FEDERAL COURT OF AUSTRALIA

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY AND NICHOLAS JJ:

1    These three appeals are from three judgments of the Federal Circuit Court of Australia (FCCA). Each judgment dismissed an application for prerogative writs in respect of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal). In each case, the Tribunal affirmed a decision of the respondent Minister’s delegate not to grant a protection visa. In the Tribunal, all three decisions were made by the same Tribunal member; and in the FCCA, all three applications were determined by the same judge.

2    For the reasons stated below, we would dismiss each of the appeals on the basis that none of the grounds of appeal are made out. To explain the appeals and their outcome, it is convenient to begin with the Tribunal decisions.

THE DECISIONS OF THE TRIBUNAL

3    In the Tribunal, each appellant relied on both s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). At the time of the Tribunal’s decisions, s 36 relevantly provided:

(1)    There is a class of visas to be known as protection visas.

...

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because 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; …

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

…

4    The Tribunal accepted that each of the appellants was a Sri Lankan national. In the case of the appellant ‘SZTAL’, the Tribunal stated that “[t]he issues to be decided … [were] whether the applicant will be harmed in Sri Lanka because he attended an anti-government protest, because he is a Tamil or because he left Sri Lanka”: Tribunal reasons, [23]. The Tribunal found (at [46]) that SZTAL “does not face a real chance of serious harm in the reasonably foreseeable future in Sri Lanka because of his political opinion or imputed political opinion or because he attended a protest …”; and that the matters relied on “do not give rise to substantial grounds for believing the applicant will suffer significant harm upon being returned to Sri Lanka”. The Tribunal found (at [56]) that SZTAL “does not face a real chance of serious harm in the reasonably foreseeable future because of his race” and that the matters referred to in this regard “do not give rise to substantial grounds for believing the applicant will suffer significant harm upon being returned to Sri Lanka”. The Tribunal also found (at [85]) that SZTAL “does not face a real chance of serious harm in Sri Lanka as a member of a particular social group of either failed asylum seekers or returnees or persons who left Sri Lanka illegally”. The Tribunal was therefore not satisfied that SZTAL satisfied the criteria in s 36(2)(a) or s 36(2)(aa).

5    Similarly, in the case of the appellants ‘SZTCY’ and ‘SZTGM’, the Tribunal decided that the issues relating exclusively to them did not support their claims for protection visas because they did not satisfy the criteria in 36(2)(a) or s 36(2)(aa). For the same or virtually the same reasons as stated in SZTAL’s case, the Tribunal in the cases of SZTCY and SZTGM also found that neither faced a real chance of serious harm in Sri Lanka as a member of a particular social group of either failed asylum seekers or returnees or persons who left Sri Lanka illegally. Accordingly, the Tribunal affirmed the decisions not to grant a protection visa.

6    Having regard to the grounds of each appeal, it suffices to refer in detail only to the Tribunal’s reasons for rejecting the appellants’ claims that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk of significant harm as persons who left Sri Lanka illegally. In all three cases, the Tribunal referred to the same material and made the same findings in rejecting this claim. It is therefore convenient to refer only to the material and findings in SZTAL’s case.

7    In SZTAL’s case, this particular claim was set out in a letter from his representative to the Tribunal dated 14 February 2013, referring to s 36(2)(aa) of the Migration Act and relevantly stating:

    In 2012, the Sri Lankan authorities launched a crackdown on asylum seekers departing Sri Lanka.

    The Sri Lankan Immigrants and Emigrants Act controlled the departure of citizens from Sri Lanka. Articles 34 and 35 prescribed that no person shall depart Sri Lanka other than from an approved port and in possession of a valid travel document. Violations of these provisions were punishable by mandatory fine and imprisonment. Sri Lankan authorities were actively applying these provisions to failed asylum seekers.

    On 11 September 2012, it was reported that the Sri Lankan Controller of Immigration and Emigration confirmed that those who returned to Sri Lanka after having departed the country illegally were being arrested and detained, although it was not proposed to “increase the existing prison term of three months where they are concerned”. (The letter went on to explore the basis for this “three months” reference.)

    Sri Lanka’s prison system had been condemned by the international community for failing to meet international standards, with a number of sources cited.

    SZTAL departed Sri Lanka from a place other than a designated port, without his Sri Lankan passport, in contravention of Arts 34 and 35 of the Sri Lankan Immigrants and Emigrants Act.

    There were substantial grounds for believing that SZTAL would be subjected to the types of harm described in s 36(2A)(c), (d) and (e) of the Migration Act if he were returned to Sri Lanka, in circumstances where s 36(2B) did not apply.

8    In the case of SZTAL, the Tribunal referred, at a hearing on 21 February 2013, to written country information about Sri Lanka. This information was subsequently provided to the appellant in case he wished to make further submissions. SZTAL’s representatives responded, in a short note, that he relied on his 14 February 2013 submissions. Another hearing was subsequently held, having regard to further country information disclosed in “CIS Request Sri Lanka: Questions arising from recent applications” by the Department of Foreign Affairs and Trade (DFAT) published on 29 November 2012 and “Asylum denied, a penalty waits at home” by the Sydney Morning Herald, published 8 December 2012. SZTAL’s representatives provided the Tribunal with pre-hearing submissions dated 13 May 2013 concerning this material. Under cover of a letter dated 27 May 2013, SZTAL’s representatives provided some further material.

9    As already indicated, in SZTAL’s case, the Tribunal, in a Statement of Decision and Reasons of 30 May 2013, held (at [85], [61]) that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, he faced a real risk of significant harm, as a returnee who might be charged with departing Sri Lanka in contravention of the Sri Lankan Immigrants and Emigrants Act.

10    Before making specific findings, the Tribunal referred to the material that it considered relevant to its decision on this part of SZTAL’s claims, stating that:

[63]    DFAT has advised that, since November 2012, all returnees who left Sri Lanka illegally have been arrested by the [Criminal Investigation Department (CID)] after being processed back into Sri Lanka and charged with an offence under the Immigrants and Emigrants Act 1945 and bailed.

[64]    According to DFAT, persons charged with illegal departure are held in police custody at the CID Airport Office for up to 24 hours during the investigation period. They are then produced before the Magistrate’s Court and released on bail. Persons needing to be held for more than 24 hours, because they arrived on a weekend or public holiday, are transferred to the nearby Negombo Prison Remand Unit     until the Magistrates Court [sic] is in session. All persons are currently being granted bail on their own recognisance with a family member as guarantor. The court may impose specific bail conditions if the person is a repeat offender. There is no payment required for bail. The court may decide not to grant bail if the returnee is considered to be a facilitator or organiser of people smuggling.

…

[67]    There are now about 1,000 cases of illegal departure before the court in Sri Lanka involving returnees and none have yet progressed to a     hearing. Persons intercepted in the act of illegally departing Sri Lanka have been convicted, however, and received a fine. DFAT     has advised that:

Sri Lanka’s Attorney-General’s Department (AGD) has told post that people being intercepted on people smuggling boat ventures in Sri Lanka are considered to be “victims” and are not given a custodial offence but are issued a fine for the offence of departing Sri Lanka illegally under Section 45(1)(a) [sic]. The fine is to act as a deterrent to joining boat ventures in the future. In relation to using fraudulent documents, Sri Lanka’s AGD said the person would be issued with a fine. In Sri Lanka, magistrates are able to use their own discretion in determining the amount of the fine. For example, AGD said the Magistrates Court in Colombo has in-practice been handing out fines between 5,000 and 10,000 LKR for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the Magistrate, who handles a large number of people smuggling cases, has been handing out fines between 10,000 to 100,000 LKR to act us a deterrent. AGD said if a person is considered to be an organiser, the person will be charged and prosecuted for the relevant offence under the I&E Act. Prosecutors would seek a prison sentence and the maximum fine of 200,000 LKR for people smuggling or the facilitation of people smuggling.

[68]    DFAT’s advice is supported by a recent press report about the treatment of 50 returnees from Australia…

[69]    The applicant provided a translation of an article apparently from a publication called Virakesari Friday, 16 November 2012 which he wished the Tribunal to take into account. … This article is     consistent with the country information above that returnees charged with illegal departure are being released on bail on their own recognisance while people suspected of involvement in people smuggling are being treated more severely.

[70]    Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence. Prison conditions in Sri Lanka have been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”. The US Department of State (USDOS), citing an assessment by a former UN Special Rapporteur on Torture, also reported that “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment”.

…

[72]    Sri Lankan authorities have acknowledged the poor prison conditions but lack of space and resources has inhibited reform. President Rajapaksa has “called for an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases”. In 2011, the Sri Lankan government also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.

11    The Tribunal made the following findings:

[74]    The Tribunal places weight on the DFAT advice which is supported by the December 2012 news report and is satisfied that the applicant will be held in remand for a short period, from between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act.

…

[76]    There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. Freedom from Torture reported on a number of claims of torture in 2012 and identified that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”. The applicant has not made any claim of an actual or perceived connection to the LTTE and the Tribunal does not accept he would be targeted in the prison system for this reason. The evidence before the Tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been subjected to pain or suffering by an intentionally    inflicted act or omission intended to obtain information, a confession, to intimidate or coerce or for any other reason whilst on remand.

…

[79]    The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer anxiety and discomfort whilst in prison. The applicant will be remanded for a short period of time, between one night to several nights or possibly up to 2 weeks. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively     short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.

[80]    … The country information above indicates that the poor prison     conditions in Sri Lanka are due to a lack of resources which the government appears to have acknowledged and is taking steps to improve, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law.

[81]    For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. The Tribunal also finds that there is not a real risk the applicant will be arbitrarily killed for the reasons set out above and the death penalty does not arise on the facts.

[82]    The Tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm.

[83]    The country information above indicates that the penalty most likely to be imposed on the applicant is a fine. That is the penalty currently being imposed on persons who have been caught in the act of     illegally departing Sri Lanka and it is the likely penalty according to the lawyer acting for failed asylum seekers. A fine is also consistent with the information from the Sri Lankan AGD above that people caught up in people smuggling boat ventures are considered to be “victims” and are fined as a deterrent to trying to depart again. Based on this information, the Tribunal finds that the likelihood of a prison sentence is remote and not a real risk.

[84]    The fine likely to be imposed on the applicant is between 5,000 and 100,000 Sri Lankan rupees according to the information above. On the current exchange rate, this amounts to between $49AUD and $811AUD. The Tribunal does not accept that the imposition of such a fine on the applicant will give rise to a real risk of significant harm. The Tribunal accepts that fishermen in Udappu are facing economic difficulties. However, the applicant is a young man and capable of undertaking a range of employment to pay the fine likely to be imposed.

[85]    The Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka as a member of a particular social group of either failed asylum seekers or returnees or persons who left     Sri Lanka illegally. The Tribunal also finds that the applicant’s status as a failed asylum seeker or a returnee who may be charged with improperly departing Sri Lanka does [sic: not] give rise to substantial grounds for believing that there is a real risk he will suffer significant harm upon being returned to Sri Lanka.

(Emphasis added.)

12    Each of the appellants applied separately to the FCCA for an order that the respondents show cause why writs of certiorari, mandamus and prohibition should not be granted in exercise of that Court’s jurisdiction under s 476 of the Migration Act in respect of the Tribunal’s decision concerning him. The grounds of application were identical. They challenged only that part of the Tribunal’s decision that the criterion in s 36(2)(aa) was not met, bearing in mind their status as a returnee who may be charged with illegally departing Sri Lanka. The first ground was that the Tribunal had misconstrued or misapplied ss 5 and 36(2A) of the Migration Act, particularly in stating that there was no “intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment” and that “[p]oor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law”. The second ground raised the issue whether the Tribunal had erred in not applying WZAPN v Minister for Immigration and Border Protection [2014] FCA 947: see now Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; 254 CLR 610.

THE JUDGMENT AND REASONS OF THE PRIMARY JUDGE

13    Leaving aside differences that are not presently relevant, the reasons of the primary judge for dismissing the three separate judicial review applications were the same in each case: compare SZTAL v Minister for Immigration & Anor [2015] FCCA 64, SZTGM v Minister for Immigration & Anor [2015] FCCA 87 at [29] and [31] and SZTCY v Minister for Immigration & Anor [2015] FCCA 85 at [12] and [14]. Again, we focus on SZTAL’s case.

14    In the FCCA, the primary judge rejected the submission for SZTAL that the Tribunal had misapplied ss 5 and 36(2A) in asking whether the Sri Lankan government had an intention to inflict cruel, inhuman or degrading treatment or punishment on him: SZTAL v Minister for Immigration & Anor [2015] FCCA 64 at [49]. In so doing his Honour rejected (at [45]) the proposition that the Tribunal erred because it “only considered whether there was an ‘actual, subjective, intent’ to cause harm to the applicant (the harm being exposure to poor prison conditions) and failed to consider whether the Sri Lankan authorities had the necessary intent because they foresaw the consequences of their actions”. His Honour considered that there was “considerable danger” in attempting to translate statements in discussions on criminal intent to ss 5 and 36(2A) of the Migration Act. His Honour stated (at [46]) that:

[T]here is no textual basis for the applicant’s contention that the definitions in s.5(1) import considerations of criminal responsibility rather than operating according to their natural and ordinary meaning. The structure of the relevant definition provisions and in particular the use of the emphatic phrase, “intentionally inflicts”, strongly indicates that there must be an actual, subjective intention to cause harm.

The primary judge also accepted (at [50]) that, on the Tribunal’s factual findings, it was not open to it to conclude that the applicant might suffer “significant harm”, as defined.

15    The primary judge rejected (at [53]-[54]) the applicant’s submission that the Tribunal ought to have considered “whether the gaolers, police officers etc ‘[knew] of the probable consequences of their acts and omissions, or [foresaw] the possibility of those consequences’” and ought to have identified the acts or omissions relevant to the inquiry into intention. His Honour held (at [53]) that “if it was the applicant’s case that the harm he feared met the definition of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ because the individuals involved (police officers, gaolers etc) foresaw the consequences of an identified act or omission (even though such individuals had no desire to inflict suffering upon the applicant), it was for the applicant to present evidence to make good that proposition”. In this case, his Honour noted (at [54]), the applicant “did not make any submissions identifying a particular act or omission; nor did the applicant identify any person who he feared would carry out an act or omission”.

16    The primary judge concluded (at [56]-[57]):

[T]he Tribunal’s reasons indicate that it found that the consequence of being imprisoned in poor prison conditions (being a consequence resulting from the inadequate allocation of infrastructure, services and resources) was not intended by the Sri Lankan authorities, hence the apparent reform attempt by the former President.

Two possibilities flow from this finding: first, either the Tribunal understood that the Sri Lankan government’s inability to manage the prisons adequately constituted the relevant acts or omissions for the purpose of s.5(1), which led to a result that the government and the authorities nevertheless did not intend; or secondly, the Tribunal understood that in the circumstances of a governmental inability to manage the prison system, there was no discernible “act or omission” in respect of which s.5(1) could be engaged. Nothing turns on these two possibilities in circumstances where the Tribunal has found that the poor prison conditions are not intended by the Sri Lankan government, bearing in mind that I am bound by the proposition that what is required is an actual, subjective, intention to cause harm.

17    His Honour dismissed SZTAL’s judicial review application, also noting that there was a typographical error in the Tribunal’s statement of its ultimate conclusion (an observation that is not challenged on appeal).

the grounds of appeal

18    As we have seen, each of the current appellants appealed from the relevant judgment of the FCCA. Unsurprisingly, the two grounds of appeal were the same in each appeal, namely:

1.    The primary judge erred in law in holding that the expression “intentionally inflicted” in the definitions of “torture” and “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act 1958 (Cth) (Act), and the expression “intended to cause” in the definition of “degrading treatment or punishment” in s 5(1) of the Act, require an actor to have “an actual, subjective, intention” to inflict pain or suffering by his or her acts or omissions, being an intention that cannot be proved by the actor’s knowledge of the probable or possible consequences of his or her acts or omissions.

                    Particulars

a.    The primary judge should have held that pain or suffering is “intentionally inflicted” by the act or omission of a person within the meaning of s 5(1) where the person does an act or omission knowing that it is probable or possible that pain or suffering will result.

b.    The primary judge should have held that the second respondent (Tribunal) erred in law in adopting the unqualified proposition that “[p]oor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law”.

c.    The primary judge should have held that, where the Tribunal finds that an applicant may be imprisoned or detained in conditions involving pain or suffering by the act or omission of another person, the Tribunal must ask itself whether the other person will do the act or omission knowing that it is probable or possible that pain or suffering will result.

d.    The primary judge erred in holding (at [48]-[49], [57]) [of SZTAL [2015] FCCA 64)] that the decision of Yates J in SZSPE [2014] FCA 267 foreclosed his Honour’s acceptance of the applicant’s submissions about the proper construction of the expression “intentionally inflicted” in s 5(1); alternatively, SZSPE should not be followed in this case.

e.    The primary judge erred in holding (at [51]) [of SZTAL] that the Full Federal Court’s statements in MZYYL (2012) 207 FCR 211 at [18] (“the criteria and obligations are not defined by reference to a relevant international law”) and [20] (“[i]t is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply”) had not been overtaken by the Full Federal Court’s decision in SZQRB (2013) 210 FCR 505 at [70], [99], [313]; alternatively, the statements in MZYYL are inconsistent with the express references to “Article 7 of the Covenant” in the definitions in s 5(1) of the Act.

2.    The primary judge erred in law in holding that, although the Tribunal was prepared to accept that the applicant was a member of a particular social group of “returnees or persons who left Sri Lanka illegally” against whom s 45 of the Immigrants and Emigrants Act 1945 would be enforced, there was no occasion for the Tribunal to consider whether that law is “appropriate and adapted to achieving some legitimate object of the country”: cf. SZNWC (2010) 190 FCR 23 at [45]-[49].

THE PARTIES’ SUBMISSIONS

Appellants’ submissions

19    The appellants’ submissions were lengthy and detailed. To understand our reasons for dismissing their appeals, it is necessary to set them out with some care.

20    In their written submissions, the appellants advanced “four reasons” in support of the proposition that the primary judge had erred in holding that, as a matter of law, pain or suffering is not “intentionally inflicted” by an act or omission where the actor knows or is aware that pain or suffering will be inflicted by the act or omission in the ordinary course of events. These reasons were:

(1)    The statutory text expressly distinguishes between “purpose” and “intention” in defining the mental element required to be present for protection from significant harm, and the common law has traditionally drawn an emphatic distinction between “intention” and “motive” or “desire” in cases where it is necessary to prove intention, specifically recognising that intention may be shown by knowledge of probable consequences.

(2)    The statutory context is that of the federal Parliament’s response to Australia’s international non-refoulement obligations, and a construction of the statutory text that promotes compliance with those obligations is to be preferred to one that does not.

(3)    Any construction that denies protection to a person who faces significant harm where the harm is not motivated by malignity or enmity necessarily leads to absurd and arbitrary outcomes that are inconsistent with the purpose of the complementary protection provisions.

(4)    Although both constructions are open on the statutory text, the appellants’ construction best promotes compliance with Australia’s international obligations, harmony with other federal laws, and rational outcomes, and is therefore to be preferred.

21    Elaborating on (1) above, the appellants drew attention to the definitions of “torture” and “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act, submitting that “the essential discrimen between the two definitions is ‘purpose’”. Their written submissions argued that “the object of the act or omission, or the motive by which the person is induced to act, is necessarily distinct from the question of intention”; and that “[t]he available meanings of ‘intention’ are shown by the long history of that concept in the common law”, citing a number of cases on intent in the criminal law, most of which were referred to in oral argument and are discussed below, and some cases involving intentional civil wrongs, none of which were addressed in oral argument. In this context, the appellants submitted that the primary judge had erroneously borrowed from the remarks of the Queensland Court of Appeal in R v Ping [2006] 2 Qd R 69, when his Honour used the expression “an actual, subjective, intention”.

22    In relation to (2) and (3) above (see [20]), the appellants submitted that the “protection afforded by Australia’s obligations under the Refugees Convention ... forms part of the backdrop” against which the complementary protection provisions (centred on s 36(2)(aa)) are to be construed. Citing Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 and the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) (Explanatory Memorandum), the appellants submitted that these provisions gave effect to obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT) and the International Covenant on Civil and Political Rights (ICCPR), which complemented the Refugees Convention. The approach taken in the FCCA was, so they contended, inconsistent with the fact that “the drafters of the complementary protection regime intended the regime to reflect the non-derogable nature of those obligations”. Conceding that there was “a tension” between this submission and Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; 207 FCR 211 at [18] and [20], the appellants submitted that MZYYL stood “for no wider proposition than that each case is governed by the applicable provisions of the [Migration] Act” and that “[t]he obiter comments made in MZYYL should not detract from the more complete treatment of the same topic in [Minister for Immigration and Citizenship v] SZQRB [(2013) 210 FCR 505]”. Alternatively, the appellants submitted the inconsistent propositions in MZYYL at [18] and [20] were plainly wrong and should not be followed.

23    In supporting (4) above (see [20]), the appellants noted what they described as “an important parallel ... with respect to the provisions of the Criminal Code (Cth)”, referring to particularly s 274.2 (creating an offence of torture) and s 5.6 (stating the fault element). They argued that “[l]aws of the federal Parliament implementing Australia’s international obligations under the CAT should be read harmoniously” and that the “intention required to be shown for protection from ‘significant harm’ should be no stricter than for the crime of torture under Australian law”.

24    The appellants further submitted that the protective purposes of the complementary protection provisions favoured a generous construction. They argued that the primary judge had adopted an unduly narrow approach that led to irrational outcomes. Citing decisions of the UN Human Rights Committee (HRC) concerning Art 7 of the ICCPR, the European Court of Human Rights (ECHR) concerning Art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) and the Committee against Torture concerning Art 16 of the CAT, the appellants argued that the approach of the primary judge might result in Australia breaching its non-refoulement obligations, even though the complementary protection provisions were intended to provide for protection where those non-refoulement obligations were engaged. Other considerations relied on by the appellants included statements in administrative guidelines.

25    Referring to [80] of the Tribunal’s reasons in SZTAL, the appellants argued that, if their submissions were accepted, then:

The relevant intention had already been established by the finding that the Sri Lankan government is aware of the conditions in which the appellant will be imprisoned. In law, and in particular under the correct construction of the definitions in s 5(1) of the Migration Act, a person intends to cause a result by an act where the act will cause the result in the ordinary course of events, even if the person does not desire the result or would prefer that the result not occur.

26    The appellants contended that the Tribunal should have considered whether the persons who would cause the appellants’ imprisonment had the requisite intention. They also submitted that the Tribunal’s statement (at [80] in SZTAL) that the poor prison conditions did not give rise to significant harm under the Migration Act showed that the Tribunal had misconstrued the relevant definitions in s 5(1) and failed to ask itself the right statutory question.

27    In support of the second ground of the appeals, the appellants argued that, having found that the Sri Lankan law was being applied to a particular social group, namely, “persons who have departed Sri Lanka illegally”, then, following the approach to discrimination against social groups stated in Minister for Immigration and Citizenship v SZNWC [2010] FCAFC 157; 190 FCR 23 at [45]-[49], the Tribunal was required to ask itself whether the law was “appropriate and adapted to achieving some legitimate object” of Sri Lanka. The Tribunal erred in not doing so, as did the primary judge in holding that the question did not arise.

First Respondent’s submissions

28    The first respondent’s submissions may be stated more briefly. The Minister submitted that the primary judge was correct in concluding that the Tribunal’s findings did not support the appellants’ claims. The Minister submitted that the primary judge correctly found that an ordinary reading of the expression “intentionally inflicted” focuses attention on whether the perpetrator subjectively meant to achieve a particular result. Contrary to the appellants’ submission, this was supported by the text and structure of the relevant definitions. In this case, the Tribunal considered that the Sri Lankan government’s conduct was not meant to cause the appellants pain and suffering. Referring to MZYYL 207 FCR 211 at 215 [18], the Minister submitted that the international law materials upon which the appellants relied did not assist their argument. The Minister also submitted that the Minister’s construction did not lead to disconformity between the Migration Act and other federal legislation. Nor did it lead to irrational outcomes and the conclusion that Australia would breach its non-refoulement obligations.

29    The Minister submitted that the appellants’ second ground also disclosed no jurisdictional error because the posited group could only have been defined by the fact that each member was liable to prosecution under the Sri Lankan Immigrants and Emigrants Act. This was not a social group in the relevant sense. The Minister submitted that the present appeals were therefore distinguishable from Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23; alternatively SZNWC was plainly wrong.

The parties’ supplementary submissions

30    During the hearing of the appeals, the parties were given leave to file written submissions on: (1) the operation of Arts 7 and 10 of the ICCPR, with respect to the detention of persons in prison; and (2) the origin of the words “intentionally inflicted” in the definitions of “torture” and “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act.

Articles 7 and 10 of the ICCPR

31    In the resulting supplementary submissions, the appellants contended that persons deprived of their liberty within the meaning of Art 10 of the ICCPR continue to enjoy the right to be free from cruel, inhuman or degrading treatment afforded by Art 7.

32    In the Minister’s supplementary submissions, the Minister clarified his position with respect to the disposition of these appeals, as follows:

In light of the conflict in the authorities concerning Art 7, the Minster does not submit that the risk that the appellant will be exposed to poor prison conditions during a short period on remand in Sri Lanka is necessarily incapable of constituting a breach of Art 7, and thus necessarily falls outside the definition of [cruel or inhuman treatment or punishment] in s 5 of the [Migration] Act irrespective of the meaning of the phrase “intentionally inflicted”. That follows because it is possible as a matter of law that, had the Tribunal made findings about exactly where the appellant would be detained and the conditions he would have experienced then, depending on the content of those findings, Art 7 might have been engaged.

It follows that the Minister does not submit that, even if the appellant’s arguments are accepted, the appeal should nevertheless be dismissed on the basis that it would be futile to remit the matter to the Tribunal by reason of paragraph (c) of the definition of [cruel or inhuman treatment or punishment] (or paragraph (a) of the definition of “degrading treatment or punishment”).

(Underlining original.)

Citing Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (2nd revised ed, NP Engel, Publisher, 2005) at 250 [17], the Minister accepted that generally speaking “[w]hereas Art. 7 primarily is directed at specific, usually violent attacks on personal integrity, Art. 10 relates more to the general state of a detention facility or some other closed institution and to the specific conditions of detention”. Further, citing Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (3rd ed, Oxford University Press, 2013) at 328 [9.252], the Minister accepted that there was a lack of consistency in the HRC jurisprudence concerning the relationship between the two articles. The Minister relied on the statement of these learned authors that:

HRC jurisprudence indicates that inadequate prison conditions, which affect the general prison population, tend to give rise to breaches of article 10 rather than article 7. Article 7 is more likely to be relevant in cases where the complainant has been singled out for especially bad treatment. However, the HRC has unfortunately not been totally clear in defining the line between breaches of article 7 and breaches of article 10.

33    The Minister submitted that the “cases dealing with the reach of Art 7 and its relationship with Art 10 fall broadly into three categories” and that “even assuming that Art 7 can be infringed where a person is exposed to generally poor prison conditions (as the cases in [the] third category … suggest), the circumstances in which such conditions will contravene Art 7 (either alone, or together with Art 10) are not settled”. The Minister identified the three categories as: (1) decisions clearly indicating that Art 10 is aimed at redressing poor conditions, whereas Art 7 is directed to circumstances where conduct or abuse is directed to a particular detainee (citing Boodoo v Trinidad and Tobago, Communication No 721/1996, UN Doc. CCPR/C/74/D/721/1996 (2002) at [6.4]-[6.5], Wilson v Philippines, Communication No 868/1999, UN Doc. CCPR/C/79/D/868/1999 (2003) at [7.3] and Henry v Trinidad and Tobago, Communication No 752/1997, UN Doc. CCPR/C/64/D/752/1997 (1999) at [7.1]); (2) decisions where the HRC concluded that it was unnecessary to consider the applicability of Art 7 in circumstances where a finding has been made that Art 10 has been infringed (citing Teesdale v Trinidad and Tobago, Communication No 677/1996, UN Doc. CCPR/C/74/D/677/1996 (2002) at [9.1], RS v Trinidad and Tobago, Communication No 684/1996, UN Doc. CCPR/C/74/D/684/1996 (2002) at [7.3], Sextus v Trinidad and Tobago, Communication No 818/1998, UN Doc. CCPR/C/72/D/818/1998 (2001) at [7.4] and Mwamba v Zambia, Communication No 1520/2006, UN Doc. CCPR/C/98/D/1520/2006 (2010) at [6.4]); and (3) decisions holding that Art 7 can be infringed where a person has been exposed to generally poor prison conditions, citing Taylor v Jamaica, Communication No 705/1996, UN Doc. CCPR/C/62/D/705/1996 (1998) at [7.4], Shaw v Jamaica, Communication No 704/1996, UN Doc. CCPR/C/62/D/704/1996 (1998) at [7.1], Brown v Jamaica, Communication No 775/1997, UN Doc. CCPR/C/65/D/775/1997 (1999) at [6.13], FKAG v Australia, Communication No 2094/2011, UN Doc. CCPR/C/108/D/2094/2011 (2013) at [9.8] and MMM v Australia, Communication No 2136/2012, UN Doc. CCPR/C/108/D/2136/2012 (2013) at [10.7].

34    Citing cases such as MSS v Belgium and Greece [2011] ECHR 108; 53 EHRR 2 at [219] and Kalashnikov v Russia [2002] ECHR 596; 36 EHRR 34 at [95], the Minister made a further submission that, as matter of principle, exposure to poor prison conditions should be found to constitute a violation of Art 7 only after an analysis of the specific circumstances in a particular case, because it is only following such a specific and individualised analysis that it is possible to assess whether poor prison conditions cause individualised harm of sufficient severity to engage Art 7. Since, however, these appeals do not give rise to the question whether there has been or would be a violation of Art 7, it is unnecessary to discuss this submission further.

Origin of the words “intentionally inflicted”

35    In the remainder of the supplementary submissions, the appellants submitted that the expressions “intentionally inflicted” and “intended to cause” in the relevant definitions in s 5(1) of the Migration Act were traceable to Art 1 of the CAT and the international jurisprudence on Art 7 of the ICCPR and Art 3 of the European Convention. The appellants further submitted that the element of intention was common to all three obligations and was approached in the same way. For the purposes of Art 1 of the CAT, they argued that the requisite intention would be established where there is awareness that pain and suffering will be inflicted in the ordinary course of events. This was said to support their argument on the appeals.

36    On the other hand, the Minister contended that the words “intentionally inflicted” in the definition of torture in s 5(1) had their origins in the CAT, referring to the Explanatory Memorandum at [51]-[52] and the fact that the definitions of “torture” in Art 1(1) of the CAT and in s 5(1) of the Migration Act are relevantly identical. The Minister contended, however, that nothing in the terms of the Migration Act or the extrinsic material supported the appellants’ submission that the words “intentionally inflicted” in the relevant definitions in s 5(1) of the Migration Act had the same meaning as given to Art 3 of the European Convention by the various decisions of the ECHR. The Minister submitted that the European Convention cases (Peers v Greece [2001] ECHR 296 at [74], Kalashnikov v Russia [2002] ECHR 596 at [93]-[94], [101], R(S) v Secretary of State for the Home Department [2011] EWHC 2120 (Admin) at [199] and Grant & Gleaves v Ministry of Justice [2011] EWHC 3379 (QB) at [40]) and the academic commentary recognise that a person can be subjected to “cruel or unusual treatment or punishment”, even though harm is not intentionally inflicted.

consideration

Ground 1

37    The first ground of appeal is relevant to the appellants’ claim to meet the criterion for a protection visa in s 36(2)(aa) of the Migration Act. In order to meet that criterion, the non-citizen appellants had to satisfy the Minister that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm.

38    A non-citizen will suffer the “significant harm” referred to in s 36(2)(aa) in the circumstances set out in s 36(2A): see [3] above. The appellants relied in one way or another on paragraphs (c), (d) and (e) of s 36(2A), the effect of which was that a non-citizen will suffer the significant harm if he or she will be subjected to “torture”, “cruel or inhuman treatment or punishment”, or “degrading treatment or punishment”. These concepts are defined in s 5(1) of the Migration Act, as follows:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    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;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant [i.e. the International Covenant on Civil and Political Rights]; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c);

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

(Emphasis added.)

39    Under Ground 1, the appellants contended that the learned primary judge erred in holding that the expression “intentionally inflicted” in the relevant definitions required an actual subjective intention to inflict or cause the relevant harm. As we have seen, they argued that severe pain or suffering would be “intentionally inflicted” and extreme humiliation, “intended to [be] cause[d]”, by a person who is aware that the act will in the ordinary course of events inflict such pain or suffering, or cause such humiliation. That is, senior counsel for the appellants submitted that it was enough to satisfy the relevant definitions that the perpetrator “just [was] aware of the conditions and that in the ordinary course putting someone in gaol will expose them to those conditions”.

40    The Tribunal in fact said very little about intention. After noting the effect of the relevant definitions in s 5(1), the Tribunal simply stated (at [80]: see [11] above) that “[t]he country information ... indicates that the poor prison conditions in Sri Lanka are due to a lack of resources which the government appears to have acknowledged and is taking steps to improve, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation”; and therefore “[p]oor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law”. It was in fact the primary judge who held that the expression “intentionally inflicted” required an actual subjective intention to cause the relevant harm and held that the Tribunal’s decision was compatible with this construction: see [14] above. The appellants’ submission was that the primary judge was in error on this point and so too was the Tribunal.

41    The appellants accepted that the Tribunal’s findings were inadequate to support the case they made, but submitted that this inadequacy was the product of the Tribunal’s erroneous construction of the expressions “intentionally inflicted” and “intended to cause”. The appellants’ senior counsel, Mr Lloyd SC, submitted that there was in fact material before the Tribunal supportive of each appellant’s claim under s 36(2)(aa) but that material was never addressed because the Tribunal dealt with the case on the basis of its erroneous approach to intention. If the Tribunal’s understanding of intention was wrong, then, so Mr Lloyd argued, there was jurisdictional error; and the FCCA’s judgments and the Tribunal’s decisions should be set aside and the Tribunal required to apply the correct construction of the expressions “intentionally inflicted” and “intentionally caused”.

Purpose, reason and intention

42    One consideration relied on by the appellants can be put to one side. Nothing to our mind turns on the distinction between “purpose” (or “reason”) and “intention” in the definition of “torture” in s 5(1) of the Migration Act and the omission of a reference to “purpose” or “reason” in the definition of “cruel or inhuman treatment or punishment”. Reference to the two definitions shows that they each depend on an identical concept — an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted; but that to constitute “torture” there is an additional element — the act or omission must either occur for a purpose mentioned in paragraphs (a) to (d) or a reason described in paragraph (e) of the definition of “torture”. The Explanatory Memorandum (at [16]) confirms that “torture” and “cruel or unusual treatment or punishment” involve the same concept, with an additional element in the case of “torture”:

This new defined term provides that cruel or inhuman treatment or punishment means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person. This is an act or omission that would normally constitute an act of torture but which is not inflicted for one of the purposes or reasons stipulated under the definition of torture.

(Underlining added.)

43    The stated relationship between the definitions of “torture” and “cruel or inhuman treatment or punishment” indicates that the addition of a purpose or reason requirement in the definition of “torture” does not affect the operation of the requirement that pain or suffering must be “intentionally inflicted” before it can qualify as either “torture” or “cruel or inhuman treatment or punishment”. The additional purposive element confines the scope of the definition of “torture”, but does not change the meaning of the words “intentionally inflicted”.

Intention at common law

44    A substantial part of the appellants’ argument relied on what they submitted was the common law concept of “intention”, which they submitted supported their argument that the expression “intentionally inflicted” in the relevant definitions in s 5(1) of the Migration Act should be construed to require something less than actual subjective intent.

45    There are, as the primary judge noted, difficulties in drawing on cases of criminal responsibility to give meaning to an expression that forms part of a definition in the complementary protection provisions of the Migration Act. Plainly enough, the statutory context and purposes of the law are entirely different.

46    Bearing these difficulties in mind, it is nevertheless instructive to consider the discussions of intent in the criminal law to which the Court was referred.

47    The appellants and the Minister both relied on He Kaw Teh v The Queen (1985) 157 CLR 523. An issue arose in that case as to the mental element required to constitute the offence created by s 233B(1) of the Customs Act 1901 (Cth). Although the present appeals are not concerned, as was the High Court, with whether mens rea is an element in a statutory offence, a part of Brennan J’s analysis in He Kaw Teh may be helpful nonetheless. This is because it assists in explaining the nature of the connection between intention and knowledge in the case of an intention to achieve a particular result. At 569-570, his Honour said:

Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so – to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result. ... If the definition is extended to include a result – causing bodily harm – the statute may prescribe a further mental element: ordinarily a specific or special intent to cause bodily harm.

Judicial examination of the distinction between the various forms of mens rea has not been extensive. … Nonetheless, voluntariness and general intent are distinct mental states. General intent and specific intent are also distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate. Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence. … [S]pecific intent to cause a prescribed result can be, but is not ordinarily, established by knowledge that such a result will probably (or is likely to) occur: Reg. v. Crabbe [(1985) 156 CLR 464]. Just as knowledge of the probable (or likely) results of an act establishes a specific intent to cause those results, so the doing of an act with knowledge that the circumstances are probably such as to make the act criminal establishes a general intent to do an act of that character. That is not to say that some state of mind less than knowledge is sufficient to establish intent. Actual knowledge is required (Giorgianni v. The Queen [(1985) 156 CLR 473, at 504-507]) but what is generally required to be known is at least the likelihood that the prescribed result of an act will occur (specific intent) or at least the likelihood that the existing circumstances are such as to give an act the character of the act involved in the commission of the offence in question (general intent).

(Emphasis added.)

48    The parties accepted that each of the relevant definitions in s 5(1) of the Migration Act contained an element akin to specific intent to cause the prescribed result: in the case of “torture” and “cruel or inhuman treatment or punishment”, there must be an intention that an act or omission inflict severe pain and suffering on the victim and in the case of “degrading treatment or punishment”, there must be an intention that an act or omission cause the victim extreme humiliation. As the above passage indicates, the authorities show that, in the criminal law, specific intent exists where a person takes action meaning to, or desiring or wishing to, bring about a prescribed result. This much is consistent with the Minister’s submissions as to the proper construction of the relevant expressions in the definitions in s 5(1) of the Migration Act.

49    The passage also indicates that more difficult questions arise where a person acts without meaning to bring about the result but with knowledge that such a result will probably occur as a consequence of the action. Some of his Honour’s remarks here might be thought to favour the appellants’ submission. It is significant that Brennan J referred in this connection to R v Crabbe (1985) 156 CLR 464, a case where the Crown challenged a judgment of a Full Court of this Court, quashing the respondent’s conviction for murder on the basis that the trial judge had misdirected the jury on the issue of intent. The respondent had caused the death of several people by intentionally driving a prime mover and trailer through the wall of a motel into a bar. The judge told the jury that it could convict him if it was satisfied beyond reasonable doubt that he “foresaw the possibility” that there might be some people in the bar, but did not take any step that might have been available to him to find out whether there were any people there or not, before he drove the vehicle into the wall. The High Court held that the statement that the jury could convict if it was satisfied beyond reasonable doubt that the accused foresaw the possibility that there might be people in the bar was a material misdirection. The Court held that the accused’s knowledge that his actions might possibly cause death was not enough, observing (at 469):

The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur.

…

It is however unnecessary to enter upon that controversy. If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word “probable” means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm. ...

    (Emphasis added.)

50    It must be emphasised that the analysis in Crabbe proceeded on the basis that where a person “lacks an actual intent” (cf. Crabbe at 468) his or her acting with probable knowledge is “comparable with an intention” (cf. Crabbe at 469). That is, acting with probable knowledge is comparable with, but not the same as, intention. Crabbe is authority for the proposition that the mental element of these crimes will be made out if the accused had the relevant intention or if the accused had knowledge of the relevant probable consequence. This proposition is consistent with cases, such as R v Willmot (No 2) [1985] 2 Qd R 413 at 418; R v McKnoulty (1995) 77 A Crim R 333 at 345-346, where the New South Wales Court of Appeal held that to equate intent with foresight of a probable consequence involved a “serious misdirection”; and R v Moloney [1985] AC 905.

51    In Moloney Lord Bridge emphasised (at 925-926) that the cases where a crime of specific intent was involved:

suggest to me that the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent. …

The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding.

This passage was referred to with approval in R v Willmot (No 2) [1985] 2 Qd R 413, where Connolly J said (418):

The mental element which must be proved when a case of murder goes to the jury under s. 302(1) [of the Queensland Criminal Code] is intention to cause death or to do grievous bodily harm. The ordinary and natural meaning of the word “intends” is to mean, to have in mind. Relevant definitions in The Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purpose or design. The notion of desire is not involved as the learned judge rightly held. A person may do something, fully intending to do it, although he does not in the least desire to do it.

…

It must be accepted that there is a difference in the formulation of murder at common law and in s. 302(1) although there may be little difference in substance. The common law formulation will be found, for Australia, in The Queen v. Crabbe (1985) 59 A.L.J.R. 417[; 156 CLR 464]. It is unlawful homicide with malice aforethought: and malice aforethought means intention to cause death or grievous bodily harm or knowledge that it is probable that death or grievous bodily harm will result. Knowledge of the probability of death or grievous bodily harm is not an element of s. 302(1), although, if established, it leads almost inevitably to the conclusion that death or grievous bodily harm was intended. In Crabbe at p. 419, the former state of mind was described as comparable with the relevant intention. … In Queensland the mental element is intention to cause death or grievous bodily harm. It is what the High Court in Crabbe at p. 419, after stating Stephen’s formulation, referred to as “actual intent”.

In charging the jury elaboration or paraphrase of what is meant by intent should be avoided: Reg. v. Moloney [1985] 2 W.L.R. 648 at p. 664. …

Should there be direct evidence of the accused’s awareness that death or grievous bodily harm was a probable result of his act, they may properly be directed that if they accept that evidence, it is open to them to infer from it that he intended to kill or do grievous bodily harm as the case may be.

    (Emphasis added.)

52    In submissions at the hearing, senior counsel for the appellants also referred the Court to some observations of Dixon CJ in Vallance v The Queen (1961) 108 CLR 56 and McHugh J in Peters v The Queen [1998] HCA 7; 192 CLR 493 at 521-2 [68], in support of their submission that the requisite intention would be established where there was awareness by a relevant actor that pain and suffering will be inflicted in the ordinary course of events. In Peters (involving a charge of conspiracy to defraud the Commonwealth) McHugh J stated (at 521-2 [68]) that if a person does something that is virtually certain to result in another event occurring and knows that that event is certain or virtually certain to occur, then, for legal purposes at least, he or she intends it to occur. His Honour, however, also noted (at ([69]) that it would be wrong to impute a constructive intention to the defendants. In Vallance the question was whether the trial judge misdirected the jury as to intention on the part of an accused charged with unlawful wounding under the Tasmanian Criminal Code, s 13 of which provided that no-one should be criminally responsible for an act unless it was voluntary and intentional. ‘Intentional’ here was said to bear the same meaning as at common law (Vallance 108 CLR 56 at 82 per Windeyer J); and Dixon CJ’s statements (at 61) in Vallance, like McHugh J’s statements in Peters, must be understood in light of R v Crabbe (1985) 156 CLR 464, discussed above, and Zaburoni v The Queen [2016] HCA 12; 90 ALJR 492, referred to below.

53    The preponderance of the authorities to which the Court was referred establishes that intention with respect to result means to have it in mind to achieve the result. Knowledge is relevant as part of the evidence from which an inference of intent may be drawn. Crabbe does not change the ordinary meaning of intention: rather Crabbe recognises that, in a case of murder at common law, knowledge that it is probable that death will result is comparable to intention and is an alternative mental element of the crime. Crabbe does not treat probable knowledge as the same as intention. That this is a correct understanding is emphasised in Zaburoni v The Queen (2016) 90 ALJR 492 at [10]-[18] (Kiefel, Bell and Keane JJ) in discussing the offence created by s 317(b) of the Queensland Criminal Code. In cases where ‘intent’ is an element of an offence, proof of knowledge will be important only because it may provide a basis from which intent may be inferred in circumstances where there is no direct evidence of the existence of the intent: Zaburoni v The Queen at [15] (Kiefel, Bell and Keane JJ); [66]-[68] (Nettle J). Even if resort to the criminal law to aid in the construction of the contested expressions were justified, in our view the appellants are not assisted by the discussion of intent in the authorities to which they referred.

54    Further, it seems to us that the Minister was right to rely on the decision of the Queensland Court of Appeal in R v Ping [2006] 2 Qd R 69, in support of the contention that there was no error in the primary judge’s construction of the contested expressions. R v Ping concerned the interpretation of s 320A of the Criminal Code 1899 (Qld), which provided that a person “who tortures another person commits a crime” and that “torture” meant “the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion”. The trial judge had directed the jury that:

An intention resides in the consciousness of a person. … If it is to be proved … it’s proved by a process of inference or deduction from surrounding circumstances, for instance, what the person did, what a person of ordinary knowledge and common sense would realise, would follow or flow from what they did, what they said about, what they’d done … if they have said anything about it before or after they inflicted it; that sort of thing.

55    The direction was held to be erroneous, because it suggested “that intention to bring about a result is to be presumed where the consequence of an act is foreseeable, and the act is performed”; alternatively, “that intention is to be assessed by an objective evaluation of what is a likely consequence of an act”: R v Ping at 78 [37]. The Court held that the jury should have been told that “the Crown had to prove that the appellant had an actual subjective intention to cause the complainant to suffer severe mental distress and that his conduct was designed to achieve that result”: R v Ping at 78 [38].

56    Chesterman J, with whom Williams and Jerrard JJA agreed, said (at 76 [27], [29]):

If one assumes in the Crown’s favour that it did prove that the appellant’s conduct caused the complainant to suffer a severe psychological disorder the inquiry then turns to whether it proved that the appellant intended to cause, or inflict, that psychological suffering upon the complainant. Torture is, as I mentioned, the intentional infliction of suffering by an act or a series of acts. The words of s. 320A are plain and unambiguous; they offer no scope for misunderstanding. To make out a case of torture the prosecution must prove, beyond reasonable doubt of course, that an accused intended his acts to inflict severe pain and suffering on his victim. It is not enough that such suffering is the consequence of the acts, and that the acts were deliberate. The prosecution must prove an actual, subjective, intention on the part of the accused to bring about the suffering by his conduct. The acts in question must have as their object the infliction of severe suffering; that must be their intended consequence.

…

“Intention” has no specific legal definition. It is to be given its ordinary, everyday, meaning. “Intention” is the act of “determining mentally upon some result”. It is a “purpose or design”. (See the Macquarie Dictionary.) To prove that the appellant [Mr Ping] tortured Mr Loncar the Crown had to prove that his assaults and cruelty were designed to inflict severe psychological harm upon him. It had to prove that the purpose of those assaults was to inflict that harm on the complainant. It had to prove that the appellant consciously decided to beat the complainant in order to cause him severe psychological distress (or suffering). Nothing else would suffice.

57    The appellants criticised R v Ping on a number of bases. First, it was said that the authority of Ping is undermined by the fact that the Court did not refer to the authorities on criminal intent and did not mention s 23 of the Criminal Code Act 1899 (Qld). This criticism is unjustified, because s 23 of the Code contains a limitation on criminal liability and does not, as the appellants’ argument apparently assumes, support the proposition that a person can be liable for an offence provided he or she foresees the possible consequences of an act. Further, as the above discussion indicates, R v Ping is consistent with earlier authorities. There was apparently no need to burden the reasons unnecessarily with authorities to support established principle. Ping has, moreover, been followed by the Queensland Court of Appeal in R v Williamson [2012] QCA 139; 224 A Crim R 160 at [11] and R v HAC [2006] QCA 291 at [10] and is consistent with the recent decision of the High Court in Zaburoni v The Queen 90 ALJR 492.

58    We reject the appellants’ submission that the reasoning in R v Ping set out above was obiter dictum because other conclusions were sufficient to dispose of the appeal. The Court of Appeal expressly said (at 78 [40]), at the conclusion of its discussion of the direction on intention, that “[t]hese considerations are sufficient to explain why the Court allowed the appeal at the conclusion of argument”, and explained “why the Court ordered that a verdict of acquittal be entered rather than a retrial”. In fact, contrary to the appellants’ submission, it is the observations about the Makita rules [cf. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729-742] for expert evidence that were obiter, those observations being given “in the hope that the error … will not be repeated in other cases” (at 79 [41]).

59    It seems to us that R v Ping is persuasive because it concerned the interpretation of relevantly the same concept as the relevant definitions in s 5(1) of the Migration Act (the intentional infliction of severe pain and suffering), albeit in a different context (the prosecution of an accused under a State criminal statute). The Court’s reasons were not only consistent with the authorities but, more particularly, as the Court itself said, reflected the natural and ordinary meaning of the words of the legislation, which are the same in this case. The natural and ordinary meaning of intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct. Cf. Tillman v Attorney-General (NSW) [2007] NSWCA 327; 70 NSWLR 448 at [106] and Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 at [31].

Relevance of international jurisprudence

60    For the reasons we are about to state, we do not accept the appellants’ contention that the jurisprudence concerning Art 7 of the ICCPR or equivalent Art 3 of the European Convention assists in resolving the meaning of the contested expressions in the relevant definitions in s 5(1) of the Migration Act.

61    One may accept that at a general level it is true to say that the complementary protection regime was enacted to give effect to Australia’s obligations under a number of international instruments, including the CAT and the ICCPR. In the present statutory context, this is only one consideration that bears on the question of construction: cf. Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; 248 CLR 619 at [40], citing Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]-[7]. This is because the relevant definitions in s 5(1) and the text of s 36 of the Migration Act show that the Parliament did not intend by these provisions to implement the relevant obligations under the CAT and the ICCPR in their entirety.

62    Having regard to the definitions of “torture”, “cruel or inhuman punishment or treatment” and “degrading treatment or punishment” in s 5(1) of the Migration Act, the statements in the Explanatory Memorandum (at [15], [20], [21], [24], [48] and [51]) that these definitions, though derived from the CAT and the ICCPR, are “exhaustively defined” in s 5(1) confirms this understanding. While the definition of “torture” in Art 1 of the CAT expressly requires that severe pain and suffering be “intentionally inflicted”, this requirement is not a part of the concepts of “cruel, inhuman treatment or degrading treatment or punishment” in Art 7 of the ICCPR. Article 7 does not define these concepts by reference to intention. Nor it seems is intention an element of Art 3 of the European Convention: see Peers v Greece [2001] ECHR 296 at [74]-[75], Kalashnikov v Russia [2002] ECHR 596 at [93]-[94], [101]; R(S) v Secretary of State for the Home Department [2011] EWHC 2120 (Admin) at [199]; and Grant & Gleaves v Ministry of Justice [2011] EWHC 3379 (QB) at [40]). The addition of the element of intention in the relevant definitions in s 5(1) narrows the scope of the equivalent concepts in the Migration Act. As the Minister submitted, it may be inferred from the relevantly narrower definitions in s 5(1) that the complementary protection provisions in s 36 of the Migration Act were intended to give effect to only a subset of Australia’s obligations under the CAT and the ICCPR: cf. Jane McAdam, “Australian Complementary Protection: A Step-By-Step Approach” (2011) 33 Sydney Law Review 687 at 698 - 700; Michelle Foster and Jason Pobjoy, Submissions to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Amendment (Complementary Protection) Bill 2009 (28 September 2009), 20. We note that it does not follow from this that Australia will necessarily breach relevant obligations under the ICCPR or the CAT, because it appears that other domestic legal mechanisms are available to give effect to them.

63    The general principle of construction that courts construe statutory provisions implementing Australia’s obligations under a treaty consistently with that treaty is therefore of limited application in the context of the complementary protection provisions of the Migration Act. In particular, that principle cannot assist in the construction of the intention element in the relevant definitions in s 5(1) since that element does not exist in the ICCPR concepts of “cruel, inhuman or degrading treatment or punishment”: see Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (2nd revised ed, NP Engel, Publisher, 2005) at 161. We are not therefore persuaded that the jurisprudence on Art 7 of the ICCPR or Art 3 of the European Convention is relevant to this issue of construction.

64    Our conclusion in this regard is consistent with Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211, in which a Full Court of this Court considered the standard of protection required by s 36(2B)(b) of the Migration Act. In considering this standard, the Court emphasised (at [36]) that s 36 of the Migration Act must be read as a whole, noting (at [18]) that the complementary protection provisions define the criteria and obligations by reference to the definitions set down in that Act. Hence, as the Court said (at [20]) it was unnecessary “to ask how the CAT or any of the international law [sic] treaties would apply to the circumstances of [the] case”, since they were governed by the applicable provisions of the Migration Act alone: see also Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 at [30]. We reject the appellants’ submission that MZYYL 207 FCR 211 is inconsistent with, or overtaken by, Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, where, at [70] and [99], the Court proffered only a very brief summary of the complementary protection regime, the operation of which was not in issue in that case. We would therefore reject the appellants’ submissions that MZYYL 207 FCR 211 is plainly wrong.

65    The proposition that it is unnecessary to explore the operation of the relevant treaties when considering the operation of the complementary protection regime is subject to the qualification that where any applicable provisions of the complementary protection regime adopt the standards of one of those treaties, then it will be necessary to consider the relevant treaty provisions and any relevant jurisprudence: see, for example, paragraph (e) of the definition of “torture”, paragraphs (c) and (d) of the definition of “cruel or inhuman treatment or punishment”, and paragraphs (a) and (b) of the definition of “degrading treatment or punishment” in s 5(1) of the Migration Act. At the hearing of the appeals, counsel for both parties was asked whether paragraph (c) of the definition of “cruel or inhuman treatment or punishment” and/or paragraph (a) of the definition of “degrading treatment or punishment” might apply in the circumstances of these appeals. These paragraphs circumscribe the acts and omissions that may constitute “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”, in that an act or omission that otherwise constitutes “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” will not do so because that act or omission is not inconsistent with Art 7 of the ICCPR.

66    As the Minister’s supplementary submissions indicate, there is a lack of clarity in the authorities concerning the interaction of Art 7 and Art 10 of the ICCPR in the context of poor prison conditions. For present purposes, we accept that the relevant authorities fall broadly into the three categories identified by the Minister: see [33] above. These authorities and the scholarly commentary to which the Minister referred indicate that the circumstances in which exposure to poor prison conditions will infringe Art 7 (either alone or with Art 10) are not settled. The Minister expressly did not submit that the risk that the appellants will be exposed to poor prison conditions in the circumstances found by the Tribunal was necessarily incapable of constituting a breach of Art 7 of the ICCPR. The basis for the Minister’s position is clear and it is unnecessary to explore the issue further in these appeals.

Other considerations

67    We reject the appellants’ submission that the relevant definitions in s 5(1), focussing particularly of the definition of “torture”, should be construed harmoniously with the offence of torture in s 274.2 of the Commonwealth Criminal Code (Schedule to the Criminal Code Act 1995 (Cth)). The legislature has clearly taken a different approach to the criminal offence of torture to the concept of “torture” in the complementary protection regime. The considerations affecting the creation of a criminal offence aimed at the alleged perpetrators are likely to differ to an extent from the considerations that govern the definition of “torture” in a complementary protection regime. These are reflected in the obvious material textual differences. The offence in s 274.2 of the Code does not specify a fault element for the physical element of the offence – conduct that inflicts severe pain or suffering. Since that physical element is described by result, then s 5.6 of the Code provides that the fault element is that of recklessness. Clearly, though, the Code recognises that the concepts “recklessness” and “intention” are different: see s 5.6. It is not permissible under the Code to treat the two mental states as the same. Having regard to this and to the entirely different contexts in which the concept of “torture” is relevant under the Code and the Migration Act, there is simply no basis to equate the expression “intentionally inflict” in the relevant definitions in s 5(1) of the Migration Act with the concept of recklessness applicable in the case of an offence under s 274.2 of the Commonwealth Criminal Code.

68    Further, we are not persuaded that if the expressions “intentionally inflicted” or “intended to cause” are construed to require actual subjective intention, as opposed to the lesser standard for which the appellants advocate, then the outcomes will include irrational outcomes of a kind not intended by the Parliament. Nor are we persuaded by any other consideration urged on the Court by the appellants that the primary judge relevantly erred in construing these expressions.

69    Accordingly Ground 1 of the appeal is not made out.

Ground 2

70    The appellants’ argument in support of the second ground depended on the proposition that the group of “persons who left Sri Lanka illegally” was capable of constituting a particular social group. The Tribunal had, so they submitted, determined this in their favour. Although the Minister noted that the appellants had taken a different point before the primary judge, the Minister accepted that the Court should deal with the point as it was argued before it on the appeals.

71    A social group cannot be defined by reference to a fear of persecution based on the non-discriminatory enforcement of a State’s generally applicable domestic legislation: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. Thus in that case, Dawson J said (at 243) that:

[A] law or practice which persecuted persons who committed a contempt of court or broke traffic laws would not be one that persecuted persons by reason of their membership of a particular social group. Where a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms.

See also Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at 301 [21].

72    McHugh J also held in Applicant A that persecutory conduct could not of itself define a particular social group, saying (at 263) that:

[P]ersons who seek to fall within the definition of "refugee" in Art 1A(2) of the Convention must demonstrate that the form of persecution that they fear is not a defining characteristic of the “particular social group” of which they claim membership. If it were otherwise, Art 1A(2) would be rendered illogical and nonsensical. It would mean that persons who had a well-founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution.

    (Citation omitted.)

73    The appellants’ senior counsel sought to distinguish Applicant A 190 CLR 225 by submitting that in the present appeal the appellants did not fear the penalty for illegal departure under the Sri Lankan legislation, but they feared the processes relating to the illegal departure – namely, the prison conditions when in remand. Also, the appellants’ senior counsel posited that persons who sought to leave Sri Lanka illegally might have other things in common and be perceived as part of a group apart from the fear of being charged. The reasons of the Tribunal, however, did not provide any support for this latter contention.

74    In the present context, a group described as “persons who left Sri Lanka illegally” is relevant only because the members of the group are liable to prosecution under Sri Lanka’s Immigrants and Emigrants Act and therefore at risk of being held in prison on remand. The primary judge rejected (at [65]) a related submission, on the basis that “given the Tribunal’s finding that the Immigrants and Emigrants Act is applied to all persons who depart Sri Lanka illegally, it cannot be said that the ‘essential and significant reason’ for the enforcement of the statute against the applicant would be a Convention reason”.

75    The appellants’ attempt to distinguish between fear of the penalty and fear of related processes does not remove the difficulties identified by Dawson and McHugh JJ in Applicant A 190 CLR 225. The Tribunal’s finding (at [73]) that the Sri Lankan legislation “is being applied to all persons who have departed Sri Lanka illegally ... regardless of ethnicity” meant that the group of “persons who left Sri Lanka illegally” whose fear arose only from processes related to the enforcement of that legislation was not capable of constituting a particular social group. The Tribunal did not find that the supposed social group had any existence independent of the fear of harm, and nothing in [85] and [86] of the Tribunal’s reasons provides any support for the appellants’ contention. If the appellants feared the processes related to enforcement of the law, they did so because of the non-discriminatory enforcement of generally applicable legislation; and this fear of persecution did not arise from a common characteristic having an existence independent of the enforcement of the law.

76    In these circumstances, Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 is clearly distinguishable since the Tribunal’s finding in that case that there was a particular social group comprised of “Bangladeshi ship deserters” was defined by more than the fact that each member had committed the offence of ship desertion.

77    There is no basis shown for the appellants’ contention that the Tribunal relevantly erred because it did not consider whether the Sri Lankan Immigrants and Emigrants Act was “appropriate and adapted to achieving some legitimate object” of Sri Lanka (assuming, without deciding, that such a duty might arise as indicated in SZNWC).

78    Accordingly, Ground 2 is not made out.

DISPOSITION

79    For the reasons set out above, no jurisdictional error has been demonstrated in the Tribunal’s decision and no relevant error was demonstrated in the judgment of the primary judge.

80    As indicated at [41] above, the appellants accepted that the Tribunal’s findings were inadequate to support the case they sought to make and submitted that this inadequacy was a result of the Tribunal’s erroneous construction of the expressions “intentionally inflicted” and “intended to cause”. We reject the submission that the Tribunal erred in this way, for the reasons we have stated. Bearing in mind that the Tribunal found in substance that, on return to Sri Lanka, the appellants will be held in remand for a short period, from between one day to several days, in the course of which they might suffer anxiety and discomfort (see [11] above) the appellants were plainly correct to acknowledge that, if they failed to show jurisdictional error in the Tribunal’s decision, there was no sufficient basis for their claim under s 36(2)(aa) of the Migration Act.

81    The appeals should be dismissed, with costs.

Associate:

Dated:    20 May 2016

REASONS FOR JUDGMENT

BUCHANAN J:

82    These three appeals all concern Sri Lankan citizens who were refused protection visas by delegates of the first respondent (“the Minister”), and then by the Refugee Review Tribunal (“the RRT”) established under the Migration Act 1958 (Cth) (“the Act”), whose statutory functions are now performed by the second respondent.

83    Broadly speaking, s 36 of the Act provides for the grant of a protection visa in two circumstances, which are identified in s 36(2)(a) and s 36(2)(aa). They provide as follows:

36    Protection visas

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because 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; …

84    In each case, it was found by the RRT that the appellant was not a person in respect of whom Australia has protection obligations under the Refugees Convention, i.e. under s 36(2)(a). The present appeals do not put those conclusions in issue.

85    The appeals do concern findings by the RRT that none of the appellants satisfied the requirements of s 36(2)(aa) of the Act.

86    The term “significant harm” which is used in s 36(2)(aa) is given content by s 36(2A):

36    Protection visas

…

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(Emphasis in original.)

87    In the present appeals, the appellants rely on the meanings given to the term “significant harm” by s 36(2A)(c), (d) and (e). Those provisions are further informed by the following definitions in s 5 of the Act:

5    Interpretation

(1)    In this Act, unless the contrary intention appears:

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    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;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

(Emphasis in original.)

88    The matters relied upon by each of the appellants to argue that they met the requirements of s 36(2)(aa) of the Act are that, upon their return to Sri Lanka, as persons who have been refused protection visas, they will (under Sri Lankan law and by Sri Lankan authorities) be arrested and then either “tortured”, or otherwise subjected to significant harm in the form of cruel or inhuman treatment or punishment, or in the form of degrading treatment or punishment, because they will be put in a Sri Lankan prison. Those consequences will follow, it was argued, from the application and operation of the Immigrants and Emigrants Act of Sri Lanka, which makes illegal departure from Sri Lanka an offence.

89    In substance, therefore, the appellants’ argument was that, although they did not face a real chance of serious harm in Sri Lanka in the reasonably foreseeable future upon any ground referred to in the Refugees Convention (i.e. their claims to that effect having been rejected), nevertheless, they were entitled to protection by Australia against the consequence of them having left Sri Lanka illegally.

90    The RRT seemed to have been prepared to assume that each of the appellants left Sri Lanka illegally. However, the RRT found that none of the appellants was at any real risk of being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, for that reason or by reason of being a failed asylum seeker.

91    The appeals were argued on the basis that factual differences amongst the appellants were immaterial. Hereafter, it will be convenient to refer to the circumstances of SZTAL to explain the findings and reasoning of the RRT, and the legal challenges made to its decisions.

92    The RRT set out its findings and reasons about the matters central to SZTAL’s appeal as follows:

Illegal departure

62.    Illegal departure from Sri Lanka is an offence under s.45 of the Immigrants and Emigrants Act 1945 carrying a penalty of a term of imprisonment of between 1 and 5 years and a fine of between 50,000 rupees and 200,000 rupees. This provision, the information regarding the treatment of returnees who left Sri Lanka illegally set out below and the implications of the information were discussed with the applicant.

63.    DFAT has advised that, since November 2012, all returnees who left Sri Lanka illegally have been arrested by the CID after being processed back into Sri Lanka and charged with an offence under the Immigrants and Emigrants Act 1945 and bailed.

64.    According to DFAT, persons charged with illegal departure are held in police custody at the CID Airport Office for up to 24 hours during the investigation period. They are then produced before the Magistrate’s Court and released on bail. Persons needing to be held for more than 24 hours, because they arrived on a weekend or public holiday, are transferred to the nearby Negombo Prison Remand Unit until the Magistrates Court is in session. All persons are currently being granted bail on their own recognisance with a family member as guarantor. The court may impose specific bail conditions if the person is a repeat offender. There is no payment required for bail. The court may decide not to grant bail if the returnee is considered to be a facilitator or organiser of people smuggling.

65.    DFAT has indicated above that returnees who departed Sri Lanka illegally are being charged regardless of ethnicity, as are persons intercepted attempting to leave Sri Lanka illegally and that the law is being enforced to deter future boat ventures. Other sources also indicate that both Tamil and Sinhala returnees are being charged.

66.    Whilst the Immigrants and Emigrants Act 1945 provides for a penalty of imprisonment, the courts have discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction.

67.    There are now about 1,000 cases of illegal departure before the court in Sri Lanka involving returnees and none have yet progressed to a hearing. Persons intercepted in the act of illegally departing Sri Lanka have been convicted, however, and received a fine. DFAT has advised that:

Sri Lanka’s Attorney-General’s Department (AGD) has told post that people being intercepted on people smuggling boat ventures in Sri Lanka are considered to be “victims” and are not given a custodial offence but are issued a fine for the offence of departing Sri Lanka illegally under Section 45(1)(a) [sic]. The fine is to act as a deterrent to joining boat ventures in the future. In relation to using fraudulent documents, Sri Lanka’s AGD said the person would be issued with a fine. In Sri Lanka, magistrates are able to use their own discretion in determining the amount of the fine. For example, AGD said the Magistrates Court in Colombo has in-practice been handing out fines between 5,000 and 10,000 LKR for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the Magistrate, who handles a large number of people smuggling cases, has been handing out fines between 10,000 to 100,000 LKR to act as a deterrent. AGD said if a person is considered to be an organiser, the person will be charged and prosecuted for the relevant offence under the I&E Act. Prosecutors would seek a prison sentence and the maximum fine of 200,000 LKR for people smuggling or the facilitation of people smuggling.

68.    DFAT’s advice is supported by a recent press report about the treatment of 50 returnees from Australia. The report states that:

From Darwin, the group was put on board a charter flight to Colombo, touching down around 3.30pm...They were interviewed into the evening and overnight by uniformed Sri Lankan police and the criminal investigation unit, then taken by bus on Saturday, to Negombo Prison....

On Tuesday, after about 4 days in prison, the 50 men were led the short walk from the prison to the large but consistently overwhelmed, district court across the road.

Above the gaggle of thieves and drunks and defaulters, the court has found its business dominated by immigration cases in recent months. It is dealing with hundreds of cases of people charged with illegally leaving Sri Lanka either caught trying to flee the country by boat, or those who made it to Australia, only to be sent back...

People caught leaving Sri Lanka, and those returned by Australia, face the same charge.

But asylum seekers intercepted by Sri Lankan authorities face far harsher treatment, Fairfax is told by Joseph Jayasinghe, a lawyer who regularly represents failed asylum seekers.

Out of the glare of international attention, they can spend months in prison, fronting court once a fortnight to be perfunctorily remanded....

Those returned by charter flight - judged “not to have engaged Australia’s international obligations” - are released sooner, depending on their history and the interest Sri Lanka’s authorities have in them.

Some spend up to a fortnight in jail, while others are released within days. The returned 50 spent three nights in prison before they were bailed, each to reappear before the same court in February or March.

If found guilty of leaving the country improperly, they will likely be fined between 50,000 and 100,000 rupees ($880 and $1,760), Jayasinghe said.

69.    The applicant provided a translation of an article apparently from a publication called Virakesari Friday, 16 November 2012 which he wished the Tribunal to take into account. The article refers to 46 people who attempted to get to Australia illegally being returned to Sri Lanka, being remanded and released on bail of 500,000 rupees. Four people who helped drive the boat remained in custody. This article is consistent with the country information above that returnees charged with illegal departure are being released on bail on their own recognisance while people suspected of involvement in people smuggling are being treated more severely.

70.    Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence. Prison conditions in Sri Lanka have been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”. The US Department of State (USDOS), citing an assessment by a former UN Special Rapporteur on Torture, also reported that “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment”.

71.    The press report referred to above also quotes returnees as stating that:

“The put us in with the murderers and the drug addicts”...“We slept on the floor in line, our bodies pressed up against each other. We could not roll over.”

“Some nights, we had to take turns sleeping because [there was] no space. One would sit up while the other slept on the ground. If you had money, you could pay a bribe to get more space.”

72.    Sri Lankan authorities have acknowledged the poor prison conditions but lack of space and resources has inhibited reform. President Rajapaksa has “called for an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases”. In 2011, the Sri Lankan government also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.

…

Significant harm

74.    The Tribunal places weight on the DFAT advice which is supported by the December 2012 news report and is satisfied that the applicant will be held in remand for a short period, from between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act. The Tribunal has considered whether a short period of remand gives rise to a real risk he will suffer significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test for assessing well-founded fear under the Refugees Convention, that is, a substantial chance, not one that is remote or far-fetched.

75.    Torture is defined in the Act an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on a person to obtain information or a confession, to punish to intimidate or coerce or for a discriminatory reason.

76.    There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. Freedom from Torture reported on a number of claims of torture in 2012 and identified that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”. The applicant has not made any claim of an actual or perceived connection to the LTTE and the Tribunal does not accept he would be targeted in the prison system for this reason. The evidence before the Tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been subjected to pain or suffering by an intentionally inflicted act or omission intended to obtain information, a confession, to intimidate or coerce or for any other reason whilst on remand.

77.    Cruel or inhuman treatment or punishment is defined in the Act as an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on a person; or an act or omission by which physical or mental pain or suffering is intentionally inflicted on a person so long as the act or omission could reasonably be regarded as cruel or inhuman.

78.    Degrading treatment or punishment is defined in the Act as an act or omission that causes and is intended to cause extreme humiliation which is unreasonable.

79.    The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer anxiety and discomfort whilst in prison. The applicant will be remanded for a short period of time, between one night to several nights or possibly up to 2 weeks. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.

80.    Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law The country information above indicates that the poor prison conditions in Sri Lanka are due to a lack of resources which the government appears to have acknowledged and is taking steps to improve, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law.

81.    For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. The Tribunal also finds that there is not a real risk the applicant will be arbitrarily killed for the reasons set out above. and the death penalty does not arise on the facts.

82.    The Tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm.

83.    The country information above indicates that the penalty most likely to be imposed on the applicant is a fine. That is the penalty currently being imposed on persons who have been caught in the act of illegally departing Sri Lanka and it is the likely penalty according to the lawyer acting for failed asylum seekers. A fine is also consistent with the information from the Sri Lankan AGD above that people caught up in people smuggling boat ventures are considered to be “victims” and are fined as a deterrent to trying to depart again. Based on this information, the Tribunal finds that the likelihood of a prison sentence is remote and not a real risk.

84.    The fine likely to be imposed on the applicant is between 5,000 and 100,000 Sri Lankan rupees according to the information above. On the current exchange rate, this amounts to between $40AUD and $811AUD. The Tribunal does not accept that the imposition of such a fine on the applicant will give rise to a real risk of significant harm. The Tribunal accepts that fishermen in Udappu are facing economic difficulties. However, the applicant is a young man and capable of undertaking a range of employment to pay the fine likely to be imposed.

85.    The Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka as a member of a particular social group of either failed asylum seekers or returnees or persons who left Sri Lanka illegally. The Tribunal also finds that the applicant’s status as a failed asylum seeker or a returnee who may be charged with improperly departing Sri Lanka does [sic: not] give rise to substantial grounds for believing that there is a real risk he will suffer significant harm upon being returned to Sri Lanka.

(Footnotes omitted.)

93    Important findings made by the RRT, which are relevant to the present appeals, include the following:

    The likelihood of a prison sentence is remote and not a real risk [83].

    If charged with illegal departure, the appellants will be held in police custody at the airport for up to 24 hours, then produced before the Magistrates Court and released on bail, unless they arrived on a weekend or public holiday. In that case, they would be transferred to Negombo Prison Remand Unit until the Magistrates Court is in session [64].

    No payment for bail would be required [64].

    If charged with an offence, therefore, the appellants would be held only for a short period – between one day to several days (or nights) [74], [79]. [The reference in [79] to “possibly up to 2 weeks” is clearly a reference to the press report extracted at [68] (“up to a fortnight in jail”) which, in any event, did not refer even to any of the group of 50 to which that report related].

    If convicted, the most likely penalty was a fine (equivalent to between AUD$40 and AUD$811) [84].

94    Although the RRT referred more generally (at [70] and [76]) to prison conditions in Sri Lanka, to reports of instances of torture and to reports of mistreatment, those references do not support any argument that the RRT contemplated as likely that any of the appellants were, or would be, in such a situation. The contrary is the case.

95    The RRT’s findings of fact were, in my respectful view, fatal in the present cases to any reliance on s 36(2)(aa) of the Act. Unless the RRT made a jurisdictional error in the way it approached its task then its decision about the merits of the visa applications was shielded from judicial review by s 474 of the Act.

96    Each of the decisions of the RRT in relation to the present appellants was challenged in the Federal Circuit Court of Australia (“the FCCA”) upon the ground that jurisdictional error had occurred. Each challenge was dismissed by the FCCA (SZTAL v Minister for Immigration & Anor [2015] FCCA 64; SZTGM v Minister for Immigration & Anor [2015] FCCA 87; SZTCY v Minister for Immigration & Anor [2015] FCCA 85).

97    The arguments on the present appeals are in substance those rejected by the FCCA. Those arguments assert that the RRT misunderstood the requirements of s 36(2)(aa) of the Act. In particular, the appellants argued that those elements of significant harm referred to in s 36(2A)(c), (d) and (e), (which are imported through the definitions of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5 of the Act) which require intentional conduct (e.g. intentionally inflicted/intended to cause) may be satisfied by knowledge of probable consequences. In my view, the general premise on which this contention depends is unsound (see Zaburoni v The Queen [2016] HCA 12; (2016) 90 ALJR 492 (“Zaburoni”) at [10], [14], [43], [55]).

98    In any event, in my respectful view, any argument of this kind should only be addressed in a case where the factual circumstances allow it to be decided by reference to concrete matters rather than abstract notions. In my view, this argument does not arise for consideration on the facts of the present case and it need not be addressed in this case. In the present case, the argument could not succeed on the factual findings made by the RRT, whatever construction is adopted.

99    As I read the decisions of the RRT (constituted by the same member in each case), the critical findings were that any potential “anxiety and discomfort” ([79] in the earlier extract) did not amount to a level of harm which met the physical or mental elements of the definitions and so could not be regarded as intentional conduct which satisfied the definitions. In my view, it would be better to consider the second aspect in a case where it was potentially decisive, not indeterminative.

100    In that context, I will make only the following further two short points.

101    The appellants’ arguments of construction depended very substantially upon an invitation to construe the requirements of s 36(2)(aa) in a way which is “consistent with” international law and, in particular, the International Covenant on Civil and Political Rights (“the ICCPR”). In Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211, a Full Court said that although s 36(2)(aa) establishes criteria “that engage” Australia’s obligations under the ICCPR, the requirements in s 36(2)(aa) (unlike s 36(2)(a)) are self-contained. The Full Court said:

17        As noted earlier, we are concerned with s 36(2)(aa) of the Act. It forms part of the Complementary Protection Regime introduced by the Migration Amendment (Complementary Protection) Bill 2011 (Cth) (the Bill) introduced into Parliament in February 2011 and passed on 19 September 2011. The Bill received royal assent on 14 October 2011, and the amending provisions commenced, by proclamation, on 24 March 2012. The amending provisions apply to an application for a protection visa made, but not finally determined (within the meaning of s 5(9) of the Act), before 24 March 2012.

18        The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria “that engage” Australia’s express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights, done at New York on 16 December 1966 (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on 10 December 1984 (CAT) and the Convention on the Rights of the Child, done at New York on 20 November 1989 (CROC) (collectively the International Human Rights Treaties): Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Section 36(2B)(a) and (b) have adopted a different and contrary position. Section 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.

19        Further, the test adopted in s 36(2)(aa), (2A) and (2B) is significant harm, not irreparable harm, being the test referred to in the General Comment No 31 on the ICCPR (Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligations Imposed on State Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) at [12]), or serious harm, being the standard referred to and defined in s 91R of the Act.

20        It is therefore neither necessary nor useful to ask how the CAT or any of the international law treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely s 36(2)(aa) and (2B), construed in the way that has been indicated.

(Bold emphasis added.) (Italics in original.)

102    In an appropriate case, in my respectful view, that reasoning would represent the proper starting point.

103    Secondly, in any search for a proper construction the judgment of the Queensland Court of Appeal in R v Ping [2005] QCA 472; [2006] 2 Qd R 69 would command attention and respect. That was a criminal case, but it concerned the proper construction of s 320A of the Queensland Criminal Code, contained in the Criminal Code Act 1899 (Qld) which provided:

320A    Torture

(1)    A person who tortures another person commits a crime.

Maximum penalty—14 years imprisonment.

(2)    In this section—

pain or suffering includes physical, mental, psychological or emotional pain or suffering, whether temporary or permanent.

torture means the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion.

(Emphasis in original.)

104    Chesterman J, (with whom Williams JA and Jerrard JA agreed) said:

[27]    … Torture is, as I mentioned, the intentional infliction of suffering by an act or a series of acts. The words of s. 320A are plain and unambiguous; they offer no scope for misunderstanding. To make out a case of torture the prosecution must prove, beyond reasonable doubt of course, that an accused intended his acts to inflict severe pain and suffering on his victim. It is not enough that such suffering is the consequence of the acts, and that the acts were deliberate. The prosecution must prove an actual, subjective, intention on the part of the accused to bring about the suffering by his conduct. The acts in question must have as their object the infliction of severe suffering; that must be their intended consequence.

…

[29]    “Intention” has no specific legal definition. It is to be given its ordinary, everyday, meaning. “Intention” is the act of “determining mentally upon some result”. It is a “purpose or design”. (See the Macquarie Dictionary.) To prove that the appellant tortured Mr Loncar the Crown had to prove that his assaults and cruelty were designed to inflict severe psychological harm upon him. It had to prove that the purpose of those assaults was to inflict that harm on the complainant. …

(Emphasis added.)

105    That approach to the construction of s 320A of the Queensland Criminal Code involves rejection of the foundation of the appellants’ construction arguments in the present case. Whether the same approach should be adopted to the construction of s 36(2)(aa) of the Act is an important question. It need not be answered at present, but it is noteworthy that R v Ping was referred to in Zaburoni, which I read as consistent with the approach taken by Chesterman J to that question.

106    The FCCA was correct to dismiss each of the applications to that court.

107    I would dismiss the present appeals with costs.

Associate:

Dated:    20 May 2015