The High Court has dismissed two appeals against a decision of the Full Federal Court on the refugee protection criteria applicable to persons who would face detention for unlawfully leaving their country of origin if returned. SZTAL and SZTGM, both Sri Lankans, arrived in Australia and applied for protection visas under the ‘complementary protection regime’. Under s 36(2)(aa), one criteria of granting that application is that the Minister has substantial grounds for believing that, if the applicant were returned, there is a real risk that they will suffer significant harm, including ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’. Under the definition in s 5, these must, respectively, be ‘intentionally inflicted’ and ‘intended to cause’ extreme humiliation. The Minister rejected the applications.

The Refugee Review Tribunal found that, if returned to Sri Lanka, the appellants would be arrested, charged and detained for leaving the country illegally, and would be held in prisons that may not meet international standards. The RRT concluded that the requirement of ‘intention’ was not satisfied: the poor conditions were due to a lack of resources, rather than an intention to inflect cruel, Continue reading →

The High Court has dismissed an appeal against a decision of the ACT Court of Appeal on incitement to procure a third person to commit a criminal offence. The respondent was in custody awaiting prosecution when he asked a fellow prisoner to arrange for a third person, outside the prison, to kidnap two potential witnesses, convince them to adopt an exculpatory statement the respondent had written, and then kill them. The other prisoner did not go through with the plan and instead reported the respondent, who was then convicted on charges of attempting to pervert the course of justice (contrary to ss 44 and 713(1) of the Criminal Code 2002 (ACT)) and incitement to kidnap (contrary to s 47 of the Code and s 38 of the Crimes Act). On appeal, the ACTCA unanimously upheld the respondent’s conviction on the perversion of justice count, but set aside the convictions on the incitement to kidnap charges; Murrell CJ held that a person cannot be charged with inciting someone to procure a third person to commit a crime, and Wigney J held that such a charge was possible, but requires that the crime is actually committed. At issue before the High Court was whether incitement to procure a substantive offence was an offence under the Code; and whether Continue reading →

The High Court has determined a special case on the validity of ss 501(3) and 503A(2) of the Migration Act 1958 (Cth). Section 501(3) provides that the Minister may cancel a visa where its holder does not pass the ‘character test’ — which may occur where, among other things, the person has a substantial criminal record, or the Minister reasonably suspects the person is associated with an organisation involved in criminal conduct — and where the visa cancellation would be in the ‘national interest’. Section 503A requires that the Minister divulge or communicate information to a court or tribunal that is reviewing a purported exercise of the character test-cancellation power. The plaintiff and applicant were both New Zealand citizens resident in Australia who held Class TY Subclass 444 Special Category (Temporary) Visas. In each case, the Minister issued them with a decision to cancel the visa, purportedly made under s 501(3), on the basis that they were members of the Rebels Outlaw Motorcycle Gang, which had been involved in criminal conduct, and noted that in making the decision the Minister had considered information that was protected from disclosure to them under s 503A, but with no further details beyond that.

The first question in the special case agreed by the parties requested that the High Court determine

whether either or both of ss 501(3) and 503A(2) of the Act Continue reading →