The High Court has unanimously dismissed an appeal from a single judge decision of the Federal Court on the meaning of serious harm relevant to refugee status, and whether the recent judgment in WZAPN on that question applies here. WZARV is a Sri Lankan Tamil who claims that on being returned to Sri Lanka he will be detained and questioned about his suspected support of the Tamil Tigers (the LTTE) and that this deprivation of liberty would constitute serious harm within the meaning of s 91R of the Migration Act 1958 (Cth). The independent reviewer concluded that this detention would only last a few hours and thus would not constitute serious harm. WZARV contended that North J’s conclusion in WZAPN that the independent reviewer should not take a qualitative approach to evaluating a threat to liberty should apply here.

The Court (French CJ, Kiefel, Bell and Keane JJ, Gageler J agreeing) held that s 91R required a qualitative approach to evaluating a threat to liberty, relying on textual considerations (the use of the umbrella term ‘serious harm’ in s 91R, and the listing of threats to liberty alongside other qualitative harms, notably ‘significant physical harassment’) and absence of contrary contextual considerations (rejecting the claimants’ readings of earlier High Court decisions, academic writing and the Refugees Convention). Justice Gageler added that, while it was correct to regard arbitrary detention as a threat to liberty, it was nevertheless necessary to take account of the nature and degree of that interference ([99].)