen will suffer significant harm if:
	the non‑citizen will be arbitrarily deprived of his or her life; or
	the death penalty will be carried out on the non‑citizen; or
	the non‑citizen will be subjected to torture; or
	the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
	the non‑citizen will be subjected to degrading treatment or punishment.”
14.	Section 5(1) of the Act defines “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”.  It makes clear that the listed categories of ‘significant harm’ are exhaustive. 
	“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;
	but does not include an act or omission:
	(c) that is not inconsistent with Article 7 of the Covenant; or
	(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”
	“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:
	that is not inconsistent with Article 7 of the Covenant; or
	that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”
15.	Sections 36(2)(aa) and (2A) of the Act (‘the complementary protection regime’) were inserted into the Act by the Migration Amendment (Complementary Protection) Act 2011 (Cth).
16.	The Full Court of the Federal Court of Australia (Lander, Jessup and Gordon JJ) considered the application of the complementary protection provisions in Minister for Immigration & Citizenship v MZYYL & Anor. The Full Court said in paragraphs 18 to 20 therein the following:-
	“[18] The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention.  The regime establishes criteria “that engage” Australia’s express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights done at New York on 16 December 1996 (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 16 December 1984 (CAT) and the Convention on the Rights of the Child (CROC) (collectively the International Human Rights Treaties):   Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions:  see, by way of example, the definitions in section 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT:  see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Section 36(2B)(a) and (b) have adopted a different and contrary position. Section 36(2B)(a) and (b) relieve Australia from its protection obligations in section 36(2)(aa) if those two particular circumstances are satisfied.
	[19]  Further, the test adopted in s 36(2)(aa), (2A) and (2B) is significant harm, not irreparable harm, being the test referred to in the General Comment No 31 on the ICCPR (Human Rights Committee, General Comment No 31:  The Nature of the General Legal Obligations Imposed on State Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) at [12]), or serious harm, being the standard referred to and defined in s 91R of the Act.
	[20] It is therefore neither necessary nor useful to ask how the CAT or any of the international law treaties would apply to the circumstances of this case.  The circumstances of this case are governed by the applicable provisions of the Act, namely s 36(2)(aa) and (2B), construed in the way that has been indicated.”
The Tribunal’s Decision
17.	The Applicant appeared before the Tribunal on 11 April 2014 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.  The Applicant was represented in relation to the review by his registered migration agent.  The representative attended the Tribunal hearing.
18.	The Tribunal noted the Applicant was born on 10 June 1990 in Jaffna, Northern Province Sri Lanka.  He is a Hindu Tamil.  He claimed in his protection visa application that his father was missing but that he was in contact with his mother.  His mother and siblings reside in Sri Lanka.  He has one brother who lives in Switzerland.  The Applicant told the Tribunal he had recently discovered that his father was in India.  The Applicant completed a Diploma in Desktop Publishing and worked as a shop assistant when he lived in Colombo between 2009 and 2011.  He then worked in odd jobs until three months before he left Sri Lanka.
19.	The Applicant arrived in Australia as an unauthorised boat arrival without any identity documents.  The Tribunal was satisfied the Applicant was a Sri Lankan national who resided in Sri Lanka before coming to Australia in June 2012, and that Sri Lanka was his receiving country for the purposes of s.36(2)(aa) of the Act.  The Tribunal noted the Applicant’s main claim that he was at risk because his father was suspected of assisting the LTTE.  The Tribunal noted that the Applicant’s claims had changed significantly over time.  When asked about that, the Applicant told the Tribunal that he had not mentioned that he had been detained, beaten and tortured in his entry interview, because he was told by the interviewer that if he was returned to Sri Lanka his details would be provided to the Sri Lankan authorities, and he understood this to mean they would tell them what he had claimed in his protection visa application.  He was afraid that if he mentioned being detained and beaten, it would get him into trouble if he was returned.  
20.	In written submissions, the Applicant’s migration agent argued that the entry interview with the Applicant was not for the purposes of an assessment of the Applicant’s claim for protection, but rather to establish the reason for his travel to Australia in order to determine whether the Applicant had prima facie engaged Australia’s protection obligations.  Due to the purpose of the interview and the absence of legal representation, it was unreasonable to make any adverse credibility findings on the basis of the entry interview.  The Tribunal responded at paragraph 37 of its Decision Record dated 30 May 2014 (‘the Decision record’) that it would expect the Applicant to disclose that he had been detained and tortured when he was asked why he had left Sri Lanka.  It would not expect him to make a statement the authorities did not harm him, if he was beaten and tortured, and further answer no to a specific question about whether he was detained.  
21.	It was put to the Applicant at the Tribunal hearing that perhaps he had fabricated additional claims after he was rejected by the delegate.  The Tribunal said at paragraphs 56 and 57 of its Decision Record the following:-
	“56. Taking into account the recent inventions in the applicant’s claims, the inconsistencies in his claims, the vague nature of some of his evidence, the implausibility of some aspects of his claims, the fact some aspects appear to be inconsistent with country information, the Tribunal does not accept:   
	● That the applicant’s father was perceived to have helped the LTTE.
	●	The applicant was questioned or detained because of a perception that his father was linked to the LTTE or a supporter of the LTTE.
	● the (sic) applicant was detained and ill-treated by the Sri Lankan authorities
	The Applicant is regarded as having any links to the LTTE.
	57. The tribunal accepts:   
	●The applicant is a young Tamil male who originates from Jaffna in the North of Sri Lanka
		●The applicant’s father was questioned about links to the LTTE at the conclusion of the war.
		●During the conflict  the applicant was subjected to round ups where his ID was checked  he was questioned and released
		●That on a few occasions the authorities took his motorbike		and used it for a couple of days
		●The applicant has a brother in Switzerland.  The applicant 	said he was never questioned about his brother in	Switzerland.  His brother did not have a bad file and the 	Tribunal accepts that this is the case
		●The applicant left Sri Lanka without a valid travel document	and left from a place other than an approved place of departure Sri Lanka which are offences under the Immigrant and Emigrants Act of 1948
		● The Tribunal accepts that the applicant would be returned to 	Sri Lanka on a temporary travel document and in these circumstances the Tribunal accepts that the Sri Lankan authorities would assume that he was a failed asylum seeker.” 
22.	The Tribunal did not accept that there was a real chance the Applicant would be accused of being a former member or supporter of the LTTE.  The Tribunal did not accept there was a real chance that he was be imputed with a political opinion in support of the LTTE.  The Tribunal noted at paragraph 66 of its Decision Record: -
“Following the Full Federal Court decision in MIAC v SZQRB [2013] FCAFC 33, in considering s.36(2)(aa) the Tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable in the context of assessment of the Refugee Convention definition. Consequently for the same reasons the Tribunal is satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm because he or his father were perceived to be connected to the LTTE.”  
23.	The Tribunal considered country information in respect of the Applicant’s claim as being a failed asylum seeker and said at paragraph 75 of its Decision Record:-
“The Tribunal accepts that the applicant will be questioned about the organiser and means of his illegal departure but does not accept that this questioning would amount to serious or significant harm.  The Tribunal finds that, based on the overall weight and authority of the country information and the applicant’s individual circumstances that he does not face a real chance of serious harm, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker returned to Sri Lanka from Australia.  He would not be imputed with a particular opinion of being opposed to the government and supporting the LTTE.  He would not be regarded as a dissident and imputed with anti-regime political opinions, or of being connected to Tamil groups abroad and his fear of persecution is not well-founded. For the same reasons the Tribunal is satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm as a result of being a failed asylum seeker returned from a western country.  There is no real chance that he would be seriously harmed on account of being a young Tamil asylum seeker/returns who left unlawfully and claimed asylum in Australia.”  
24.	When looking otherwise to the illegal departure of the Applicant from Sri Lanka, the Tribunal acknowledged that the Applicant might be prosecuted under the Immigrant and Emigrants Act 1948 for leaving without a valid travel document, or leaving from a place other than an approved place of departure.  The Tribunal noted that country information indicates initially this provision was not being enforced against failed asylum seekers unless they were regarded as people smugglers, however since November 2012 persons in the Applicant’s situation have been charged with offences under this Act.  Whilst the Immigrants and Emigrants Act 1948 provides for a penalty of imprisonment, the courts have a discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction.
25.	The Tribunal noted that bail was available as a matter of Sri Lankan law to those charged under the relevant provisions of the Immigrants and Emigrants Act 1948; that it is granted relatively quickly and on a person’s own undertaking; and the International Organisation for Migration is present while those procedures are undertaken.  
26.	The Tribunal said at paragraphs 80, 82, 84, 86, 87 and 88 of its Decision Record:-
	“80. Country information indicates that prison conditions in Sri Lanka may not meet international standards.  Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence.  Prison conditions in Sri Lanka have been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhumane or degrading treatment or punishment.”  The US Department of State, citing an assessment by a former UN Special Rapporteur on Torture, also reported that “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which, for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment.
	…
82. The Tribunal refers to the DFAT advice above and is satisfied that the applicant will be held in remand for a short period, from between one day or several days, if he is charged with an offence under the Immigrants and Emigrants Act.  The Tribunal has considered whether a short period of remand gives rise to a real risk he will suffer significant harm.  The ‘real risk’ test imposes the same standard as the ‘real chance’ test for assessing well-founded fear under the Refugees Convention,  that is, a substantial chance, not one that is remote or far-fetched.  
	…
	84. There are reports of mistreatment to both Tamil and Sinhalese prisoners in Sri Lanka’s prison system.  Freedom from Torture reported on a number of claims of torture in 2012 and identified that “those of particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”.  The Tribunal has found, for the reasons set out above, that the Applicant does not have a perceived associated with the LTTE which would cause him to be targeted in the prison system.  The evidence before the Tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been subjected to pain or suffering by an intentionally inflicted act or omission intended to obtain information, a confession, to intimidate or coerce or for any other reason whilst on remand. 
	…
	86. The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer discomfort whilst in prison.  The applicant may be remanded for a short period of time, between one night to several nights.  The Tribunal does not accept in the applicant’s circumstances as an apparently healthy young male that 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 inhumane.  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.
	87. Further, under Australian law, cruel or inhumane treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation.  Mere negligence or lack of resources does not suffice to give rise to cruel or inhumane or degrading treatment or punishment under Australian law.  The country information above indicates that the poor prison conditions in Sri Lanka are due to a lack of resources, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation.  Poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law. 
	88. For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment.  The Tribunal also finds that there is not a real risk the applicant will be arbitrarily killed for the reasons set out above and the death penalty does not arise on the facts.” 
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.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:  

Date:  22 June 2015