EDELMAN J.
Introduction
The central question in these two appeals is the meaning of "intentionally" in s 5(1) of the Migration Act 1958 (Cth), as amended in 2012. There is no dispute that, as the Full Court of the Federal Court held in each appeal, a person intends a result if the person "means" to achieve it in the sense of having it as the person's desire, aim, or purpose. But the appellants submitted that the concept of intent does not have to bear a narrow meaning which is limited to this sense of desire, aim, or purpose. They submitted that it had a broader meaning in s 5(1). The essential submission of the appellants was that the broader meaning of intention extends beyond desire, aim, or purpose and also "sees intent established once knowledge of the likelihood of the consequences [ie results] of an act reaches a sufficient degree of certainty". The appellants submitted that it was a sufficient degree of certainty if the actor knew that the result would occur in the ordinary course of events.
This broader meaning of intention is precisely the concept that philosophers since Bentham have described, and debated, as "oblique intention". Bentham described oblique intention as arising where a result "was in contemplation, and appeared likely to ensue in case of the act's being performed". In submissions of identical effect, the appellants argued that intention could arise in such a case because "you have knowledge that the act you want to do is likely to have a result". Although the appellants used the synonym "indirect intention" in place of "oblique intention", they relied upon a famous article by Professor Glanville Williams in which Williams popularised, and supported, Bentham's label of oblique intention. For convenience, in these reasons I will describe the appellants' submissions by that well-known, and shorthand, label of "oblique intention", accepting that it is identical to the synonym used by the appellants of "indirect intention".
There have been a number of judgments in this Court, relied upon by the appellants, that have described intention in terms which include within it this notion of oblique intention. Different formulations of oblique intention have insisted upon different degrees of foresight. Sometimes it has been said that the result must be foreseen as "inevitable" or "virtually certain". Sometimes it has been said that the result need only be foreseen as "probable". And the Criminal Code (Cth) has defined intention with respect to a result as existing where that result is expected to "occur in the ordinary course of events". The fundamental point of oblique intention is that foresight of a result is not used as a means to infer intention in the sense of an aim or purpose. The point is that voluntary conduct with a foreseen result means that the foreseen result is also intended.
The context in which the question is raised in these two appeals concerns whether a Sri Lankan official who intends to detain briefly in custody a returned asylum seeker, and knows of the shocking conditions in custody, therefore intends that the detainee be subjected to those shocking conditions. The two appellants applied for protection visas, alleging that they would suffer (i) torture, (ii) cruel or inhuman treatment or punishment, or (iii) degrading treatment or punishment upon return to Sri Lanka if their applications were denied. Since they had not departed Sri Lanka lawfully they would be exposed to a brief period of detention on remand. They alleged that the infliction of pain and suffering (within the definitions of these three matters in the Migration Act) would arise as a result of prison conditions if they were returned. They submitted that "severe pain or suffering, whether physical or mental" would be "intentionally inflicted" upon them, within the meaning of s 5(1) of the Migration Act.
As the appellants correctly submitted, the Full Court of the Federal Court effectively concluded that "actual, subjective, intention" cannot be proved in an oblique way merely by proving that the Sri Lankan official who would order the detention of the appellants would do so with knowledge of the consequences of his or her intended act. The appellants submitted that this was an error for two alternative reasons.
First, the appellants alleged that the Migration Act should be construed consistently with an alleged international meaning of intention which was said to include oblique intention. The appellants submitted that this international meaning was applied in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) ("the Convention against Torture"). The appellants' submission on an international meaning of intention which includes oblique intention placed particular emphasis upon the definition of intention in the Criminal Code, which incorporated oblique intention.
The appellants' first submission should not be accepted. No established, consistent definition of intention emerges from the international jurisprudence which the relevant provisions of the Migration Act could be thought to have adopted when they were inserted. The approach in the Criminal Code, which includes oblique intention, is not a uniform international model. In any event, the Criminal Code's adoption of oblique intention was made in circumstances of controversy where a choice was taken to depart from the ordinary meaning of intention, which does not include oblique intention. The Migration Act did not include the extended, and controversial, Criminal Code definition.
The second reason given by the appellants was that the ordinary meaning of intention includes the concept of oblique intention. The first respondent relied upon the joint judgment of Kiefel, Bell and Keane JJ in Zaburoni v The Queen, where their Honours rejected the concept of oblique intention. The decision in Zaburoni cannot resolve these appeals. There was no issue in that case as to whether "intent" in s 317(b) of the Criminal Code (Q) could include oblique intention. Indeed, it was conceded in argument that intention did not include oblique intention, so no reference was made to any of the earlier High Court judgments which had recognised or applied oblique intention. Perhaps more fundamentally, even if the obiter dicta in Zaburoni could be treated as having impliedly rejected the earlier authorities, there would be a large question about the extent to which a later decision about the ordinary meaning of intention can be used to construe the meaning of that concept in an earlier statute. Nevertheless, the conclusions of the joint judgment about the ordinary meaning of intention should be endorsed. 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.
The best construction of the Migration Act is that it uses "intention" in its natural and ordinary sense rather than the unnatural or fictitious sense in which it is used in some earlier authorities. The Full Court in each case was correct to so conclude. The appeals must be dismissed.
The 2012 Migration Act amendments relevant to these appeals
Background to the 2012 amendments
In the Second Reading Speech to the 2012 amendments, the Minister explained that prior to the amendments there existed "a significant administrative hole in [Australia's] protection visa application process". The "hole" gave rise to a need to "align" Australia's protection visa process with Australia's international obligations of non-refoulement.
The administrative "hole" arose in the following way. Prior to the 2012 amendments, an applicant to whom Australia owed complementary protection obligations, such as protection from torture or cruel or inhuman treatment, fell outside the five categories outlined in the Convention Relating to the Status of Refugees (1951) and was therefore ineligible to receive a protection visa. The only way that an applicant could obtain a protection visa was to make an application to the Minister. Since the criteria for the application would not be satisfied, a delegate of the Minister would refuse the application (see s 65(1)(a)(ii) and (b) of the Migration Act). The applicant would then apply for review to the Refugee Review Tribunal, which application would necessarily be dismissed. However, the dismissal of the application for review would enliven the discretion of the Minister, under s 351 or s 417 of the Migration Act, to substitute a decision that was "more favourable" to the applicant if the Minister thought it was in the public interest to do so.
The effect of this scheme, in the words used by the Minister in the Second Reading Speech, was that applicants would have to go through a process of "applying, failing, seeking review and failing again, just so they are then able to apply to the minister for personal intervention". The Minister described this as a "lengthy process" which was "very time consuming and extremely stressful". The Migration Act was therefore amended "to establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia's arrangements for meeting its non-refoulement obligations and better reflect Australia's longstanding commitment to protecting those at risk of the most serious forms of human rights abuses".
The Migration Act was amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth), the relevant provisions of which took effect on 24 March 2012.
The operation of the 2012 amendments
The 2012 amendments introduced s 36(2)(aa) of the Migration Act, which provided an additional basis for a grant of a protection visa. That additional basis is complementary protection in circumstances where the applicant does not fall within s 36(2)(a) because he or she is not a person about whom the Minister is satisfied that Australia has protection obligations because the person is a refugee. As Lander and Gordon JJ said in Minister for Immigration and Citizenship v SZQRB, s 36(2)(aa) recognises that a non-citizen may be entitled to a protection visa because of Australia's other protection obligations under the Convention against Torture or the International Covenant on Civil and Political Rights (1966) ("the ICCPR"). In broad terms, the criterion is that the Minister must be satisfied that Australia has protection obligations in relation to the visa applicant. Those protection obligations arise if 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". Paragraphs (c), (d), and (e) of s 36(2A) then respectively provide that a non-citizen will suffer significant harm if, among other things, the non-citizen will be "subjected to torture" or "subjected to cruel or inhuman treatment or punishment" or "subjected to degrading treatment or punishment".
Torture
Article 3(1) of the Convention against Torture, to which Australia is a party, provides that "[n]o State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture". The definition of "torture" in Art 1(1) of the Convention against Torture was substantially reproduced in s 5(1) of the Migration Act. Torture is defined in s 5(1) of the Migration Act as follows:
"torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) 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
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) 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."
Under s 5(1), "Covenant" is defined to mean the ICCPR.
One departure in s 5(1) of the Migration Act from the definition of torture in the Convention against Torture is that s 5(1) does not restrict the torture, as Art 1(1) does, to pain or suffering "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". The Explanatory Memorandum accompanying the 2012 amendments, including the definition of torture, explained that in extending the definition in this respect, "Australia is mindful that Article 1(2) of the [Convention against Torture] enables States Parties to adopt national legislation that contains provisions of wider application than the [Convention against Torture] definition".
Cruel or inhuman treatment or punishment
Australia's non-refoulement obligation in relation to cruel or inhuman treatment or punishment arises under Arts 2 and 7 of the ICCPR. Article 7 of that Covenant provides:
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."
Unlike the definition of torture in s 5(1) of the Migration Act, which was derived closely from the Convention against Torture, the definition of "cruel or inhuman treatment or punishment" in s 5(1) departed significantly from the ICCPR. The ICCPR did not define "cruel, inhuman or degrading treatment or punishment". But s 5(1) of the Migration Act did define "cruel or inhuman treatment or punishment". It included a requirement of intention which was not present in the ICCPR. The s 5(1) definition of "cruel or inhuman treatment or punishment" is essentially an extension of the definition of torture where the pain or suffering was not inflicted for one of the purposes or reasons stipulated under the definition of torture. The s 5(1) definition is as follows:
"cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) 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; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant."
The consequence of this approach to "cruel or inhuman treatment or punishment" in the Migration Act is that the concept operates as an extension of the provisions in relation to torture rather than to implement any particular international obligation. At least in the requirement for intention in the definition of "cruel or inhuman treatment or punishment" in s 5(1), it was, therefore, common ground that the definition still left a "hole" in the Migration Act scheme. In circumstances in which an applicant for a protection visa would be returned to a country where the person would be subject to unintended cruel or inhuman treatment or punishment, the applicant would need to make a necessarily unsuccessful application for a protection visa, with a necessarily unsuccessful review by the Tribunal, before the application could be considered by the Minister.
Did the Migration Act incorporate an international law meaning of "intention" from the Convention against Torture?
The appellants' submission concerning an alleged international meaning of "intention", which included oblique intention, essentially involved three steps. First, the definition of cruel or inhuman treatment or punishment is essentially an extended application of the definition of torture. Therefore, "intention" in relation to cruel or inhuman treatment or punishment should have the same meaning as its use in relation to torture. Secondly, "intention" is a word that is capable of bearing more than one meaning. Thirdly, the 2012 amendments to the Migration Act adopted the international law meaning of intention, as that meaning is applied in the definition of torture in the Convention against Torture. The appellants submitted that according to the international law meaning, intention is "established once knowledge of the likelihood of the consequences of an act reaches a sufficient degree of certainty". As I have explained, this extension of intention to include foresight is oblique intention.
The first step of the appellants' submission should be accepted. The same reference to intention, in definitions of closely related concepts, should have the same meaning. Ultimately, the first respondent did not contend that the word "intention" should have a different meaning in relation to the definition of "torture" from its meaning in relation to "cruel or inhuman treatment or punishment".
As to the second step in the appellants' submission, it can be accepted immediately that "intention" is capable of being used by statutes with different meanings. Statutory words must always be read in their context. Indeed, it was common ground between the parties that the definition of intention in the Criminal Code (Cth) departed from some common law definitions of intention. But that does not mean that the word has more than one ordinary or natural meaning.
The appellants' submission falters at the third step. However, several of the appellants' propositions in the third step should be accepted. The appellants correctly submitted that when Parliament implements a treaty into domestic law by using the same words as the treaty, "it is reasonable to assume that Parliament intended to import into municipal law a provision having the same effect as the corresponding provision in the treaty". In other words, where particular words are consciously imported from an international instrument into municipal law then it will generally be the case that the words in municipal law are used in the same way as an established international law meaning of those words. This approach is applicable to the definition of "torture" in s 5(1) of the Migration Act. Contrary to the submissions of the first respondent, the definitions in s 5(1) should not automatically be treated as a "code" to be interpreted without reference to any international materials. The Explanatory Memorandum to the Bill which introduced the 2012 amendments containing the definition of torture said that the purpose of stating expressly what torture does not include was "to confine the meaning of torture to the meaning expressed in international expert commentary (for example, commentary by relevant international human rights treaty bodies) on the meaning of that term as defined".
The reason why the appellants' submission fails at the third step is that there is no established international law meaning of intention against which the use of that word in the Migration Act should be construed. The international law sources relied upon by the appellants are limited, are conflicting, and do not demonstrate any established or consistent meaning of intention. They can be divided into three categories. The first category involves decisions of the International Criminal Tribunal for the former Yugoslavia. The second concerns the Rome Statute of the International Criminal Court (1998) ("the Rome Statute") and the Criminal Code. The third category concerns a publication by the Immigration and Refugee Board of Canada. The third category can be put to one side because the publication contained different meanings of intention in the text and the footnotes and, in any event, it was only a domestic publication provided by the Executive of one country for the use of a Tribunal in that country. Each of the first two categories can be examined in turn.
As to the decisions of the International Criminal Tribunal for the former Yugoslavia, the appellants relied upon the decision of the Appeals Chamber in Prosecutor v Kunarac and subsequent Trial Chamber decisions which followed the Appeals Chamber. The accused persons in Prosecutor v Kunarac argued that rapes that they had committed did not fall within the definition of torture because their intention was "of a sexual nature". The Appeals Chamber rejected this submission.
The Appeals Chamber said that the Trial Chamber had adopted a definition of torture with reference to the Convention against Torture and the case law of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. The definition was described as having the following three elements: (i) the infliction, by an act or omission, of severe pain or suffering, whether physical or mental; (ii) the act or omission must be intentional; and (iii) the act or omission must be aimed at one of the matters provided in the Convention against Torture.
The text of Art 1 of the Convention against Torture, which the Appeals Chamber was explicating in the threefold definition, refers to "any act by which severe pain or suffering ... is intentionally inflicted". The threefold definition does not involve any element of oblique intention. It requires, as the third element, that the act be "aimed at" causing severe pain or suffering. This is a natural sense of intention. In a later passage in the Appeals Chamber's judgment it was said that, irrespective of the motive of the accused, their acts involved torture, since:
"In view of the definition, it is important to establish whether a perpetrator intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims."
This reference to the "normal course of events" does not appear to refer to the issue of intention in the third element of the definition. Instead, it appears directed to the first requirement, that the act inflicts pain or suffering. As Kiefel CJ pointed out during oral argument, this is a requirement of causation, not intention.
The second category of international sources relied upon by the appellants includes the Rome Statute and the Criminal Code, which were said to be evidence of opinio iuris for an international definition of intention for the purposes of torture. The text of the Rome Statute was drafted and circulated in 1998. It entered into force on 1 July 2002. Article 7(1)(f) of the Rome Statute provides that torture may constitute a crime against humanity. Article 7(2)(e) defines torture consistently with the Convention against Torture. However, Art 30(2)(b) defines intention for the purpose of the whole of the Rome Statute. That definition of intention includes oblique intention. It applies in relation to a consequence where the "person means to cause that consequence or is aware that it will occur in the ordinary course of events". The same definition of oblique intention is given in the definition of intention with respect to a result in s 5.2 of the Criminal Code. That section of the Criminal Code defines intention "with respect to a result" as arising "if he or she means to bring it about or is aware that it will occur in the ordinary course of events".
The definitions of intention in the Rome Statute and the Criminal Code do not establish an international law meaning of intention for the purposes of the Convention against Torture, which could then be transplanted to s 5(1) of the Migration Act. There is no evidence that the definitions in the Rome Statute and the Criminal Code were enacted to pick up the definition in the Convention against Torture. The definition in each is different from the approach taken by the Appeals Chamber in Prosecutor v Kunarac. In both cases, the definition applies to a wide range of offences. As for the Criminal Code, there is also the obvious difficulty in establishing international opinio iuris by reference to the practice of a single State actor.
Independently of the lack of any particular international law definition of intention, there is a further, insurmountable problem with transplanting the definition of intention in the Criminal Code to the Migration Act. This problem is the conscious choice about a definition of intention that was made in the Criminal Code but not made in the Migration Act. The insertion of the offence of torture in the Criminal Code occurred by amendments to the Criminal Code which entered into force on 14 April 2010. Prior to that time, the Crimes (Torture) Act 1988 (Cth) defined torture in s 3(1) as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person". Section 3(2) provided that, except so far as a contrary intention appeared, expressions used in the Act had the same meaning as in the Convention against Torture. Whatever the meaning of intention in the Convention against Torture, it is arguable that the meaning was altered by the operation of the particular Criminal Code definition of intention to offences generally from 15 December 2001. Certainly, when the offence of torture was substantially amended and relocated in the Criminal Code in 2010, the plain consequence was to provide for the inclusion of oblique intention as contained in the Criminal Code definition. In contrast, the enactment of the 2012 amendments to the Migration Act did not purport to apply the Criminal Code definition.
The different choice made concerning the definition of intention in the Migration Act cannot be said to have been due to a consensus, less than two years after application of the Criminal Code definition to torture, that the definition was so well established that it need not be set out in full. Indeed, when the definition of intention was inserted into the Criminal Code in 1995, it was recognised in the Explanatory Memorandum that the inclusion of awareness that an event will occur in the ordinary course of events was controversial. Two reasons given in the Explanatory Memorandum illustrate this controversy. One reason was that it was contrary to the approach taken by the House of Lords in three cases. In one of those cases, Lord Bridge of Harwich, with whom the other Law Lords agreed, said that the maxim that a person "is presumed to intend the natural and probable consequences" of his or her acts did not belong as part of the meaning of intention but was merely evidence from which an inference of intention might be drawn. The other reason for controversy was that the distinction between circumstances and consequences (ie results) is problematic at the margins. The words chosen in s 5.2 of the Criminal Code were adopted with reference to this controversy.
The ordinary meaning of intention in language and in law
It was common ground that, in the absence of any established meaning of intention in relation to torture in international law jurisprudence, the meaning of intention in s 5(1) of the Migration Act, read in context, must be its natural and ordinary meaning.
Some judgments of this Court have recognised or supported a concept of oblique intention. For instance, the appellants relied upon a passage in Vallance v The Queen where Dixon CJ approved the remarks of Professor Kenny that "in law it is clear that the word 'intention' ... covers all consequences whatever which the doer of an act foresees as likely to result from it". A similar observation was made by Menzies J. Later, in a joint judgment in R v Crabbe, which was also referred to by the appellants, this Court cited English academic writing and English judicial authority for the proposition that "on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur", although it was ultimately "unnecessary to enter upon that controversy".
Perhaps the most famous English academic support for this view was given by Glanville Williams. In an article relied upon by the appellants, advocating for the adoption of oblique intention, Williams suggested an example of a villain who blows up an aircraft in flight with a time-bomb, merely for the purpose of collecting on insurance. The villain's aim was not to kill the people on board although he knew that their deaths would be an inevitable side-effect. Williams postulated that while it was not the villain's aim or purpose to kill the people on board, it was possible for the law to say that he intended their deaths. However, even Williams recognised that oblique intention, as reflected in this example, is not the ordinary meaning of intention. Williams' argument was that the recognition of oblique intention was "a small departure" from the ordinary meaning of intention and "permissible on grounds of policy". Neither point should be accepted. First, as I explain below, the departure from ordinary language is not small. Indeed, Williams acknowledged that the extended meaning "does not always work satisfactorily" in some cases including, pertinently for these appeals, in relation to instances of mental stress. Secondly, even if there were some warrant to extend intention to a different concept by reference to some preferred policy, a transparent approach should be taken which recognises that the concept being employed is not intention at all. However, where a statute employs a term in its ordinary sense, there can be no warrant for the extension of the meaning beyond its ordinary sense.
Other instances of support for oblique intention in this Court can arguably be seen in Bahri Kural v The Queen, and can be seen in Peters v The Queen. In Bahri Kural, Mason CJ, Deane and Dawson JJ said that intention to import a drug "is established" if (i) an accused intended to bring an article into Australia, and (ii) the accused knew that the article contained narcotic drugs. It is possible to treat (ii) as just a circumstance from which intention is inferred rather than recognition of oblique intention. However, the decision of McHugh J (with whom Gummow J agreed) in Peters is an unequivocal recognition of oblique intention. The appellants relied upon a passage where his Honour said that:
"If a person does something that is virtually certain to result in another event occurring and knows that that event is certain or virtually certain to occur, for legal purposes at least he or she intends it to occur."
Despite the support for oblique intention that was identified by the appellants in academic writing and various judgments in this Court the concept should not be accepted as the ordinary meaning of "intention". For three reasons, the better approach is to recognise that where intention is used in its ordinary sense it bears its ordinary meaning. If another concept is relevant then the word "intention" would be better avoided. It will often only engender confusion for the same word to be used to embrace that which Bentham described by the misnomer "oblique intention", and which the appellants described as "indirect intention".
The first reason why oblique intention should be regarded as invoking a concept different from intention is that the recognition of oblique intention as a form of intention has often proceeded from the false assumption that a person can intend an undesired consequence. For instance, in Peters, McHugh J reached the conclusion that intention includes oblique intention because he considered that "a person may intend to do something even though it is the last thing that he or she wishes to bring about". In oral submissions, the appellants therefore asserted that intention could arise at two levels, either in respect of a result that is desired or in respect of one that is undesired, but is likely to occur. The argument that oblique intention is just an example of an intention about something undesired initially appears attractive. But it suffers from the flaw of conflating two different, although overlapping, senses of desire. A person can desire a consequence in the sense of volitionally choosing it. Or a person can desire a consequence in the sense of emotionally wanting it. Hence, a person who boards a plane from London to Manchester can still have a desire, in the sense of volitional choice, to travel to Manchester even if "Manchester is the last place he wants to be and his motive for boarding the plane is simply to escape pursuit". Another example is an accused who "sets fire to his enemy's house so as to spite the enemy even though he regrets the destruction of the house because it is a masterpiece of period architecture". The accused desired to destroy the house in the sense of volitionally choosing that outcome, even though he did not desire it in the sense of emotionally wanting it.
The second reason why "oblique intention" should not be treated as intention is that it can lead to an absurd and unnatural use of the word "intention". For instance, a person who buys a lottery ticket will be aware that success is highly unlikely, or that in the ordinary course of events the person's ticket will not be successful. But no-one would speak of the person intending to be unsuccessful. Professor Finnis gives an example of a woman who decides to give testimony at her brother's trial although "acutely conscious of her uncontrollable stutter". She intends to give evidence but no-one would say that she intends to stutter. She does not choose, or desire, to do so.
The third reason for eschewing oblique intention as a type of intention is that despite the authority in this Court which has recognised it, there is also substantial authority which has cast doubt upon whether oblique intention is really intention at all. For instance, in Vallance v The Queen, Taylor J contrasted a "result foreseen as a not unlikely consequence" with "actual intent". In Giorgianni v The Queen, Wilson, Deane and Dawson JJ suggested that where it is sufficient that an act is done with foresight of its probable consequences, then it may be that such "intent may more properly be described as a form of recklessness". And in perhaps the most illuminating passage, Windeyer J said in Vallance v The Queen:
"The probability that harm will result from a man's acts may be so great, and so apparent, that it compels an inference that he actually intended to do that harm. Nevertheless, intention is a state of mind. The circumstances and probable consequences of a man's act are no more than evidence of his intention. For this reason this Court has often said that it is misleading to speak of a man being presumed always to intend the natural and probable consequences of his acts. And this, I do not doubt, is so. Because intent is a state of mind, it becomes necessary to ask what is that state of mind; what for the purposes of the criminal law is comprehended in the idea of an intentional act. Under the law apart from the Code, an accused would be guilty of unlawfully wounding if his actual purpose was to inflict a wound: he would also be guilty if, without any actual purpose to wound anyone, but foreseeing that what he was about to do was likely to cause a wound to someone, he yet went on to do it. The common law treats what was done recklessly, in that way, as if it had been done with actual intent. It says that a man, who actually realizes what must be, or very probably will be, the consequence of what he does, does it intending that consequence. The word 'intentional' in the Code carries, I think, these concepts of the common law. I therefore do not read s 13 as altering these principles. It is, I may add, in my view undesirable to insist upon desire of consequence as an element in intention. There is a risk of introducing an emotional ingredient into an intellectual concept. A man may seek to produce a result while regretting the need to do so."
In this passage Windeyer J made several points which should be reiterated and affirmed as a summary of the discussion so far. First, the foresight of consequences which is the basis for "oblique intention" is not intention at all. It is only evidence from which an inference can be drawn of intention, in the sense of meaning for some result to occur or having that result as an aim or purpose. Secondly, there are instances where the common law treats recklessness as if it were intention. The law does itself no credit by deeming one concept to be another. Thirdly, there is a danger which can be caused by a focus on desire. This danger is that desire is a concept which can be understood in either an emotional sense or a volitional sense. When desire is used as a synonym for intention then it ought to be used in the sense of volitional desire or, in other words, the person's aim or purpose.
The ordinary meaning of intention was considered in Zaburoni. In that case, Kiefel, Bell and Keane JJ quoted, with approval, the approach of Connolly J in R v Willmot (No 2) that the ordinary and natural meaning of the word "intends" is "to mean, to have in mind", and that dictionary definitions show that "what is involved is the directing of the mind, having a purpose or design". As their Honours explained, this meaning of intention is different from the knowledge that conduct "will probably produce a particular harm". They explained that when asking whether a person had unlawfully transmitted a serious disease with intent to do so, the meaning of intention made irrelevant concepts of foreseeability, likelihood and probability. To prove an intention to produce a particular result, by the ordinary meaning of intention, it is necessary to establish that the accused meant to produce that result by his or her conduct.
Although considerable weight was placed on Zaburoni by the first respondent in argument that decision is only relevant to these appeals as an illustration of what the ordinary and natural meaning of intention has always been. The decision, which concerned the meaning of intent in s 317(b) of the Criminal Code (Q), cannot be an authority which affects the construction of different legislation enacted years earlier. Further, the legitimacy of "oblique intention" as part of the concept of intention was not in issue in Zaburoni. The Crown did not argue on that appeal that Mr Zaburoni had an intention to transmit the human immunodeficiency virus ("HIV") because Mr Zaburoni had oblique intention arising from a choice to have unprotected sexual intercourse with the foresight that the act of unprotected sexual intercourse would cause HIV. Apart from the lack of any evidence about Mr Zaburoni's foresight of the possibility of HIV, the statistical evidence was that there was a 14 per cent risk of transmission, not that it was a certain result which had been foreseen.
The appellants' submission that the ordinary or natural sense of intention includes "oblique intention" should not be accepted. In ordinary or natural language, oblique intention is not intention at all. Nor should it attract that label in law. The same ordinary meaning applies in s 5(1) of the Migration Act. The application of the ordinary meaning of intention to these appeals, therefore, would ask whether a person (the relevant Sri Lankan official) will mean to produce a particular result such as the severe pain or suffering which is an element of the definition of cruel or inhuman treatment or punishment.
The decisions below
Both appeals concerned decisions by the Tribunal to affirm the decisions of delegates of the Minister to refuse protection visas to each appellant under s 65 of the Migration Act. In each case, the appellant submitted to the Tribunal that a protection visa should be granted because there was a real risk that he would suffer significant harm if removed to Sri Lanka. The risk of significant harm was said to arise because of the treatment in Sri Lanka of citizens who departed contrary to Sri Lankan laws. The appellants submitted that this treatment would amount to torture or to "cruel or inhuman treatment or punishment" as those terms are defined in s 5(1) of the Migration Act.
In SZTAL's case, the Tribunal accepted that since November 2012 all returnees who left Sri Lanka illegally had been arrested after their return. They were held on remand and then charged with an offence under the Immigrants and Emigrants Act 1945 prior to being bailed.
The Tribunal found that SZTAL would be remanded for a short period of time of between one night and several nights, and possibly up to two weeks. As to the treatment during remand, the Tribunal referred to country information which indicated that prison conditions in Sri Lanka did not meet international standards, with concerns of "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". The Tribunal quoted from a former United Nations Special Rapporteur on Torture, cited by the United States Department of State, who reported that "the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources". The Tribunal also referred to a press report which quoted returnees who said that they "slept on the floor in line" with their "bodies pressed up against each other", that they "could not roll over", and that some nights they had to take turns sleeping due to lack of space.
The Tribunal described how Sri Lankan authorities have acknowledged the poor prison conditions but said that a lack of space and resources has inhibited reform. The Tribunal cited a call by the President of Sri Lanka for "an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases", as well as plans to construct and expand several prisons in partnership with the International Committee of the Red Cross.
The Tribunal determined that a "relatively short period of remand" did not amount to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted, nor did it amount to an act which could reasonably be regarded as cruel or inhuman. The Tribunal reiterated the requirement for intentional infliction of cruel or inhuman treatment or punishment or degrading treatment or punishment and said that "[m]ere negligence or lack of resources does not suffice". The Tribunal continued:
"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."
The reasons, and decision, of the Tribunal in SZTGM's case, including the information referred to by the Tribunal and the reasoning of the Tribunal, were relevantly identical.
Both SZTAL and SZTGM sought review of the Tribunal's decisions in the Federal Circuit Court. One submission for the appellants was that the Tribunal had misconstrued the meaning of "intention" in s 5(1) of the Migration Act. Both applications were dismissed. The primary judge in the Federal Circuit Court in SZTAL v Minister for Immigration and Border Protection held that the phrase "intentionally inflicted" required the existence of an actual, subjective intention on the part of a person to bring about the suffering by his or her conduct. Therefore, the Tribunal did not err by failing "to consider whether the Sri Lankan authorities had the necessary intent because they foresaw the consequences of their actions". This reasoning was incorporated by the same primary judge in his reasons in SZTGM v Minister for Immigration and Border Protection.
Both appellants appealed to the Federal Court. The appeals were heard together, with a third appeal, by the Full Court (Kenny, Buchanan and Nicholas JJ). The Full Court dismissed the appeals. In a joint judgment, Kenny and Nicholas JJ held that "intention" in s 5(1) of the Migration Act bore its natural and ordinary meaning of "actual subjective intention by the actor to bring about the victims' pain and suffering by the actor's conduct". Their Honours observed that the primary judge was correct to dismiss the applications for review because the Tribunal had treated "intentionally inflicted" as requiring an "actual subjective intention to cause the relevant harm" irrespective of whether the authorities foresaw the consequences of their actions. The third member of the Full Court, Buchanan J, dismissed the appeals on the basis that the Tribunal had found that the level of harm did not meet the physical or mental elements of the definitions. The first respondent did not bring any notice of contention seeking to dismiss each appeal from the decision of the Full Court of the Federal Court on the basis that the Tribunal had found that the physical element of the definition was not satisfied.
The approach to intention applied by the Tribunal
The primary submission of the appellants in the Full Court of the Federal Court had been that the approach the Tribunal should have taken was to ask whether the actor knows or is aware that pain or suffering will be inflicted by the act or omission "in the ordinary course of events". For the reasons explained above, the Full Court correctly rejected that submission.
Although the appellants maintained that submission in this Court, their submission in this Court was more nuanced. The appellants' ground of appeal in this Court was that the Full Court erred by requiring the "actual, subjective, intention" to be one which cannot be proved merely by the actor's knowledge of the consequences of his or her intended acts or omissions, no matter how certain that knowledge may be. The appellants' submission was effectively that intention could include circumstances where knowledge of (ie belief in) the future consequences of a voluntary act reaches a sufficient degree of certainty. Hence, they submitted that the Full Court and primary judge both erred by failing to apply the correct test. This submission of the appellants requires the recognition of "oblique intention" as a legitimate and ordinary use of intention. For the reasons I have explained, that submission cannot be accepted.
The appeals must therefore be dismissed. The Full Court was correct that the Tribunal was required only to consider intention as meaning an "actual, subjective, intention". It was not sufficient for that intention to be proved by oblique intention. Foresight of consequences, especially with a high degree of perceived likelihood, is a matter from which intention can be inferred. But it is not part of the definition of intention. The appellants could only have established "intention" within par (a) of the definition of "cruel or inhuman treatment or punishment" in s 5(1) of the Migration Act if the Tribunal accepted that a relevant Sri Lankan official acted in a way meaning, in the sense of having as an aim or purpose, that "severe pain or suffering, whether physical or mental" would be inflicted. This conclusion was rejected by the Tribunal.
Orders
The appeals should be dismissed. In each matter the appellant should pay the costs of the first respondent.