'A Purposive Approach to Interpreting Australia's Complementary Protection Regime' by Alice Lloyd in (2019) 43(2)
Melbourne University Law Review comments
Under international human rights law, states have an obligation to protect individuals who would otherwise be returned to a place where they would suffer significant harm. This obligation sits alongside, and is ‘complementary’ to, a state’s obligations to refugees under the Refugee Convention. By virtue of legislation enacted in 2011, the international obligation to provide ‘complementary protection’ has been codified to form part of Australian domestic law. While designed to align Australia’s protection visa system with international standards, the drafting of s 36(2)(aa) of the Migration Act 1958 (Cth) has left open a degree of uncertainty as to its application. This article examines how the addition of a single word, ‘intend’, has left a gap in the system, through which many applicants — entitled to protection under Australia’s international non-refoulement obligations — may slip. This raises a unique interpretative dilemma: how should the judiciary interpret legislative provisions that are professed to comply with international law, yet stray from the terminology of their corresponding international provisions? This article advocates for the use of the modern purposive approach to interpretation, which requires selection of the interpretation that best aligns with the purpose and context of the statute. It is argued that the High Court case of SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 failed to properly apply the purposive approach in interpreting the intention requirement of Australia’s complementary protection regime.
Lloyd argues
Consider the facts of Kalashnikov v Russia, a case that came before the European Court of Human Rights (‘ECtHR’). A man is charged with a crime and placed in detention pending a hearing before the city court. For the duration of his incarceration, he is kept in a small cell with no ventilation. There are eight beds in the cell, but it usually holds 24 prisoners. The inmates take turns to sleep, but sleeping is difficult because the lights are always on, and the television always playing. A single toilet is located in the corner of the cell, with no screen to offer privacy to the inmates. Meals are eaten at a dining table a metre away. The cell is overrun with cockroaches and ants. The man endures these conditions for four years and 10 months.
There is no doubt that the government and local authorities are well aware of the substandard conditions of the facility. Can it be said that they intend to subject the man to these conditions? The answer is not immediately clear. Domestic complementary protection legislation was enacted in 2011 to enhance Australia’s compliance with its international non-refoulement obligations. Specifically, the legislation sought to widen the scope of protection visa legislation to cover applicants who would be subjected to torture or cruel, inhuman or degrading treatment or punishment (‘CIDTP’) in the country that receives them. Buried within the new provisions was, however, a definitional requirement at odds with the understanding of CIDTP in international law. In this article, I examine the domestic requirement that, for
the purpose of meeting protection visa criteria, the CIDTP an applicant would face upon return to another state be intentionally inflicted. I do not seek to mount a challenge to the CIDTP definitions in the enacted complementary protection legislation. Rather, I take the law as it stands, focusing upon the role of the judiciary in its interpretation.
In three parts, I make the argument that the meaning of the intention requirement in the complementary protection regime cannot be given a textual interpretation isolated from the context and purpose of the statute. Recourse to the statute’s purpose — compliance with Australia’s international non-refoulement obligations — is required to inform the correct interpretation of intention. I argue that an understanding of intention that sees known consequences of an act as intended should be adopted. This is on the basis that it best aligns the domestic complementary protection regime with the international complementary protection obligations that Australia has sought to implement.
In Part II of this article, I discuss the 2017 case of SZTAL v Minister for Immigration and Border Protection (‘SZTAL’), in which the High Court of Australia upheld the rejection of two protection visa applications by the Refugee Review Tribunal (‘RRT’) on the basis of the intention requirement. The applicants were two Sri Lankan men who credibly claimed that upon return to Sri Lanka they would be imprisoned in ‘shocking conditions’. The Court confirmed the RRT’s finding that the Sri Lankan authorities did not intend — in the actual, subjective sense of the word — to subject the applicants to these conditions. Following an analysis of the case I argue that appropriate meaning of intention cannot be ascertained in the abstract, because intention is capable of multiple meanings. One possible meaning of intention encompasses knowledge of practically certain consequences, which can be described as ‘oblique intention’. The correct interpretation of the intention requirement in the complementary protection regime is dependent on the statute’s context and purpose.
On this basis, I then proceed in Part III to advocate for a ‘purposive approach’ to interpreting the intention requirement. I use the term ‘purposive approach’ to refer to purposive theory, which calls for judicial consideration of a statute’s purpose and context in interpretation, as compared to a strictly literalist approach.
dissenting judgment of Gageler J in SZTAL, who interpreted the intention requirement in light of the expressed purpose of the Australian complementary protection regime: alignment with Australia’s international non-refoulement obligations. In contrast, the majority paid only lip-service to the international context marked the end of its relevance. As distinct from existing academic discussion, I focus specifically on the implications of the purposive approach for judicial engagement with international human rights law. I argue that the proposed approach ensures that the judiciary has regard to international law when interpreting the complementary protection regime — a statute that purports to implement international obligations but deviates in its terms from those obligations. My argument is reinforced by a second proposition, founded in the normative understanding of the principle of legality and the presumption of legislative consistency with international law. I propose that the judiciary should only accept legislative interference with the right to non-refoulement where clear statutory language to this effect is discernible.
Finally, in Part IV of this article, I apply the purposive approach to ascertain the correct meaning of the intention requirement, informed by the international human rights law context of the complementary protection regime. Firstly, I argue that regardless of whether a settled meaning of intention exists under international law, the international context of Australia’s complementary protection regime is central to its interpretation, and necessitates a broad understanding of intention. Secondly, I argue that the Australian judiciary should seek to uphold the international ‘autonomous’ meaning of the CIDTP prohibition at the core of Australia’s complementary protection obligations. I unpack the nature of this autonomous meaning, before proposing a reading of intention that does not detract from it. A normative facet to this argument is developed by drawing upon Jeremy Waldron’s theory that the international CIDTP prohibition is ‘archetypal’ of the international human rights law regime, providing strong reason not to diminish its integrity in domestic law. I conclude that a broad interpretation of intention, which better facilitates the purpose of the complementary protection regime, is available on the text. This interpretation should be preferred to a narrow one that causes the legislation to depart significantly from the international human rights obligations it is designed to implement.
