Australia has non-refoulement obligations under article 3 of the Convention against Torture (“CAT”) and article 7 of the International Covenant on Civil and Political Rights (“ICCPR”) – that is, obligations not to return asylum seekers to nations where they will suffer treatment prohibited by these instruments. Before 2012, Australia’s compliance with these obligations took place through the arbitrary, non-reviewable and last-ditch resort of ministerial intervention. Under this process, a person who had been found not to be owed protection under the Refugees Convention could apply to the Minister to exercise their personal discretion under s 417 of the Migration Act to nonetheless grant protection to that person on some other basis, such as other non-refoulement obligations.
In 2012, Australia enacted a regime of ‘complementary protection’ for asylum seekers. ‘Complementary protection’ created a new world of visible goalposts and standardised procedures, ‘align[ing] domestic law with Australia’s international obligations’ (at 689) and rendering individuals who face a real risk of significant harm for reasons other than those traditionally covered by the Refugees Convention eligible for protection visas. Even at the time of its enactment, however, the provisions of the scheme were criticised for departing from the language (and hence scope) of the instruments of the CAT and the ICCPR, upon which they purportedly drew.
SZTAL and SZTGM are citizens of Sri Lanka. They were found not to be eligible for protection visas by the former Refugee Review Tribunal (‘the Tribunal’). The final dismissal of their appeals by the High Court in SZTAL v MIBP  HCA 34 (‘SZTAL’) is an important precedent in the interpretation of Australia’s complementary protection regime. The High Court’s decision is also highly significant for thousands of similarly-placed asylum seekers who fear harm if returned to Sri Lanka because of how they left that country, and for SZTGM himself (SZTAL having left Australia prior to the High Court’s decision).
This post examines the High Court’s decision in SZTAL in terms of Australia’s codification of its international obligations, which departs in certain ways (to the detriment of people seeking protection) from the text of the instruments and from how these instruments have been interpreted in other nations. Like Australia’s extensive use of temporary protection visas, past attempts to create ‘zones of exception’ outside international law, and the 2014 enactment of a ‘statutory’ definition of refugee status (devoid of references to the Refugees Convention), Australia’s complementary protection scheme is an example of ‘Australian exceptionalism’ in terms of its international obligations – or, pejoratively, of Australian parochialism.
Section 36(2)(aa) of the Migration Act provides, relevantly, that a criterion for a protection visa is that ‘there is a real risk that [the applicant] will suffer significant harm’ as a ‘necessary and foreseeable consequence’ of their removal from Australia. Protection on this basis, rather than on the basis of the statutory equivalent to the Refugees Convention, is commonly referred to as ‘complementary protection’ (Edelman J provides an account of the scheme and its justifications in SZTAL at -).
‘Significant harm’ is exhaustively defined in s 36(2A). It includes where the applicant will be subjected to ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. These terms are, in turn, defined in s 5. In that section, torture and cruel or inhuman treatment or punishment are both defined in terms of acts or omissions ‘by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’ (with cruel or inhuman treatment or punishment also including acts or omissions by which ‘pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature’). Degrading treatment or punishment is defined, relevantly, as an act or omission ‘that causes, and is intended to cause, extreme humiliation which is unreasonable’. While the definition of ‘torture’ in s 5 is relevantly identical to that in art 1(1) of the CAT, cruel, inhuman and degrading treatment or punishment are not defined in the ICCPR (or the CAT). This reveals that the requirement of ‘intent’ in the Australian equivalents as novel.
The Appellants: SZTAL and SZTGM
Both SZTAL and SZTGM departed Sri Lanka unlawfully. The Tribunal found that they would be arrested and charged upon return because of their unlawful departure, and that they would likely be held in remand for a short period – ‘one day, several days or possibly two weeks’ (SZTAL at ). While detained, they would be exposed to Sri Lanka’s poor prison conditions – and hence potentially subjected to ‘overcrowding, poor sanitary facilities, limited access to food … and instances of torture, maltreatment and violence’ (SZTAL at ). Despite these findings, the Tribunal found that the Sri Lankan authorities could not be said to have ‘intended’ to inflict severe pain or suffering or extreme humiliation on the appellants, because poor prison conditions in Sri Lanka stem from a lack of resources rather than an intention to inflict significant harm on prisoners (SZTAL at ).
The Arguments, the Majority and the Dissent
In the High Court, counsel for the appellants argued that ‘intent’ for the purposes of s 5 could be satisfied if an act was committed (in this case, the act of detaining the appellants) while knowing that this act would, in the ordinary course of events, inflict pain or suffering or cause extreme humiliation. It was argued that, by extension, the Sri Lankan officials would ‘intend’ to inflict cruel, inhuman or degrading treatment or punishment on SZTAL and SZTGM because of their awareness of conditions in the prisons to which the appellants would be sent upon return (SZTAL at -). (The appellants described this as ‘indirect intention’; Edelman J’s judgment uses the term ‘oblique intention’.) This argument was supported by reference to how the word ‘intention’ has been defined or used in the Commonwealth Criminal Code, the Rome Statute of the International Criminal Court and caselaw from international courts (principally the International Criminal Tribunal for the Former Yugoslavia).
The majority of the High Court (Kiefel CJ and Nettle and Gordon JJ, with Edelman J concurring) disagreed with this interpretation, and with the relevance or significance of the sources cited to support it. They found that there was no international standard as to the meaning of ‘intention’ in this regard. Justice Edelman, in particular, cited scholarship and authority to the effect that ‘indirect’ or ‘oblique’ intention of this kind (turning upon foresight of potential consequences) is not ‘intention’ at all (SZTAL at -). The majority found that the ‘ordinary meaning’ of ‘intention’, as found in Zaburoni v The Queen (2016) 256 CLR 482, applies to s 5 – that is, that ‘a person is ordinarily understood to intend a result by his or her action if the person means to produce that result’ (SZTAL at ). The Court hence endorsed the Tribunal’s interpretation of the relevant statute and dismissed the appeal.
Justice Gageler dissented. Like the majority, he accepted that the word ‘intentionally’ has no settled meaning in international law (SZTAL at ). Nonetheless, he disputed the applicability of the ‘ordinary’ meaning of intention to the present case (at ). He cited in this regard ‘the purpose for which the complementary protection regime was introduced’ – the fulfilment of Australia’s non-refoulement obligations under the ICCPR and the CAT (at ). Given such, Gageler J adopted that 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’ (at ). Justice Gageler noted in support of his ‘broad’ interpretation of ‘intention’ that the adoption of a ‘narrow’ construction of s 5:
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 (at ).
In fact, treating the European Court of Human Rights’ decision in Kalashnikov v Russia (2003) 36 EHRR 34 as applicable to the interpretation of art 7 – as Gageler J did at  – means that this is arguably what happened in SZTAL.
Given that the relevant provisions of the Criminal Code (and their expanded, ‘indirect’ conception of intention) had been enacted for the purpose of giving effect to Australia’s additional obligations under the CAT, Gageler J found that an equivalent interpretation ought to be given to the word ‘intentionally’ as used in s 5 of the Migration Act. His Honour held that to find otherwise, and to find that the same word had been used in different ways across two provisions for giving effect to obligations arising under the same convention, ‘would be strangely inconsistent’ (at ). Justice Gageler applied the same meaning of ‘intentionally’ to s 5’s definitions of cruel, inhuman and degrading treatment or punishment. He concluded (at ) that ‘the requisite intention’ to which s 5 occurs may 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.
Despite their differing conclusions, there is much common ground between the appellants and the respondents, and the majority and the dissent, as to the construction of the Migration Act. It was accepted that where words in a statute have been imported from international law or an international instrument, that meaning in international law may also have been intended to have been imported (SZTAL at , -, citing Koowarta v Bjelke-Petersen (1982) 153 CLR 168). While Gageler J, as noted above, preferred an interpretation which ‘more closely align[ed]’ with the relevant provisions of the CAT and the ICCPR, the majority emphasised the statutory text’s reliance on the concept of ‘intention’ as one without clear, settled parallels in international law – implicitly accepting the premise that such a definition could strongly influence construction had it been found.
The ‘oblique’ or ‘indirect’ intention proposed by the appellants and accepted by Gageler J, while undoubtedly somewhat strained, is not so far-fetched or improbable that it is incapable of application to the text – when read with an eye towards the oft-trumpeted purpose of ensuring compliance with Australia’s obligations under the ICCPR and the CAT. But this is, to some extent, a narrow point – even given its undoubted significance for the large number of asylum seekers who face foreseen but ‘unintended’ harm, inflicted by state authorities through carelessness and neglect but not focused malice, should they return to their countries of origin. That only a strained reading, relying on a somewhat artificial definition of ‘intention’, could reconcile statutory text and international inspiration is fundamentally the product of the Parliament’s conscious departure from the text of the ICCPR, and from how that instrument and its equivalents have been interpreted in other jurisdictions, in defining cruel, inhuman or degrading treatment or punishment so as to incorporate an explicit requirement of intent.
SZTAL is not the cause of Australia’s isolation from international opinion as to the forms of treatment warranting protection. It is merely one of the products of Parliament’s decision to define its obligations in such unique, and narrow, terms as to make it difficult for these provisions to serve their stated purpose: protecting individuals from being sent back to face treatment prohibited by instruments to which Australia is a party.
Douglas McDonald-Norman is research assistant to the Hon Dyson Heydon and a former solicitor with Craddock Murray Neumann Lawyers, Sydney. The views expressed in this piece are those of the author and do not necessarily reflect the views of his employers, past or present.
Suggested citation: Douglas McDonald-Norman ‘SZTAL: International Law and Australian Parochialism’ on AUSPUBLAW (23 October 2017) <https://auspublaw.org/2017/10/sztal-international-law-and-australian-parochialism/>