The High Court has unanimously allowed an appeal from a single judge decision of the Federal Court on the meaning of serious harm relevant to refugee status. WZAPN, a stateless Faili Kurd, had been questioned, detained for short periods, and verbally abused multiple times by the Iranian police and the Basij (an Iranian paramilitary force). Section 91R of the Migration Act 1958 (Cth) provides that persecution must involve (inter alia) ‘serious harm’ to the person. The independent migration reviewer accepted there was real chance that this would continue but held that the frequency of detention and treatment in detention did not amount to ‘serious harm’. North J held that the assessment officer fell into jurisdictional error in making a qualitative assessment of the nature and degree of harm when asking if the threat to WZAPN’s liberty was ‘sufficiently significant’: [45]. North J also held that WZAPN had been denied procedural fairness because the reviewer had determined that WZAPN’s detention was due to the application of a legitimate national objective of Iran without alerting WZAPN to the information on which that finding was based (at [75]).

The High Court issued reasons jointly with its resolution of WZARV v Minister for Immigration and Border Protection. In addition to its holding that s 91R required a qualitative determination of any threat to liberty, the Court (French CJ, Kiefel, Bell and Keane JJ, Gageler J agreeing) held that WZAPN was not denied procedural fairness, because the reviewer’s determination that any detention by the Iranian government would be appropriate was not necessary to its rejection of WZAPN’s claim, given that the reviewer had already found that such detention would not be discriminatory.