Australian Immigration Daily News

Under what circumstances will Australia's protection obligations be “enlivened” under the Convention relating to the Status of Refugess (1951) (“the Refugees Convention”)?

Is it enough for a person to show that she/he is at risk of any period of detention at all if she/he were to return to her/his country of nationality or habitual residence?  In other words, can the simple possibility that a person may be detained for a period of time constitute “serious harm” within the meaning of the Migration Act, sufficient to warrant the grant of a protection visa?  Or is it necessary for there to be a more “granular” assessment of the circumstances relating to the circumstances that are feared by the claimant, and to analyse issues such as the frequency, length or conditions of the threatened detention in order to support a finding that the person will be subject to “serious harm”? And what if the person is taken into detention in an arbitrary manner, without regard to the procedural safeguards that must be observed in Australia and other Western countries?

These issues came before the High Court of Australia for consideration in two companion cases that were decided at the end of June of this year, Minister for Immigration and Border Protection v WZAPN and WZARV v Minister for Immigration and Border Protection  (2015) HCA 22 (17 June 2015).

Under section 36(2) of the Migration Act, it is a basic criterion for the grant of a protection visa that the applicant be a person to whom Australia has protection obligations under the Refugees Convention as it has been amended by the “Protocol relating to the Status of refugees (1967). Under Article 1A(2) of the Protocol, the Refugees Convention applies to any person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside their country of nationality or habitual residence, and due to their fear of persecution, is unable or unwilling to return.

Section 91R (b) of the Migration Act provides that the Refugees Convention, as amended by the Protocol, does not apply in Australia unless it can be demonstrated that the persecution involves “serious harm to the person”.  In turn, section 91R (2) includes a “non-exhaustive” list of the circumstances that are considered to involve “serious harm”. This list of serious harm includes, at 91R (2) (b) (a), “a threat to the person's life or liberty”.

The question of the High Court in these cases was thus whether any threat to a person's liberty that arises due to persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion is, by definition, “serious harm” under any circumstance that compels the grant of a protection visa. 

The facts of the two cases were as follows:

The applicant in WZAPN was a young man who was a stateless Faili Kurd who had formerly lived in Iran. It was his claim that he had suffered many instances of detention and interrogation at the hands of the “Basij”, described as a paramilitary force of vigilantes whose activities are tolerated by the government of Iran. It was asserted that the claimant had been detained as many as 30 – 40 times, with the longest period of detention lasting 48 hours and the other periods of detention being shorter than 12 hours. There was no evidence that the claimant had been physically harmed while he was held in detention, although he had been subjected to “extreme verbal abuse”.

An “Independent Merits Reviewer” who evaluated the applicant's case came to the conclusion that the applicant should not be recognised as a person to whom Australia owed protection obligations, and that he was not entitled to a protection visa. It was the Reviewer's opinion that even though there was a “real chance” that the applicant would be detained “for short periods” if he failed to produce identification documents, the frequency and length of detention that he would experience, and the treatment he would receive while in detention, would not amount to “serious harm”.

The case came before the Federal Court before it reached the High Court. At the Federal Court level, Judge North of took a different view of the matter than the one adopted by the Independent Merits reviewer. It was Judge North’s view that section 91R should be interpreted in light of “international human rights” standards, and that if it is determined that a person has suffered detention on grounds that are not based on, and carried out in accordance with procedures based on law, and if the detention(s) has been arbitrary, then there is no need for a “qualitative assessment” of factors such as the frequency, length or conditions of the detention or the consequences of the detention on the detainee. The mere fact of the detention in such a manner was, in Judge North's opinion, reason enough to find that similar instances of future detention would result in “serious harm” to the claimant.

The second of the two companion cases, WZARV, involved a claimant who arrived in Australia by boat. This claimant asserted that he was of Tamil ancestry. He based his claim of fear of persecution on assertions that he had been forced to do a day of training with the Liberation Tigers of Tamil Eelam (commonly known as the “Tamil Tigers”); that he had worked as a security guard for the United Nations High Commissioner for Refugees, and for a non-governmental organisation, the Swiss Foundation for Mine Action.  He claimed, and an Independent Merits reviewer accepted, that he would be subject to being interviewed at the airport by Sri Lankan authorities for several hours upon his return. When his case reached the level of the Federal Court, the claimant asserted that the feared period of detention at the airport in Sri Lanka would constitute “serious harm”.

The High Court rejected the interpretation of the Migration Act that was favoured by Judge North of the Federal Court in his decision in WZAPN. The Court, taking into account matters such as the legislative history of the Act,  previous interpretations of the legislation by the High Court, court cases from overseas, and academic articles, concluded that a violation, of a human right (such as the right to liberty), is not enough, in and of itself, to give rise to a finding that there has been or will be “serious harm” such as would warrant the grant of a protection visa. 

In the opinion of the High Court, therefore, not every circumstance of detention will support a claim of “serious harm”. To put it another way, the mere fact of detention, will not, by definition, result in a conclusion of “serious harm”. Rather, it is the Court's view, as expressed in this judgment, that there must be a “qualitative assessment” in each case about “the likely circumstances of the loss of liberty feared by the claimant”. The Court's decision requires that an assessment be made concerning the “nature and gravity of the loss of liberty” that would be suffered by the claimant. The mere fact that a person might be detained is not alone sufficient to lead to a finding of “serious harm” and a conclusion that the person has demonstrated an entitlement to a protection visa.  In the words of the Court, the legislative history of the Act indicates that the simple fact that the claimant for a protection visa would be detained cannot be considered in isolation and “apart from the severity of the circumstances”.

To summarise: the recent decision of the High Court stands for the proposition that a person will not be able to demonstrate eligibility for a protection visa simply by providing evidence that they would be at risk of being detained upon return to their home country by reason of their race, religion, nationality, membership of a particular social group or political opinion.  More must be demonstrated – for example, that the person would be detained for a long period of time, or detained repeatedly, or would be subject to harsh and severe conditions while they are in detention, or would suffer identifiable harm as a result of being detained.  Under the HIgh Court’s decision,  detailed evidence concerning these matters will need to be assembled and put forward in support of a claim for a protection visa.

The High Court’s decision does not appear to directly answer the question of whether the “arbitrary” detention of a person in violation of international standards of human rights – in other words, the arrest and detention of a person without a proper legal basis, for example where the person has not committed any offence and is detained solely on the basis of the person’s race, religion, etc – would be enough, by itself, to amount to the type of “serious harm” that would support the grant of a protection visa. It does seem from the Court’s decision that the threat of being subject to this type of arbitrary detention might notalone be sufficient basis to support a claim for a protection visa. Again, the High Court’s ruling does clearly indicate that factors such as the length of threatened detention and the conditions that the claimant may suffer while in detention must be evaluated and shown to be sufficiently severe that the claimant will be at risk of suffering “serious harm” as a consequence of the detention.

Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837