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, inhuman treatment, punishment or humiliation. On appeal, the FCAFC rejected the appellants’ arguments, with Kenny and Nicholas JJ holding that ‘intention’ required an actual subjective intention to cause the relevant harm, irrespective of whether the Sri Lankan officials foresaw the consequences of their actions, and Buchanan J holding that the Tribunal’s findings indicated that the level of harm did not meet the threshold required by s 36(2)(aa).

The High Court, by majority (Kiefel CJ, Gordon and Nettle JJ, Edelman J), dismissed the appeal (Gageler J dissenting).

After noting that ascertaining the meaning of a statutory provision began with the text, whilst also having regard to its context and purpose (at [14]), the plurality reiterated the meaning of ‘intention’ adopted in Zaburoni v The Queen [2016] HCA 12 of actual, subjective intention, and the directing of the mind, or having a purpose or design; the approach taken by Kenny and Nicholas JJ (at [15]), and the context of the Migration Act does not tell against this ordinary meaning of intention (at [17]). While the word may have a different meaning in international law, international legal sources do not provide any settled or additionally useful meaning (at [18], [19]). The plurality also rejected any analogies with the meaning of ‘intention’ in the Criminal Code 1995 (Cth), noting that while it and the Migration Act deal with the same subject matter along the same lines and have a relation to the same treaties, the statutes deal with these things in different ways: while the Criminal Code creates criminal responsibility for acts of torture, the complementary protection regime in the Migration Act implements the prohibition on non-refoulement, and is not concerned with assessing the criminal responsibility of foreign officials (at [21]–[25]). Consequently, ‘[t]he reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective, intent. As Zaburoni confirms, a person intends a result when they have the result in question as their purpose.’ (at [26]), and while knowledge or foresight might permit an inference of intent to be drawn, neither knowledge nor foresight is to be equated with intent: at [27]. As applied here, the evidence before the Tribunal on the possible knowledge of Sri Lankan officials about prison conditions was sufficient for it to conclude that it could not be inferred that Sri Lankan officials intended to inflict the degree of pain, suffering or humiliation required under the test in s 36(2)(aa): at [28]–[29].

Edelman J also dismissed the appeal, holding that the Migration Act uses ‘intention’ in its ‘natural and ordinary sense’, and not the ‘unnatural or fictitious sense’ used in some earlier authorities (at [68]) also called ‘oblique intention’; namely, a result arising that was ‘”in contemplation, and appeared likely to ensue in case of the act’s being performed”‘ (at [61], quoting Jeremy Bentham). Edelman J agreed with the appellants’ submission that the FCAFC’s approach meant that ‘actual, subjective, intention’ could not be proved obliquely (that is, by showing the Sri Lankan officials would order the applicants’ detention with knowledge of the consequences of that order) (at [64]). Edelman J rejected, however, the appellants’ arguments that this preclusion of oblique intention was in error. First, Edelman J rejected their contention that the meaning of ‘intention’ in various sources of international law allowed for oblique intention: this was not clearly borne out in decisions of various international courts and tribunals, which were ‘limited … conflicting … and do not demonstrate any established or consistent meaning of intention’ (at [84]ff). Nor was it clear that the Migration Act intended to adopt any such international definition, or that the definition that might have been reflected in the Criminal Code‘s provisions on torture could be appropriately transplanted from the latter to the former (at [90]–[91]).

Secondly, his Honour rejected the appellants’ contention that oblique intention is included in the ordinary meaning of ‘intention’, which they argued was supported by the plurality’s judgment in Zaburoni. For Edelman J, Zaburoni ‘cannot resolve these appeals. There was no issue in that case as to whether “intent” … could include oblique intention’ (at [67], [102]). Despite this difference from the present plurality judges, Edelman J endorsed their conclusions on the ordinary meaning of intention: ‘Despite earlier authority in this Court which suggested the contrary, the ordinary meaning applied in Zaburoni is not new. The earlier decisions of this Court which treated the ordinary meaning of intention as including oblique intention were never uncontroversial. Properly understood, oblique intention is not intention at all. Those cases must now be understood as using the word “intention” as a proxy for another concept, such as recklessness or a mental state other than intention.’ (at [67]). Given that, for Edelman J, ‘oblique intention’ is not within the legitimate and ordinary use of ‘intention’, the appellants’ submission that the FCAFC erred in restricting it to ‘actual, subjective, intention’ must be rejected and the appeals dismissed (at [112]–[114]).

Gageler J dissented, emphasising that the question of an ‘intention’ to subject someone to imprisonment conditions does not obviously tend towards either answer: ‘no amount of contemplating the abstract meaning of “intend” will supply the answer. The answer depends on why the question is asked’: at [32], specifically, here, for assessing significant harm in the complementary protection regime (see at [33]). Gageler J noted that the difficulty in resolving the question has been partly due to competing answers being presented as a choice between a ‘fixed “ordinary meaning”‘ in domestic law and another ‘settled meaning in international law … appearing as part of the definition of “torture”‘ (at [34]). Gageler J emphasised that these were not the only options in construing the term (at [34]):

Much effort has been expended exploring whether the word has or has not acquired a settled meaning in international law. The word has not been shown to have a settled meaning in international law. But that does not exhaust the relevance of international law to the choice of statutory meaning, and it does not lead to the result that the statutory meaning of the word is left to be determined as an exercise in abstract linguistic analysis.

Here the constructional choice begins with statutory text, but construed ‘from beginning to end’ in context, where context has use if and in so far as it assists in fixing the meaning of the text (at [37]), and choosing between a range of meanings requires discerning the purpose of the statute (at [38], [39]). Gageler J noted that this process is the same where the question invovles the content of a ‘statutorily invoked concept’ the ordinary meaning of which is clear enough but still not sufficiently precise to definitively guide the concept’s meaning and application in a particular statutory setting (at [40]). Intention is sufficiently imprecise to be always determined by ordinary or grammatical meaning ([41]), and this imprecision is further complicated by intending ‘a result’ and whose state of mind is relevant: ‘whether a man or woman is to be taken subjectively to intend the known or expected consequences of his or her act is less susceptible of generalisation. Intention as to a result will sometimes require the purpose or design of bringing about the result. At other times, intention as to result will sufficiently be found in willingness to act with awareness of the likelihood of the result’ (at [42]).

As applied to the Migration Act, critical in that constructional choice is the purpose for the complementary protection regime; specifically, aligning the criteria for the grant of a protection visa with Australia’s obligations under international law (at [43], [44]). For Gageler J, there was no apparent reason for concluding that Parliament might have adopted one approach to ‘intention’ in implementing the definition in the Convention Against Torture in its Criminal Code and another for implementing the CAT non-refoulement prohibition in the Migration Act (see [45]–[48]): ‘In particular, no reason appears for attributing to Parliament a legislative intention to take a narrower view of torture for the purpose of protecting the victim than the view of torture it has expressly spelt out for the purpose of punishing the perpetrator.’ (at [49]). For Gageler J, the underlying notion of intention must be the same in all three instances (at [50]). Finally, the breadth of art 7 of the International Covenant on Civil and Political Rights, which is the basis for the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment, provides a ‘broader contextual reason’ for taking up a wider concept of intention (at [51]ff).

Turning to the lower Courts, Gageler J concluded that the FCAFC was not correct in law to take up a limited view of intention that approached it as only a subjective intention to bring about the relevant outcome (at [58], and see at [55]ff):

On the construction of the definitions I think to be preferable, the requisite intention will exist in either of two scenarios: where the perpetrator means to engage in conduct meaning to bring about the result adverse to the victim; and where the perpetrator means to engage in conduct aware that the result adverse to the victim will occur in the ordinary course of events.