High Court of Australia: SZTAL V. Minister for Immigration and Border Protection; SZTGM V. Minister for Immigration and Border Protection

By Tully, Stephen | Australian International Law Journal, Annual 2017 | Go to article overview

High Court of Australia: SZTAL V. Minister for Immigration and Border Protection; SZTGM V. Minister for Immigration and Border Protection


Tully, Stephen, Australian International Law Journal


I Introduction

Contemporary international law, including decisions from the International Criminal Tribunal for the former Yugoslavia and the European Court of Human Rights, (1) does not offer a settled meaning of "intention" in relation to torture and cognate concepts. That rather surprising conclusion was made by the High Court of Australia in the recent decision of SZTAL; SZTGM. (1) This casenote first describes the legislative framework under consideration before analysing the judgment and exploring some of its implications.

II Essential Background

This case considered the "complementary protection regime" under the Migration Act 1958 (Cth) (the Act), which seeks to give effect to Australia's non-refoulement obligations under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1989] ATS 21 (the CAT) (in respect of torture) and Article 7 of the International Covenant on Civil and Political Rights [1980] ATS 23 (the ICCPR) (with respect to cruel or inhuman treatment or punishment and degrading treatment or punishment).

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". "Significant harm" includes a non-citizen being subjected to "torture", "cruel or inhuman treatment or punishment" or "degrading treatment or punishment" (s 36(2A)) "[C]ruel or inhuman treatment or punishment" is relevantly defined in s 5(1) as an act or omission by which "severe pain or suffering, whether physical or mental, is intentionally inflicted on a person". This definition is not taken from the ICCPR. Instead, the definition is a partial adaptation of the definition of "torture" in s 5(1), which is derived from the definition of "torture" found in Article 1 of the CAT. (3) "Torture" is relevantly defined as "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. "[Degrading treatment or punishment" is defined under s 5(1) of the Act as an act or omission that causes and is intended to cause extreme humiliation which is unreasonable. Once again, the ICCPR does not expressly require that humiliation be intentionally caused and that treaty has not subsequently been interpreted as importing such a requirement.

In this case, the Refugee Review Tribunal (the tribunal) concluded that, if returned to Sri Lanka, the appellants would be arrested, charged and detained for leaving the country illegally, and would be briefly held in prisons that might not satisfy international standards. However, Sri Lankan officials could not be said to have intended to inflict severe pain or suffering or to cause extreme humiliation. The poor conditions in Sri Lankan prisons were the result of a lack of resources, which its government acknowledged and was taking steps to improve, rather than any particular intention.

The matter wound its way through the judicial hierarchy. (4) Before the High Court the appellants argued that "intention" could include circumstances where there existed knowledge of or a belief in the future consequences of a voluntary act. Such an interpretation was said to be consistent with the definition of "intention" in s 5.2(3) of the Criminal Code 1995 (Cth) (the Code) as well as the Rome Statute of the Intel-national Criminal Court [2002] ATS 1 5 (the Rome Statute).

Ill The Judgment

By a majority of the High Court (Gageler J dissenting), the word "intention" under the Act was to be given its natural and ordinary meaning. …

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