SZTAL V MINISTER FOR IMMIGRATION [2016] FCAFC 69

Transcription

1 SZTAL V MINISTER FOR IMMIGRATION [2016] FCAFC 69 Introduction 1. The issues in the Full Court arose from SZTAL s claim that, if he returned to Sri Lanka, he would be punished for having left that country unlawfully. There was material before the Tribunal indicating that: (a) (b) (c) (d) Since November 2012, all returnees who left Sri Lanka illegally had been arrested by the Criminal Investigation Department (CID) after being processed back into Sri Lanka, charged with an offence under the Immigrants and Emigrants Act 1945 and bailed. Persons charged with illegal departure were held in police custody at the CID Airport Office for up to 24 hours during the investigation period. They were 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, were held in the nearby Negombo Prison Remand Unit until the Magistrates Court was available. All persons were being granted bail on their own recognisance with a family member as guarantor, although the court might impose conditions or might decide not to grant bail if the returnee were considered to be a facilitator or organiser of people smuggling. There were about 1,000 cases of illegal departure before the courts in Sri Lanka involving returnees and none had progressed to a hearing. Persons intercepted in the act of illegally departing Sri Lanka had been convicted, and received a fine.

2 (e) (f) (g) Sri Lanka s Attorney-General s Department considered people being intercepted on people smuggling boat ventures in Sri Lanka as victims and they were not given custodial sentences. Fines were imposed (at the discretion of the court) as a deterrent to joining boat ventures in the future. Prison conditions in Sri Lanka might not meet international standards. Concerns included 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 had been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits inhuman or degrading treatment or punishment, and had been said by the US Department of State (USDOS) (citing an assessment by a former UN Special Rapporteur on Torture) to amount to degrading treatment. Sri Lankan authorities had acknowledged the poor prison conditions but lack of space and resources had inhibited reform. The President had 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. 2. SZTAL claimed that these circumstances brought him within the complementary protection provision in s 36(2)(aa) of the Migration Act, on the basis that there were substantial grounds for believing he would be subjected to cruel or inhuman treatment or punishment, or alternatively torture. Each of these is a form of significant harm for the purposes of 2

3 s 36(2)(aa), as defined in s 36(2A). Each is, in turn, defined in s 5. The relevant provisions are as follows. 36 (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) (aa) 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 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 noncitizen will suffer significant harm; (2A) A non-citizen will suffer significant harm if: (a) (b) (c) (d) (e) the non-citizen will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the non-citizen; or the non-citizen will be subjected to torture; or the non-citizen will be subjected to cruel or inhuman treatment or punishment; or the non-citizen will be subjected to degrading treatment or punishment. 5 (1) cruel or inhuman treatment or punishment means an act or omission by which: (a) (b) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or 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 3

4 (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) (b) that is not inconsistent with Article 7 of the Covenant; or 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) (b) (c) (d) (e) for the purpose of obtaining from the person or from a third person information or a confession; or 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 for the purpose of intimidating or coercing the person or a third person; or for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); 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 by the Full Court.) 3. The Tribunal broadly accepted the evidence referred to above, and concluded as follows: [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 4

5 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. 5

6 [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 by the Full Court.) 4. The main issue addressed by the majority in the Full Court (Kenny and Nicholas JJ) was whether the Tribunal had erred by proceeding on the basis that the prospect of SZTAL encountering harsh conditions in prison (in the event that he was detained for a period) did not amount to grounds for believing he would suffer cruel or inhuman treatment as defined, because it would not result from any intention on the part of the Sri Lankan authorities to inflict such treatment on him. 5. Justice Buchanan did not think this issue arose, and preferred not to decide it (although he made some brief remarks generally supportive of the majority). He regarded the Tribunal as having decided that any anxiety or discomfort which SZTAL might suffer during a short stay in prison did not amount to a level of harm which met the physical or mental elements of the definitions (at [99]), so that the question whether it was relevantly intentional did not need to be decided. 6. A second issue, which received much less attention, was whether the First issue Tribunal had erred in its analysis of a particular social group claim. It was said that the Tribunal had accepted that the applicant was a member of a particular social group comprising returnees who left Sri Lanka illegally, against whom the Sri Lankan law would be enforced, but not considered whether that law was appropriate and adapted to achieving some legitimate object of the country. 7. SZTAL s central proposition was that pain or suffering would be intentionally inflicted, within the meaning of the definition of cruel or 6

7 inhuman treatment or punishment, by any act or omission where the actor knew that pain and suffering would result from it in the ordinary course of events (see [20]). SZTAL appears to have accepted that the Tribunal s findings did not establish that any relevant person in Sri Lanka had such an awareness (see [41]), but argued that this was because the Tribunal had not turned its mind to the issue and had erred in failing to do so. (It will be noted that, at [80] of its reasons (set out above), the Tribunal appears to have regarded the question as being whether there was a positive intention to inflict harm on persons in SZTAL s position.) 8. As summarised by the majority at [20], SZTAL s argument in support of his construction of the definition had four elements. (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 7

8 international obligations, harmony with other federal laws, and rational outcomes, and is therefore to be preferred. 9. The first element really had two strands. First, the definition of torture (set out above) refers to harm that is intentionally inflicted but also inflicted for a purpose. This, it was said, indicates that the phrase intentionally inflicted (used throughout) encompassed acts that did not involve a purpose or motive of inflicting harm. The majority, however, did not regard this point (essentially, that torture required an additional element of purpose) as shedding any light on the concept of intentional infliction (at [42]-[43]). 10. Next, the argument referred to several cases in which questions about intention had arisen in various common law contexts. Each of the cases discussed involved issues of criminal responsibility and the majority was therefore somewhat cautious about their relevance. Some assistance was found in them, although ultimately contrary to SZTAL s argument. (a) He Kaw The v The Queen (1985) 157 CLR 523 involved the mental element of an offence under the Customs Act. The majority quoted (at [47]) from Brennan J, who referred to a difference between general intent (in the sense of an intentional act) and specific intent (an intention to cause results). The latter, his Honour said, was usually established by a desire or wish to cause the relevant result, although (citing Reg v Crabbe (1985) 156 CLR 464) it could sometimes be established by knowledge that that result was likely to occur. (b) Significantly, their Honours then went to R v Crabbe (at [49]-[50]). In that decision the High Court equated acting with knowledge that harm was likely to occur with an intention to cause that harm, but on the basis that it was just as blameworthy and comparable to that mental state. That is, knowledge of the consequences was regarded 8

9 not as constituting an intention but as morally equivalent to one (and therefore sufficing to establish the mental element of the crime). (c) Reference was also made to R v Moloney [1985] AC 905 (where Lord Bridge counselled against any elaboration of the concept of intent when directing a jury) and R v Willmot (No 2) [1985] 2 Qd R 413, where Connolly J said that the requisite mental element under Queensland law was actual intent, but that intent could properly be inferred from evidence of knowledge that harm was a probable result of the accused s act. (d) The majority concluded that the preponderance of the authorities was that intention with respect to a result means to have it in mind to achieve the result (at [53]). (e) Finally, the Minister had relied on R v Ping [2006] 2 Qd R 69, a case on the offence of torture under the Queensland Criminal Code (the definition of which involved the intentional infliction of severe pain ). Ping was squarely against SZTAL s argument. The jury had been directed that an intentional infliction of harm could be found if that harm was a foreseeable consequence of what the accused did. The Court of Appeal held that this was erroneous because the words of the statute required an actual subjective intention to bring about suffering. The majority in SZTAL regarded this as persuasive and consistent with the earlier authorities (at [59]). 11. The second element of the argument outlined above (and to some extent the fourth) raised the relevance of international law to the task of statutory construction. In the view of the majority, while it was true in a general sense that the complementary protection regime was enacted to give effect to Australia s international obligations, the text of the statute indicated that Parliament did not intend to implement the relevant obligations in their entirety (at [61]). The definitions of relevant concepts in s 5(1) were 9

10 intended to be exhaustive and, for example, the element of intentional infliction in the definition of cruel, inhuman or degrading treatment or punishment was not a part of the equivalent concept in the International Convention on Civil and Political Rights (ICCPR). Thus, it was apparent that Australia s obligations were only being implemented to a certain extent. 12. Having noted that, their Honours pointed out that the general principle of construction that legislation implementing a treaty should be construed consistently with that treaty was of limited application. That principle could not help in construing the reference to intention in the definition of cruel, inhuman or degrading treatment or punishment, since that element was not part of the corresponding concept in the ICCPR (at [63]). This, it was noted (at [64]), was consistent with what an earlier Full Court had said (about the standard of protection required by s 36(2B)(b)) in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211. However it was noted that, where the statutory language does adopt the standards of one of the relevant treaties (as some elements of the web of definitions in s 5 do), the treaty provisions and any international jurisprudence will be relevant in construing that language (at [65]). 13. The third and fourth elements in the argument were also dealt with quite briefly. The majority was simply not persuaded that construing the term intentionally inflicted as requiring actual subjective intention would lead to irrational or unintended outcomes (at [68]). As to the argument about achieving harmony with the offence of torture in the Commonwealth Criminal Code, this carried little weight (at [67]) because the contexts were vastly different (imposing criminal sanctions on conduct under Australian law, versus providing protection against apprehended conduct in another country) and it was evident that the legislature had simply taken a different approach. 14. Accordingly SZTAL s first ground of appeal was rejected. 10

11 Second issue 15. The second issue was dealt with briefly and somewhat elliptically. To understand how it arose, it is necessary to go back to the Tribunal s reasons and the reasons of the primary Judge. 16. The Tribunal in its reasons (at [85]) had expressed itself in terms consistent with SZTAL being a member of a particular social group comprising returnees or persons who left Sri Lanka illegally. In the Federal Circuit Court SZTAL relied on the reasoning of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 to argue, first, that the identified harm was necessarily serious harm for the purposes of refugee law; and secondly, that the question as to whether the harm amounted to enforcement of a law of general application (and thus not persecutory) should have been analysed (but was not) in accordance with WZAPN. 17. The Minister met this submission at several levels. He submitted that the Tribunal had not in fact made any finding about a particular social group; that a particular social group could not be constructed by reference to a shared fear of persecution; and that country information and the Tribunal s findings were that the Sri Lankan law was being administered without discrimination and not arbitrarily (see [2015] FCCA 64 at [62]-[63]). The primary Judge agreed with the last of these arguments and distinguished WZAPN on this basis (at [65]). 18. By the time the appeal was heard, WZAPN had been reversed by the High Court ((2015) 254 CLR 610) and the reasoning of North J played no part in the Appeal. However, Ground 2 contended that the primary Judge had erred in holding that the Tribunal did not need to consider whether the Sri Lankan law was appropriate and adapted to achieving a legitimate object of the country (citing Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 at [45]-[49]). (That holding, it should be noted, is at most implicit in the primary Judge s reasons.) 11

12 19. The majority sidestepped this point by effectively agreeing with the second of the Minister s answers: that the proposed particular social group did not accord with accepted principles of refugee law (expounded, relevantly, in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225), because the group existed only by virtue of its members shared fear of consequences under Sri Lankan migration laws (at [71]-[76]). The fact that the relevant fear was of the consequences of a process (ie, detention in poor conditions pending bail) rather than punishment per se did not answer that point. The question whether those laws served a legitimate end therefore did not arise. 20. What is not elaborated upon by the majority is how this reasoning connects with the Tribunal s reasons. Its end point seems to be that the Tribunal would have erred if it had found that SZTAL had a well founded fear of persecution as a member of the identified group (because it was not, on the material, a particular social group in the necessary sense). That would mean that the conclusion it ultimately reached was the only available one, so that there was no error going to jurisdiction notwithstanding any errors or omissions that might have occurred along the way (cf the oblique reference at [77] to whether the Tribunal relevantly erred ). This is probably a sound approach, but ought (with respect) to be explained. Another way of understanding the consequence of their Honour s reasoning might be that the glancing reference in the Tribunal s reasons at [85] should not be construed as an acceptance that the identified group was a particular social group, because such an acceptance would be erroneous. Interesting points 21. The reasoning in SZTAL merits attention for four reasons that I can see. 22. First, there are a large number of Sri Lankan protection visa applicants in Australia and it seems that all of them face the prospect of being charged 12

13 with offences under the Sri Lankan migration laws if they have to return to that country. It is very likely that the Tribunal will have before it more or less the same country information in every case, pointing to the likelihood of a minor penalty preceded by a short time on remand in very unsatisfactory conditions. Unless that country information changes in some significant way, SZTAL points strongly to the conclusion that the prospect of being charged with an offence under the migration law upon return to Sri Lanka does not provide a basis for the grant of a protection visa. 23. Secondly, it involves an interesting example of recourse to cases in other areas of the law in seeking to shed light on a term used in a statute. In this case, the Court appears to have found the criminal cases helpful although it was appropriately cautious about using them. It is interesting to speculate about what the Court might have decided if the criminal cases had been less clear or had supported SZTAL s position. Ordinarily, context is critical: while the ordinary meaning of a word (if it has one) will usually be a good starting point for identifying its meaning in a statute, any particular or technical meaning that it has acquired in a different legal context is less likely to be relevant because that meaning is likely to be context-dependent. 24. Thirdly, it makes an important point about the relevance of treaty obligations (and international law jurisprudence elaborating those obligations) in statutory construction. The Full Court in MZYYL had resisted recourse to the international conventions and their jurisprudence as a tool for construing s 36(2B) on the basis that the complementary protection provisions set out their requirements in comprehensive language rather than picking up concepts from the treaties: it is with the statutory language itself that the process of construction must begin and end. SZTAL provides an important (and in principle correct) qualification to the well established principle that a statute should be construed in accordance with Australia s international obligations if its language allows. If the statute on its face shows Parliament implementing an international 13

14 obligation only in part, the question becomes how far Parliament intended to go. That question seemingly cannot be answered by an a priori assumption that full implementation was intended. 25. Fourthly, the Full Court s determination of the second issue provides an illustration of the application of the principle stated in Applicant A. This aspect of the case may also be of some interest to administrative lawyers in that the basis upon which the Tribunal was held not to have erred did not reflect any actual reasoning by the Tribunal. That is rare. As I have noted above, it is possible to construct rational bases upon which the majority s view about the Applicant A principle could lead to the conclusion that there was no jurisdictional error. It is perhaps unfortunate that the connection is not made explicitly in the reasons and one is left to speculate. Geoffrey Kennett SC Tenth Floor Chambers Sydney 23 February 2017 Liability limited by a scheme approved under Professional Standards legislation 14