High Court of Australia: SZTAL v. Minister for Immigration and Border Protection; SZTGM v. Minister for Immigration and Border Protection.

• Author: Tully, Stephen
• Position: CASENOTE

I Introduction

Contemporary international law, including decisions from the International Criminal Tribunal for the former Yugoslavia and the European Court of Human Rights, (1) does not offer a settled meaning of "intention" in relation to torture and cognate concepts. That rather surprising conclusion was made by the High Court of Australia in the recent decision of SZTAL; SZTGM. (1) This casenote first describes the legislative framework under consideration before analysing the judgment and exploring some of its implications.

II Essential Background

This case considered the "complementary protection regime" under the Migration Act 1958 (Cth) (the Act), which seeks to give effect to Australia's non-refoulement obligations under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1989] ATS 21 (the CAT) (in respect of torture) and Article 7 of the International Covenant on Civil and Political Rights [1980] ATS 23 (the ICCPR) (with respect to cruel or inhuman treatment or punishment and degrading treatment or punishment).

A criterion for the grant of a protection visa under s 36(2) (aa) of the Act is that the applicant is a non-citizen in Australia in respect of whom "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". "Significant harm" includes a non-citizen being subjected to "torture", "cruel or inhuman treatment or punishment" or "degrading treatment or punishment" (s 36(2A)) "[C]ruel or inhuman treatment or punishment" is relevantly defined in s 5(1) as an act or omission by which "severe pain or suffering, whether physical or mental, is intentionally inflicted on a person". This definition is not taken from the ICCPR. Instead, the definition is a partial adaptation of the definition of "torture" in s 5(1), which is derived from the definition of "torture" found in Article 1 of the CAT. (3) "Torture" is relevantly defined as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person" for certain purposes such as obtaining information or a confession, or intimidating or coercing the person or a third person. "[Degrading treatment or punishment" is defined under s 5(1) of the Act as an act or omission that causes and is intended to cause extreme humiliation which is unreasonable. Once again, the ICCPR does not expressly require that humiliation be...