Minister for Immigration and Border Protection v WZAPN

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.

High Court Judgment [2015] HCA 22 17 June 2015
Result Appeal allowed
High Court Documents WZAPN
Linked Case WZARV
Full Court Hearing [2015] HCATrans 80  15 April 2015
Special Leave Hearing [2015] HCATrans 26  13 February 2015
Appeal from FCA [2014] FCA 947 3 September 2014
Trial Judgment, FMCA
[2013] FMCA 6 31 January 2013
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.