Federal Court: In assessing complementary protection claims, the existence of an element of intentionality in the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" requires subjective intention, which is not the case where prison conditions are the result of a lack of resources in a receiving country: SZTAL. Applying SZTAL, FCA had held in AJI16 that "denial or unavailability of healthcare in a receiving country will only engage s 36(2A) where it is in some way personal to the person being returned". Does that mean that "the fact that a visa applicant has a serious health condition cannot be relevant to a claim for complementary protection"? Must condition be expressly articulated?
The questions to the FCA were as follows:
Question 1: Do the decisions in SZTAL and AJI16 lead to the conclusion that "the fact that a visa applicant has a serious health condition cannot be relevant to a claim for complementary protection"?
Question 2: Given that, although the Appellant did not expressly articulate his health condition as an aspect of his protection claim, his health condition was apparent on a fair and proper basis on the materials before the Tribunal, was it a jurisdictional error for the Tribunal to have failed to consider that aspect?
The FCA answered those questions as follows:
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