SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (6 September 2017)

Case Summary, Commentary & Extract

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017]
HCA 34 (6 September 2017)

A 4:1 decision of the High Court involving 2 appellants who had applied for protection visas under Section 36(2)(aa) (complimentary protection) of the Migration Act, of which intentionally inflicted significant harm is a fundamental ingredient. The Tribunal had ‘found that, if the appellants were returned to Sri Lanka, … 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’ and accepted that ‘prison conditions in Sri Lanka are poor and may not meet international standards’. The joint judgement held that the ‘Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict … pain or suffering or humiliation’.

Full decision at:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2017/34.html

See below for a summary of the case including key elements of the decision followed by commentary and a detailed extract from the case.


Case Summary – Key elements from the decision

Kiefel CJ, Nettle and Gordon JJ

‘2. A criterion for the grant of a protection visa under s 36(2)(aa) of the [Migration] Act [(the “complimentary protection”)] 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”.

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” …

5. Section 5(1) … defines “degrading treatment or punishment” [as] an act or omission that causes and is intended to cause extreme humiliation which is unreasonable …

6. [The Tribunal] found that, if the appellants were returned to Sri Lanka, … 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 … The Tribunal accepted that prison conditions in Sri Lanka are poor and may not meet international standards …

7. The issue before the Tribunal … 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.

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 …

29. … [T]he Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict … pain or suffering or humiliation’ [(underlining added)].

Edelman J

114. … The appellants could only have established “intention” … if the Tribunal accepted that a relevant Sri Lankan official acted in a way meaning, in the sense of having as an aim or purpose, that “severe pain or suffering … would be inflicted …’  [(underlining added)].

Gageler J dissented.


Commentary from the author

♦ Bearing in mind the underlined passages above, would the outcome have been different had the Tribunal found that those officials positively intended to inflict pain, suffering or humiliation? To what extent should the mental state of an official, considered in isolation, matter? Suppose the official who dealt with SZATL had that intention and the official who dealt with SZTGM did not. Would it not be odd that in this hypothetical scenario SZTAL would be entitled to the complimentary protection whereas SZTGM would not? After all, is it not the case that in both matters both officials would be bound by Sri Lankan law to detain the appellants anyway, regardless of whether or not they positively intended to so?

♦ With respect, should not the issue of causality be relevant to the interpretation of ‘intention’? In other words, should not the Tribunal have asked itself whether the intention of the Sri Lankan officials caused severe pain, suffering or humiliation?


Case Extract – Elements from the full decision

Court: High Court of Australia
Appellants: SZTAL and SZTGM (different matters)
Respondents: Minister For Immigration and Border Protection & Anor
Justices: Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ
Judgement for: the respondents

KIEFEL CJ, NETTLE and GORDON JJ

‘2. A criterion for the grant of a protection visa under s 36(2)(aa) of the [Migration] Act [the complimentary protection] 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”.
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 [in the original]) …
5. Section 5(1) … defines “degrading treatment or punishment” [as] an act or omission that causes and is intended to cause extreme humiliation which is unreasonable …

The Tribunal’s findings

6. [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.

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 …
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) …
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. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. 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 …
17. The context of the Act does not tell against the ordinary meaning of “intention” accepted in Zaburoni. To the contrary, the fact that the element of intention is contained in the definition of “torture”, from which the definitions in question are derived, tends to confirm it. A perpetrator of torture, clearly enough, means to inflict suffering because it is part of his or her ultimate purpose or design to subject the victim to pain and suffering in order, for example, to obtain a confession.
18. It is, of course, possible that words taken from an international treaty may have another, different, meaning in international law. In such a case their importation into an Australian statute may suggest that that meaning was also intended to be imported. But as Edelman J explains, there is no settled meaning of “intentionally” to be derived from any international law sources …
20. Turning to the Criminal Code, the alternative definition of “intention” in s 5.2(3) does not form part of the context in which the complementary protection regime of the Act and the definitions contained in it are to be considered.
21. The Criminal Code definition of “intention” was enacted in 1995 to apply to all Commonwealth offences. An offence of torture was inserted into the Criminal Code in 2010 and that existing definition of intention applied automatically to it. No inference can be drawn about the definition being considered particularly appropriate to acts of torture and therefore to the other conduct which constitutes “significant harm”.
22. The alternative definition of “intention” in s 5.2(3) of the Criminal Code reflects a policy choice concerning criminal responsibility. It appears from the Explanatory Memorandum to the Criminal Code Bill 1994 that those proposing it were well aware that it went against the view that awareness of, or foresight of, result is, at best, evidence of intention …
23. When the complementary protection regime was inserted in the Act in 2012 it would have been a simple enough matter to have adopted the Criminal Code definition of “intention” if it had been thought appropriate to its purposes, but there is no reference to that definition and nothing to suggest that it was considered to be appropriate. Applying the alternative meaning of “intention” would have the consequence that the ambit of the protection afforded by the complementary protection regime of the Act would be wider than the ordinary meaning of that word would allow. It is not immediately obvious that it was thought necessary or desirable to meet Australia’s obligations under the CAT [United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)] or the ICCPR in this way.
26. The reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective, intent. As Zaburoni confirms, a person intends a result when they have the result in question as their purpose.
27. An intention of a person as to a result concerns that person’s actual, subjective, state of mind. For that reason, as the plurality in Zaburoni were at pains to point out, knowledge or foresight of a result is not to be equated with intent. Evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn, but foresight of a result is of evidential significance only. It is not a substitute for the test of whether a person intended the result, which requires that the person meant to produce that particular result and that that was the person’s purpose in doing the act.

Intention applied

28. In the present cases the question for the Tribunal was whether a Sri Lankan official, to whom knowledge of prison conditions can be imputed, could be said to intend to inflict severe pain or suffering on the appellants or to intend to cause them extreme humiliation by sending them to prison. That question was to be answered by the application of the ordinary meaning of “intends”, as the Tribunal concluded.
29. … [T]he Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict the requisite degree of pain or suffering or humiliation.

Orders

30. In each matter the appeal should be dismissed …

31. GAGELER J. A policeman arrests a person at an airport on suspicion of the person having committed a crime. The policeman does so because that is his job. That is where his job ends. The policeman knows that the person will be remanded in custody in a gaol and he knows that the conditions in the gaol will be appalling. There is nothing the policeman can do about that.
32. Does the policeman “intend” to subject the person to the appalling gaol conditions? Not obviously; not obviously not; and no amount of contemplating the abstract meaning of “intend” will supply the answer. The answer depends on why the question is asked.
33. The question is asked here in the implementation of the regime for “complementary protection” introduced into the Migration Act 1958 (Cth) by the Migration Amendment (Complementary Protection) Act 2011 (Cth) …
34. … The word [“intent”] has not been shown to have a settled meaning in international law. But that does not exhaust the relevance of international law to the choice of statutory meaning, and it does not lead to the result that the statutory meaning of the word is left to be determined as an exercise in abstract linguistic analysis.
37. … The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.
41. The concept of intention is … insufficiently precise to allow its content in a particular statutory context always to be determined by reference merely to ordinary or grammatical meaning. That is particularly so where the question is whether a person “intends” a result which the person is aware will occur but which the person does not want to occur, either as an end in itself or as a means of achieving some other end …
42. Whether the concept of intention invoked in a particular statutory context is objective or subjective and, if subjective, whose and what state of mind will suffice to constitute the requisite intention will vary from statute to statute … Intention as to a result will sometimes require the purpose or design of bringing about the result. At other times, intention as to result will sufficiently be found in willingness to act with awareness of the likelihood of the result. Absent express legislative indication as to which of those, or perhaps other, alternatives is applicable in a given context, the choice between them becomes a matter of construction …
43. Critical to making the constructional choice presented by the statutory text in the present context is the purpose for which the complementary protection regime was introduced. That purpose was identified at the time of introduction as being “to allow all claims by visa applicants that may engage Australia’s non-refoulement obligations under the [identified] human rights instruments to be considered under a single protection visa application process, with access to the same transparent, reviewable and procedurally robust decision-making framework … available to applicants who make claims that may engage Australia’s obligations under the Refugees Convention”. The interpretation which would best achieve that identified purpose, and which is for that reason to be preferred to any other interpretation, is the interpretation which would more closely align the statutory criterion for the grant of a protection visa to Australia’s obligations under Art 7 of the ICCPR and Art 3 of the CAT.
45. The word “intentionally … appears in the definition of “torture” in Art 1 of the CAT … The word does not appear in Art 7 of the ICCPR, which states relevantly that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.
46. … Australia’s obligations under the CAT go beyond the obligation imposed by Art 3 not to “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. They include as well the obligation imposed by Art 4 to “ensure that all acts of torture are offences under its criminal law”, irrespective of where those acts might be committed, to which effect is given by the creation of an offence of torture under the Criminal Code (Cth).
47. Whereas the definition of torture within the complementary protection regime effectively adopts the language of the definition in Art 1 of the CAT, in referring to any act “by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”, the Criminal Code operates to translate that language into a physical element and a fault element … The … fault element spelt out in the Criminal Code is that of “intention”. The requisite intention will exist in either of two scenarios. One is where the perpetrator means to engage in the conduct and means to bring about infliction of severe physical or mental pain or suffering on the victim. The other is where the perpetrator means to engage in the conduct and is aware that infliction of severe physical or mental pain or suffering on the victim “will occur in the ordinary course of events”.
49. Whilst it might be open to Parliament to adopt one approach to the definition of torture in Art 1 of the CAT in the legislative implementation of Australia’s obligation under Art 3 of the CAT and another approach to the same definition in the legislative implementation of Australia’s obligation under Art 4 of the CAT, for Parliament actually to do so would be strangely inconsistent. No reason appears for thinking that Parliament would have done so. In particular, no reason appears for attributing to Parliament a legislative intention to take a narrower view of torture for the purpose of protecting the victim than the view of torture it has expressly spelt out for the purpose of punishing the perpetrator.
51. There is another and somewhat broader contextual reason to think that the wider notion of intention is appropriate. It lies in the scope of Art 7 of the ICCPR, to which the definitions of cruel or inhuman treatment or punishment and of degrading treatment or punishment are directed.
52. The proscription in Art 7 of the ICCPR … is mirrored in the proscription in Art 3 of the European Convention on Human Rights … In Kalashnikov v Russia, the European Court of Human Rights concluded that Art 3 had been violated by the gaoling of a prisoner for a long period in overcrowded and unsanitary conditions resulting in an adverse effect on his physical health. In reasoning to that conclusion, the European Court accepted that there had been “no indication that there was a positive intention of humiliating or debasing” the prisoner, saying that “although the question whether the purpose of the treatment was to humiliate or debase [the prisoner] is a factor to be taken into account, the absence of any such purpose cannot exclude a finding of violation of Art 3”.
53. Treating the reasoning in Kalashnikov v Russia as transferable to Art 7 of the ICCPR, that reasoning indicates that a positive intention on the part of the perpetrator to bring about cruel, inhuman or degrading treatment or punishment is not essential to the occurrence of a violation. The reasoning indicates in turn that the introduction of the concept of intention into the statutory definitions of cruel or inhuman treatment or punishment and of degrading treatment or punishment might in some cases produce a result in which a victim of cruel, inhuman or degrading treatment or punishment would be denied complementary protection in circumstances in which Australia’s protection obligation under Art 7 of the ICCPR would be engaged. That the introduction of the concept of intention narrows the scope of complementary protection provides no reason for treating the particular notion of intention that is incorporated into the definitions as a narrow one. To the contrary, it confirms the appropriateness of understanding the sense in which intention has been invoked to be a wide one.
58. … [T]he requisite intention will exist in either of two scenarios: where the perpetrator means to engage in conduct meaning to bring about the result adverse to the victim; and where the perpetrator means to engage in conduct aware that the result adverse to the victim will occur in the ordinary course of events.
59. I would allow each appeal …

EDELMAN K

Introduction

60. … The essential submission of the appellants was that the broader meaning of intention extends beyond desire, aim, or purpose and also “sees intent established once knowledge of the likelihood of the consequences [ie results] of an act reaches a sufficient degree of certainty” [(“oblique intention”)].
62. … The fundamental point of oblique intention is that foresight of a result is not used as a means to infer intention in the sense of an aim or purpose. The point is that voluntary conduct with a foreseen result means that the foreseen result is also intended.
63. The context in which the question is raised in these two appeals concerns whether a Sri Lankan official who intends to detain briefly in custody a returned asylum seeker, and knows of the shocking conditions in custody, therefore intends that the detainee be subjected to those shocking conditions. The two appellants applied for protection visas, alleging that they would suffer (i) torture, (ii) cruel or inhuman treatment or punishment, or (iii) degrading treatment or punishment upon return to Sri Lanka if their applications were denied. Since they had not departed Sri Lanka lawfully they would be exposed to a brief period of detention on remand. They alleged that the infliction of pain and suffering (within the definitions of these three matters in the Migration Act) would arise as a result of prison conditions if they were returned. They submitted that “severe pain or suffering, whether physical or mental” would be “intentionally inflicted” upon them, within the meaning of s 5(1) of the Migration Act.
65. First, the appellants alleged that the Migration Act should be construed consistently with an alleged international meaning of intention which was said to include oblique intention. The appellants submitted that this international meaning was applied in the [CAT]. The appellants’ submission on an international meaning of intention which includes oblique intention placed particular emphasis upon the definition of intention in the Criminal Code, which incorporated oblique intention.
66. The appellants’ first submission should not be accepted. No established, consistent definition of intention emerges from the international jurisprudence which the relevant provisions of the Migration Act could be thought to have adopted when they were inserted. The approach in the Criminal Code, which includes oblique intention, is not a uniform international model. In any event, the Criminal Code’s adoption of oblique intention was made in circumstances of controversy where a choice was taken to depart from the ordinary meaning of intention, which does not include oblique intention. The Migration Act did not include the extended, and controversial, Criminal Code definition.
67. The second reason given by the appellants was that the ordinary meaning of intention includes the concept of oblique intention … [T]he conclusions of the joint judgment [in Zaburoni] about the ordinary meaning of intention should be endorsed … Properly understood, oblique intention is not intention at all …
68. 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 appeals must be dismissed.

Did the Migration Act incorporate an international law meaning of “intention” from the Convention against Torture?

84. … [T]here is no established international law meaning of intention against which the use of that word in the Migration Act should be construed …

The ordinary meaning of intention in language and in law

92. It was common ground that, in the absence of any established meaning of intention in relation to torture in international law jurisprudence, the meaning of intention in s 5(1) of the Migration Act, read in context, must be its natural and ordinary meaning.
96. Despite the support for oblique intention that was identified by the appellants in academic writing and various judgments in this Court the concept should not be accepted as the ordinary meaning of “intention”. For three reasons, the better approach is to recognise that where intention is used in its ordinary sense it bears its ordinary meaning …
97. The first reason why oblique intention should be regarded as invoking a concept different from intention is that the recognition of oblique intention as a form of intention has often proceeded from the false assumption that a person can intend an undesired consequence …
98. The second reason why “oblique intention” should not be treated as intention is that it can lead to an absurd and unnatural use of the word “intention”. For instance, a person who buys a lottery ticket will be aware that success is highly unlikely, or that in the ordinary course of events the person’s ticket will not be successful. But no-one would speak of the person intending to be unsuccessful. Professor Finnis gives an example of a woman who decides to give testimony at her brother’s trial although “acutely conscious of her uncontrollable stutter”. She intends to give evidence but no-one would say that she intends to stutter. She does not choose, or desire, to do so.
99. The third reason for eschewing oblique intention as a type of intention is that despite the authority in this Court which has recognised it, there is also substantial authority which has cast doubt upon whether oblique intention is really intention at all … [P]erhaps the most illuminating passage, Windeyer J said in Vallance v The Queen:
“The probability that harm will result from a man’s acts may be so great, and so apparent, that it compels an inference that he actually intended to do that harm. Nevertheless, intention is a state of mind. The circumstances and probable consequences of a man’s act are no more than evidence of his intention. For this reason this Court has often said that it is misleading to speak of a man being presumed always to intend the natural and probable consequences of his acts …”
103. 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 approach to intention applied by the Tribunal

114. Foresight of consequences, especially with a high degree of perceived likelihood, is a matter from which intention can be inferred. But it is not part of the definition of intention. The appellants could only have established “intention” within par (a) of the definition of “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act if the Tribunal accepted that a relevant Sri Lankan official acted in a way meaning, in the sense of having as an aim or purpose, that “severe pain or suffering, whether physical or mental” would be inflicted. This conclusion was rejected by the Tribunal.

Orders

115. The appeals should be dismissed …’

Sergio Zanotti Stagliorio, Juris Doctor (The University of Sydney)
Registered Migration Agent (MARN 1461003)


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Published on 2 March 2018.