SZTAL(Appellant) v Minister for Immigration and Border Protection & Anor

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Nettle,Gordon JJ.,Gageler J.,Edelman J.
• Judgment Date: 06 September 2017
• Neutral Citation: [2017] HCA 34
• Docket Number: S272/2016 & S273/2016
• Court: High Court
• Date: 06 September 2017

[2017] HCA 34

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Nettle, Gordon AND Edelman JJ

S272/2016 & S273/2016

SZTAL

Appellant

and

Minister for Immigration and Border Protection & Anor

Respondents

SZTGM

Appellant

and

Minister for Immigration and Border Protection & Anor

Respondents

Representation

S B Lloyd SC with B Mostafa for the appellant in each matter (instructed by Fragomen)

S P Donaghue QC, Solicitor-General of the Commonwealth with M J Smith for the first respondent in each matter (instructed by Australian Government Solicitor)

Submitting appearance for the second respondent in each matter

Migration Act 1958 (Cth), ss 5(1), 36.

Criminal Code (Cth), s 5.2(3).

Migration — Protection visa — Complementary protection — Cruel or inhuman treatment or punishment — Meaning of ‘intentionally inflicted’ — Degrading treatment or punishment — Meaning of ‘intended to cause’ — Where Refugee Review Tribunal found appellants would likely be imprisoned for short period if returned to Sri Lanka — Where prison conditions in Sri Lanka may not meet international standards — Where definition of ‘cruel or inhuman treatment or punishment’ in s 5(1) of Migration Act 1958 (Cth) requires intentional infliction of pain or suffering — Where definition of ‘degrading treatment or punishment’ in s 5(1) of Migration Act requires intention to cause extreme humiliation — Whether Sri Lankan officials intend to inflict pain or suffering or cause extreme humiliation — Whether intention established by knowledge or foresight of pain or suffering or extreme humiliation.

Words and phrases — ‘complementary protection regime’, ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, ‘foresight of result’, ‘intended to cause’, ‘intention’, ‘intentionally inflicted’, ‘oblique intention’.

1 Kiefel CJ, Nettle AND Gordon JJ. The relevant provisions of the ‘complementary protection regime’ of the Migration Act 1958 (Cth) (‘the Act’) and the background to their inclusion in the Act in 2012 are set out in the reasons of Edelman J. The regime gives effect to Australia's non-refoulement obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (‘the CAT’) and the International Covenant on Civil and Political Rights (1966) (‘the ICCPR’). At the same time, it addresses what was a lengthy and time consuming process relating to the grant of a protection visa to a non-citizen who was not a refugee 1.

2 A criterion for the grant of a protection visa under s 36(2)(aa) of the Act is that the applicant is a non-citizen in Australia in respect of whom

‘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’.

3 The relevant circumstances stated in s 36(2A) as constituting ‘significant harm’ are that the non-citizen would be subjected to ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ 2.

4 ‘[C]ruel or inhuman treatment or punishment’ is relevantly defined in s 5(1) of the Act as an act or omission by which ‘severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’ (emphasis added). As Edelman J explains 3, this definition is not taken from the ICCPR. The ICCPR did not provide a definition. It did not expressly require that pain or suffering of the requisite degree be intentionally inflicted; nor has it subsequently been interpreted as importing such a requirement. The definition of ‘cruel or inhuman treatment or punishment’ in s 5(1) is a partial adaptation of the definition of ‘torture’ in s 5(1), which is clearly enough derived from the definition of ‘torture’ in Art 1 of the CAT, which, in turn, speaks of ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’ for certain purposes such as obtaining information or a confession, or intimidating or coercing the person or a third person.

5 Section 5(1) also defines ‘degrading treatment or punishment’ for the purposes of the Act. It means an act or omission that causes and is intended to cause extreme humiliation which is unreasonable. That definition, like the definition of cruel or inhuman treatment or punishment in s 5(1), is not taken from the ICCPR. The ICCPR does not expressly require that humiliation of the requisite degree be intentionally caused; nor has it subsequently been interpreted as importing such a requirement.

The Tribunal's findings

6 The Refugee Review Tribunal (‘the Tribunal’) found that, if the appellants were returned to Sri Lanka, their country of origin, and if they were arrested and charged under the laws of that country because they had left it illegally, they would likely be held in remand for a short period, which may be one day, several days or possibly two weeks. The Tribunal accepted that prison conditions in Sri Lanka are poor and may not meet international standards by reason of matters such as overcrowding, poor sanitary facilities and limited access to food.

7 The issue before the Tribunal, relevant to these appeals, was whether, in sending the appellants to prison, Sri Lankan officials could be said to intend to inflict severe pain or suffering or to intend to cause extreme humiliation. The Tribunal concluded that the element of intention was not satisfied. The country information before it indicated that the conditions in prisons in Sri Lanka are the result of a lack of resources, which the Sri Lankan government acknowledged and is taking steps to improve, rather than an intention to inflict cruel or inhuman treatment or punishment or to cause extreme humiliation.

8 The Federal Circuit Court (Judge Driver) considered 4, correctly in our view, that the Tribunal is to be understood to have concluded that ‘intentionally inflicted’ in the definition of ‘cruel or inhuman treatment or punishment’ connotes the existence of an actual, subjective, intention on the part of a person to bring about suffering by his or her conduct. His Honour considered the same to be true with respect to the words ‘intended to cause’ in the definition of ‘degrading treatment or punishment’. His Honour found no error in that

reasoning, and a majority of a Full Court of the Federal Court (Kenny and Nicholas JJ) 5 agreed. Buchanan J dismissed the appeals on other grounds.

9 Amongst the cases concerning the meaning of ‘intention’ to which Kenny and Nicholas JJ in the Full Court referred was R v Willmot (No 2)6, where Connolly J said 7 that ‘[t]he ordinary and natural meaning of the word “intends” is to mean, to have in mind’. In Zaburoni v The Queen8 a majority of this Court adopted that statement as to the ordinary meaning of ‘intends’ as correct and rejected an argument that the word requires an assessment of a person's foresight of the consequences of his or her action.

Intentionally inflicted or caused

10 The appellants contend that the conditions of ‘intentional infliction of pain or suffering’ or ‘intentionally causing extreme humiliation’ are satisfied if a person does an act knowing that the act will, in the ordinary course of events, inflict pain or suffering, or cause extreme humiliation. On this argument, clearly enough, intention involves an assessment of the foresight of the consequences of an act. No detailed submissions were made by the parties in these appeals about the debate, in England, regarding the concept of ‘oblique intention’ 9. It is therefore unnecessary to enter into that debate for the purposes of these reasons.

11 Applying the appellants' construction to the present cases, it is said that, if officials in Sri Lanka were to cause the appellants to be detained, those officials would intend to inflict pain or suffering or cause extreme humiliation because they must be taken to be aware of the conditions giving rise to such harm in the prisons to which the appellants would be sent.

12 The meaning of ‘intention’ for which the appellants contend is the second, alternative, meaning of ‘intention’ with respect to a result in s 5.2(3) of the

Criminal Code (Cth) 10. This meaning also appears in the definition of ‘intention’ given in the Rome Statute of the International Criminal Court (1998) 11. The first meaning given in s 5.2(3) accords with the ordinary meaning adopted in Zaburoni.

13 The appellants also rely upon certain international law sources, including a decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia 12 and cases which follow it, as supporting the meaning for which they contend.

14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose 13. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense 14. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

15 In Zaburoni, the plurality held that a person is ordinarily understood to intend a result by his or her action if the person means to produce that result. What is involved is the directing of the mind, having a purpose or design. So

understood, intention refers to a person's actual, subjective, intention 15, as the Tribunal and Kenny and Nicholas JJ in...