WZARV v Minister for Immigration and Border Protection

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].)

High Court Judgment [2015] HCA 22 17 June 2015
Result Appeal dismissed
High Court Documents WZARV
Full Court Hearing [2015] HCATrans 80  15 April 2015
Special Leave Hearing No hearing: SL granted on the papers 24 February 2015
Appeal from FCA [2014] FCA 894 22 August 2014
Trial Judgment, FCCA [2014] FCCA 1556 14 October 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.

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