SZTAL v Minister for Immigration and Border Protection [2017] HCA 34: Protection Visas

The High Court has dismissed two appeals from a Federal Court decision, relating to migration today (6 September 2017). The majority of the Court decided that the definition of ‘cruel or inhuman treatment’ or 'degrading treatment' within the meaning of the Migration Act 1958 (Cth) (‘the Act’) must require actual subjective intention by a person to inflict pain or humiliation. The two appeals, from SZTAL v  Minister for Immigration and Border Protection & Anor (S272/2016) and SZTGM v Minister for Immigration and Border Protection & Anor (S275/2016) concerned the requirements for the issue of protection visas under section 36A of the Act.

Background

The appellants, SZTAL and SZTGM (‘the appellants’) had arrived in Australia from Sri Lanka. Their applications for protection visas under the complementary protection regime were refused by the Minister for Immigration and Border Protection. The appellants then applied for judicial review at the Refugee Review Tribunal (‘the Tribunal’). The application for protection visas was made under section 36(2A) of the Act, which stipulated that protection visas were available for non-citizens who will suffer significant harm, and relevant for this case, that they would be subjected to cruel or inhuman treatment or punishment, or degrading treatment or punishment.

Appeals

The appellants’ application for review at the Tribunal concerned the issue of whether the appellants were eligible for protection visas under the complementary protection provisions in the Act. Under that regime, a protection visa may be granted if the appellant could suffer significant harm as a consequence of being removed from Australia. The definition of significant harm in the Act includes cruel or inhuman treatment, which is relevantly defined as an act or omission by why pain is intentionally inflicted upon the appellant. It also includes degrading treatment, defined as an act or omission intended to cause extreme humiliation. The Tribunal found that while the prison conditions in Sri Lanka could cause pain or suffering to be inflicted in that manner on the appellants, the Tribunal’s conclusion was that this was due to a lack of resources rather than a subjective intention by the Sri Lankan government.

The appellants appealed again for judicial review, where by majority the Federal Circuit Court of Australia by majority agreed with the Tribunal’s finding. As Judge Driver noted, the words ‘intentionally inflicted’ and ‘intended to cause’, as set out in the Act, connoted the existence of an actual subjective intention on the part of a person to bring about pain or humiliation.

The High Court’s Decision

The appellants proceeded to appeal to the High Court by special leave. A majority of the High Court held that the expressions and wording of ‘intentionally inflicted’ and ‘intended to cause’ required actual subjective intention to cause pain or humiliation. The Court held that the ordinary meaning of ‘intention’ want to ‘have in mind’, and rejected the argument that the word required assessing a person’s foresight or the consequences of their actions. By majority, the Court also rejected the appellants’ argument, finding that this element could not be satisfied where a person committed the act or omission in the awareness that it would, in the ordinary course of events, inflict pain or humiliation. The Court found that this awareness was not a substitute for the test of whether the person intended the result to occur.

The High Court dismissed both appeals and ordered that the appellants pay the respondent’s costs.

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SZTAL v  Minister for Immigration and Border Protection & Anor; SZTGM v Minister for Immigration and Border Protection & Anor [2017] HCA 34, and judgement summary.

Migration Act 1958 (Cth), as published on TimeBase LawOne.