By Craig Over
In Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection  HCA 22, the High Court of Australia ruled that, under the Migration Act 1958 (Cth),‘a threat to the person’s life of liberty’ does not include episodes of temporary detention. Coincidentally, this decision arrived during Refugee Week celebrations in May. Section 91R of the Migration Act 1958 (Cth) sets out the legislative regime under which a foreign national or a stateless person may seek the protection of Australia. It is the Commonwealth Parliament’s response to its obligations under Article 1A(2) of the Refugees Convention.
Born in Iran, the first claimant, WZAPN, is a stateless Faili Kurd seeking to escape persecution at the hands of the Basij, a paramilitary force of vigilantes. The second claimant, WZARV, is a Sri Lankan citizen who came to Australia by boat seeking protection. WZARV claimed that he was detained on numerous occasions by Sri Lankan forces, was forced to undertake a day’s training with the Liberation Tigers of Tamil Eelam and was injured by a bomb explosion. In both instances the Independent Merits Reviewer did not consider that the claimants fell under the description of persons to whom Australia owed protection obligations. Both made claims for protection under section 91R(2)(a), and while arising out of different factual circumstances, the High Court determined to hear the matter simultaneously, because they essentially dealt with identical questions of law. The appeal was allowed for the first claimant, WZAPN, however, the Court dismissed the second claimant’s appeal.
As stated by the Court, the question for determination in this case was:
whether the likelihood of future episodes of temporary detention constitutes a threat to liberty within s 91R(2)(a) of the Act, irrespective of the circumstances and consequences of that detention for the person seeking refugee status.
In other words, the High Court questioned whether temporary detention constitutes ‘serious harm’ for the purposes of section 91R(1)(b). The claimants argued in the affirmative and, notwithstanding the ‘frequency, length or conditions of that detention and its consequences for the detainee’, they both argued that detention alone necessarily constitutes serious harm.
The High Court declined to accept that the loss of liberty, within the meaning of the Act, could involve relatively short periods of detention. Instead it posited that to suggest such a construction would invite a comparative exercise ‘between the loss of liberty in a comprehensive sense and a temporary diminution in the enjoyment of some aspect of liberty.’ The High Court favoured a qualitative approach where a decision-maker is required to make an assessment which ‘will include an evaluation of the nature and gravity of the loss of liberty.’ Their Honours continued:
Whether the likelihood of detention in any case rises to the level of serious harm instanced by s 91R(2)(a) is a question which invites a consideration of the circumstances and consequences of that detention.
Their Honours also observed that temporary and spontaneous detention would fall more naturally under 91R(2)(b): ‘significant physical harassment of the person;’ a provision which also requires ‘a decision-maker to consider the gravity and frequency of the incidents in which harassment is said to have occurred: that task is indisputably one of fact and degree.’ In concluding the High Court stated that:
Both the Convention and s 91R of the Act embody an approach which is concerned with the effects of actions upon persons in terms of harm to them. That approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence.
This case is significant for legal practitioners and governmental personnel working in the Department of Immigration and Border Protection, but more poignantly those who, both within and outside detention facilities, are seeking Australia’s protection. The manner and method, however, by which Australia meets its international obligations, and more broadly, its moral obligations, in respect of immigration is undoubtedly a controversial issue. Nevertheless, how Australia does this is a matter for the Parliament and ultimately, the Australian community. By closely examining the words of the statute and the context through which it was enacted, the High Court gave effect to the parliamentary intention. That, it seems here, is to narrow the eligibility of those who might seek Australian protection.
Craig Over, ‘The Meaning of Temporary Detention in the Migration Act’, Law and Justice, 6 July 2015 (La Trobe Law School Blog,http://law.blogs.latrobe.edu.au/)