Federal Court: In SZTAL, the plurality of the HCA held that "the intent requirement in relation to significant harm will only be satisfied if the perpetrator has an “actual, subjective, intention” to cause pain or suffering and that “knowledge or foresight of a result is not to be equated with intent”". However, can it be said that "evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention and in some cases the degree of foresight may render the inference compelling"?
This Federal Court (FCA) decision includes the following passage:
22 In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 the Tribunal found that if the appellants were returned to Sri Lanka, their country of origin, and arrested and charged under the laws of that country because they had left it illegally, they would likely be held in remand for a short period. The Tribunal also accepted that prison conditions in Sri Lanka were poor and may not meet international standards by reason of matters such as overcrowding, poor sanitary facilities and limited access to food. It was argued that a Sri Lankan official, to whom knowledge of prison conditions could be imputed, could be said to intend to inflict severe pain or suffering on the appellants or intend to cause them extreme humiliation by sending them to prison because the official must be taken to be aware of the prison conditions. The plurality of the High Court held at [27] that the intent requirement in relation to significant harm will only be satisfied if the perpetrator has an “actual, subjective, intention” to cause pain or suffering and that “knowledge or foresight of a result is not to be equated with intent”...
However, can it be said that "evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention and in some cases the degree of foresight may render the inference compelling"?
The FCA answered that questions as follows: