High Court of Australia affirms narrower interpretation of “intention” to cause harm under complementary protection regime

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

Summary

This case considers the interpretation of the term “intention” under Australia’s complementary protection regime provided for in the Migration Act 1958 (Cth) (Migration Act). This 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) (UNCAT) and the International Covenant on Civil and Political Rights (1966) (ICCPR).

In a 4:1 majority, the Court held that in order for an applicant to be covered by the Migration Act’s complementary protection regime, the element of “intention” requires a person’s actual, subjective intention to bring about pain, suffering or extreme humiliation.

Facts

The appellants, SZTAL and SZTGM, were Sri Lankan nationals who had left Sri Lanka unlawfully and had been refused protection visas by the Minister for Immigration and Border Protection (Minister). The appellants applied to the Refugee Review Tribunal for a review of these decisions. They submitted that if they were returned to Sri Lanka they would suffer “significant harm” – a criterion that, if successfully established, would have permitted the granting of a protection visa. Under the Migration Act, “significant harm” included: (1) “cruel or inhuman treatment or punishment” – defined as an act or omission by which pain or suffering was “intentionally inflicted” on a person”; and (2) “degrading treatment or punishment” – similarly defined as an act or omission that was “intended to cause” extreme humiliation. The appellants submitted they faced “significant harm” if they were returned to Sri Lanka, because they would be arrested by Sri Lankan officials and subjected to extremely poor prison conditions including overcrowding, poor sanitary facilities and limited access to food.

The issue thus turned on whether Sri Lankan officials who intentionally detained the appellants with knowledge of the fact that imprisonment would result in the appellants being subjected to poor prison conditions, could also be said to be intentionally subjecting the appellants to those poor conditions.

The appellants argued that “intention” should be established where a person brings about a result with knowledge or foresight that the result is an inevitable or certain consequence, or occurs in the ordinary course of events, of his or her actions. The Minister argued that “intention” should be defined narrowly and refer only to a person’s actual, subjective intention, such that the result itself must be that person’s purpose in performing the act.

Decision

In a 4:1 majority, the Court dismissed the appeal and held that the term “intention” in the Migration Act’s complementary protection regime required actual, subjective intention on behalf of the Sri Lankan officials to bring about pain, suffering or humiliation. The appellants' submissions that “intention” would be satisfied where a person did an act knowing that the act would, in the ordinary course of events, inflict pain, suffering or humiliation were rejected.

Kiefel CJ, Nettle and Gordon JJ

Kiefel CJ, Nettle and Gordon JJ held that “intention” under the Migration Act required an actual, subjective intention.

Their Honours began by first identifying the ordinary meaning of the term “intention” as defined by the plurality in Zaburoni v The Queen (2016) 256 CLR 482 (Zaburoni). Kiefel CJ, Nettle and Gordon JJ confirmed that the ordinary meaning of “intention” should now be understood as referring to actual, subjective intention (at [15]–[16]) and provided the following definition (at [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.

Turning to the Migration Act’s complementary protection regime, Kiefel CJ, Nettle and Gordon JJ were unable to find any reason as to why there should be a departure from this ordinary meaning. Their Honours agreed with Edelman J’s finding that there was no settled meaning of “intention” at international law that could be imported into the Migration Act. Further, their Honours held that the alternative definitions of “intention” set out in section 5.2(3) of the Criminal Code (Cth) (Criminal Code) should not be transposed into the Migration Act’s complementary protection regime, nor should they form part of the context in which the Migration Act was to be interpreted.

Applied here, the fact that Sri Lankan officials may have had knowledge or foresight that detaining the appellants would result in their being subjected to poor prison conditions was insufficient to draw the inference that the officials therefore intended to inflict pain, suffering or humiliation upon the appellants.

Gageler J

In dissent, Gageler J adopted a broader definition of “intention” in interpreting the Migration Act such that it would be established by either: (1) actual, subjective intention of the result; or (2) where a person has knowledge or foresight that the result will occur in the ordinary course of events of his or her actions.

In doing so, his Honour emphasised the purpose of the Migration Act’s complementary protection regime – to effect Australia’s obligations under article 7 of the ICCPR and article 3 of the UNCAT. Gageler J held that this statutory purpose was best achieved by adopting a broader definition of intention and “for that reason [was] to be preferred to any other interpretation” (at [43]).

Accordingly, his Honour ruled in favour of the appellants and held that “the view of intention endorsed by the plurality in the Full [Federal] Court and now endorsed by the majority in this Court is too narrow” (at [58]).

Edelman J

In a separate judgment, Edelman J affirmed the reasoning of the plurality and held that “intention” under the Migration Act required an actual, subjective intention.

His Honour addressed each of the appellant’s submissions in turn.  First, after a consideration of the relevant authorities, Edelman J held that there was no established meaning of “intention” at international law. Any argument that the Migration Act incorporated such a definition was therefore rejected.

Secondly, his Honour noted that it was common ground between the parties that in the absence of a definition at international law, the definition of “intention” in the Migration Act therefore would take its natural and ordinary meaning. Justice Edelman reviewed a number of authorities and held that actual, subjective intention – as set out in Zaburoni – was the correct statement of the natural and ordinary meaning. Indeed, his Honour noted that Zaburoni was merely “an illustration of what the ordinary and natural meaning of intention has always been” (at [102]). His Honour went on to categorically reject the concept of intention asserted by the appellants (characterised throughout his Honour’s judgment as “oblique intention”) (at [96]–[100]); ultimately concluding that “[i]n ordinary or natural language, oblique intention is not intention at all” (at [103]).

As with the plurality, applying this definition meant that the Sri Lankan officials could not be said to have had the requisite intention required by the Migration Act’s complementary protection regime.

Commentary

This case clarifies the ordinary and natural meaning of the term “intention” under Australian law. A majority of the Court has now affirmed the definition of actual, subjective intention as being the correct one (Kiefel CJ, Nettle and Gordon JJ at [27], Edelman J at [101]–[103]). However, Gageler J’s comments about appropriately applying this ordinary meaning in exercises of statutory interpretation should be noted for future cases (at [38]).

This case is also instructive in affirming that there is still no established meaning of “intention” in international law jurisprudence (Kiefel CJ, Nettle and Gordon JJ at [18], Gageler J at [34], Edelman J at [84]–[89]). Similarly, one should note the various approaches each judge took in comparing the alternative definitions of “intention” under the Migration Act and Criminal Code (Kiefel CJ, Nettle and Gordon JJ at [25], Gageler J at [49], Edelman J at [90]–[91]).

Finally, from a policy perspective, this decision considers the extent to which Australia’s international obligations of non-refoulement are currently being met under the Migration Act’s complementary protection regime. A “significant administrative hole” in the Migration Act’s pre-2012 protection visa process is outlined in Edelman J’s judgment (at [68]–[70]). This deficiency was substantially remedied by the government’s introduction of the Migration Amendment (Complementary Protection) Act 2011 (Cth). However, this decision confirms that this administrative “hole” still exists for those applicants that are in a similar position to the appellants – ie those who would be subjected to unintended cruel, inhuman or degrading treatment or punishment upon return to their home countries.

The full text of the decision can be found here. 

Thomas Wu is a Law Graduate at King & Wood Mallesons.