MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS
Matter No S273/2016
SZTGM APPELLANT
AND
MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS
SZTAL v Minister for Immigration and Border Protection SZTGM v Minister for Immigration and Border Protection
[2017] HCA 34
6 September 2017
S272/2016 & S273/2016
ORDER
Matter No S272/2016
1.Appeal dismissed.
2.The appellant pay the first respondent's costs.
Matter No S273/2016
1.Appeal dismissed.
2.The appellant pay the first respondent's costs.
On appeal from the Federal Court of Australia
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
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
SZTAL v Minister for Immigration and Border Protection SZTGM v Minister for Immigration and Border Protection
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 Act1958 (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".
Migration Act1958 (Cth), ss 5(1), 36. Criminal Code (Cth), s 5.2(3).
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].
[1]Australia, House of Representatives, Parliamentary Debates (Hansard), 24 February 2011 at 1356.
A criterion for the grant of a protection…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Case
[2017] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals by two appellants, SZTAL and another, against decisions of the Minister for Immigration and Border Protection. The dispute concerned the appellants' eligibility for protection visas, specifically whether they would face cruel or inhuman treatment or punishment, or degrading treatment or punishment, if returned to Sri Lanka. The core of the disagreement lay in the interpretation of the terms "intentionally inflicted" and "intended to cause" as defined in section 5(1) of the *Migration Act 1958* (Cth).
The legal issues before the Court were whether the definition of "cruel or inhuman treatment or punishment" in the *Migration Act* requires the intentional infliction of pain or suffering, and whether the definition of "degrading treatment or punishment" requires an intention to cause extreme humiliation. Crucially, the Court had to determine whether the intention of Sri Lankan officials could be established by their knowledge or foresight of the likely pain or suffering, or extreme humiliation, that might result from their actions.
The High Court reasoned that the *Migration Act* should be interpreted using the natural and ordinary meaning of the word "intention." It rejected the submission that this included "oblique intention," finding that in ordinary language, oblique intention is not considered intention at all. Applying this ordinary meaning, the Court held that the relevant question was whether a Sri Lankan official would *mean* to produce the particular result of severe pain or suffering. The Court found that the Full Court in each case had correctly applied this interpretation, leading to the dismissal of the appeals.
Consequently, the High Court dismissed both appeals and ordered that the appellants pay the first respondent's costs.
Orders
Orders of the court
Matter No S272/2016
1. Appeal dismissed.
2. The appellant pay the first respondent's costs.
Matter No S273/2016
1. Appeal dismissed.
2. The appellant pay the first respondent's costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, NETTLE AND GORDON JJ
GAGELER J
EDELMAN J
The appellants' submission that the ordinary or natural sense of intention includes "oblique intention" should not be accepted. In ordinary or natural language, oblique intention is not intention at all. Nor should it attract that label in law. The same ordinary meaning applies in s 5(1) of the Migration Act.The application of the ordinary meaning of intention to these appeals, therefore, would ask whether a person (the relevant Sri Lankan official) will mean to produce a particular result such as the severe pain or suffering which is an element of the definition of cruel or inhuman treatment or punishment. The decisions below Both appeals concerned decisions by the Tribunal to affirm the decisions of delegates of the Minister to refuse protection visas to each appellant under s 65 of the Migration Act.In each case, the appellant submitted to the Tribunal that a protection visa should be granted because there was a real risk that he would suffer significant harm if removed to Sri Lanka. The risk of significant harm was said to arise because of the treatment in Sri Lanka of citizens who departed contrary to Sri Lankan laws. The appellants submitted that this treatment would amount to torture or to "cruel or inhuman treatment or punishment" as those terms are defined in s 5(1) of the Migration Act. In SZTAL's case, the Tribunal accepted that since November 2012 all returnees who left Sri Lanka illegally had been arrested after their return. They were held on remand and then charged with an offence under the Immigrants and Emigrants Act 1945 prior to being bailed. The Tribunal found that SZTAL would be remanded for a short period of time of between one night and several nights, and possibly up to two weeks. As to the treatment during remand, the Tribunal referred to country information which indicated that prison conditions in Sri Lanka did not meet international standards, with concerns of "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". The Tribunal quoted from a former United Nations Special Rapporteur on Torture, cited by the United States Department of State, who reported that "the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources". The Tribunal also referred to a press report which quoted returnees who said that they "slept on the floor in line" with their "bodies pressed up against each other", that they "could not roll over", and that some nights they had to take turns sleeping due to lack of space. The Tribunal described how Sri Lankan authorities have acknowledged the poor prison conditions but said that a lack of space and resources has inhibited reform. The Tribunal cited a call by the President of Sri Lanka for "an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases", as well as plans to construct and expand several prisons in partnership with the International Committee of the Red Cross.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, NETTLE AND GORDON JJ,
GAGELER J,
EDELMAN J
The best construction of the Migration Act is that it uses "intention" in its natural and ordinary sense rather than the unnatural or fictitious sense in which it is used in some earlier authorities. The Full Court in each case was correct to so conclude. The appeals must be dismissed.The 2012 Migration Act amendments relevant to these appealsBackground to the 2012 amendments In the Second Reading Speech to the 2012 amendments, the Minister explained that prior to the amendments there existed "a significant administrative hole in [Australia's] protection visa application process". The "hole" gave rise to a need to "align" Australia's protection visa process with Australia's international obligations of non-refoulement[68]. [68]Australia, House of Representatives, Parliamentary Debates (Hansard), 24 February 2011 at 1356-1357. The administrative "hole" arose in the following way. Prior to the 2012 amendments, an applicant to whom Australia owed complementary protection obligations, such as protection from torture or cruel or inhuman treatment, fell outside the five categories outlined in the Convention Relating to the Status of Refugees (1951) and was therefore ineligible to receive a protection visa.The only way that an applicant could obtain a protection visa was to make an application to the Minister. Since the criteria for the application would not be satisfied, a delegate of the Minister would refuse the application (see s 65(1)(a)(ii) and (b) of the Migration Act). The applicant would then apply for review to the Refugee Review Tribunal, which application would necessarily be dismissed. However, the dismissal of the application for review would enliven the discretion of the Minister, under s 351 or s 417 of the Migration Act, to substitute a decision that was "more favourable" to the applicant if the Minister thought it was in the public interest to do so. The effect of this scheme, in the words used by the Minister in the Second Reading Speech, was that applicants would have to go through a process of "applying, failing, seeking review and failing again, just so they are then able to apply to the minister for personal intervention"[69]. The Minister described this as a "lengthy process" which was "very time consuming and extremely stressful"[70]. The Migration Act was therefore amended "to establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia's arrangements for meeting its non-refoulement obligations and better reflect Australia's longstanding commitment to protecting those at risk of the most serious forms of human rights abuses"[71].[69]Australia, House of Representatives, Parliamentary Debates (Hansard), 24 February 2011 at 1357.[70]Australia, House of Representatives, Parliamentary Debates (Hansard), 24 February 2011 at 1357.[71]Australia, House of Representatives, Migration Amendment (Complementary Protection) Bill 2011, Explanatory Memorandum at 1.