Must refer to PAM3?

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Federal Court. AAT was bound by Direction 56 (now replaced by 84) to consider PAM3 guidelines in assessing Appellant's protection claims. Can it be said that, because AAT "had not mentioned the Guidelines in the section of its reasons on “Relevant Law” or in the substantive section containing its findings on the complementary protection criterion, the Court should infer that it had not taken them into account"? Did the fact that the AAT had only referred to conditions at a specific prison in the Appellant's home country and did not report on conditions in other prisons suggest AAT did not consider PAM3? Does the “intentional” infliction of harm for the purposes of the complementary protection require “actual, subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”?

The questions to the Federal Court (FCA) were as follows:

Question 1: Can it be said that, "because the Tribunal had not mentioned the Guidelines in the section of its reasons on “Relevant Law” or in the substantive section containing its findings on the complementary protection criterion, the Court should infer that it had not taken them into account"?

Question 2: Did the fact that the AAT had only referred to conditions at a specific prison in the Appellant's home country and did not report on conditions in other prisons suggest that the AAT did not consider PAM3?

Question 3: Does the “intentional” infliction of harm in the definitions of cruel or inhuman treatment or punishment, or degrading treatment or punishment for the purposes of the complementary protection require “actual, subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”?

The FCA answered those questions as follows:

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