VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, KIRBY, CALLINAN AND HEYDON JJ

VBAO APPELLANT

AND

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS

AFFAIRS & ANOR RESPONDENTS

VBAO v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 60

14 December 2006

M81/2006

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

R M Niall with C G Fairfield for the appellant (instructed by Arnold Bloch Leibler)

P J Hanks QC with C J Horan for the first respondent (instructed by Clayton Utz)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

VBAO v Minister for Immigration and Multicultural and Indigenous Affairs

Immigration – Refugees – Well-founded fear of persecution – Section 91R(1) of the Migration Act 1958 (Cth) required that persecution involve "serious harm to the person" – Serious harm defined to include "threat to the person's life or liberty" – Whether "threat to the person's life or liberty" referred to likelihood of death or deprivation of liberty, or communication of intention to kill or deprive of liberty – Whether expression of intention to harm sufficient to constitute "serious harm".

Immigration – Refugees – Application for protection visa – Whether Refugee Review Tribunal made findings of fact favourable to the appellant so as to call into operation s 91R of the Migration Act 1958 (Cth).

Words and phrases – "threat", "threat to the person's life or liberty", "serious harm".

Migration Act 1958 (Cth) s 91R(1)(b), (2).

1. GLEESON CJ AND KIRBY J. Depending upon context, the word "threat" can mean a communication of an intention to harm, or it can mean a likelihood of harm. The word has other meanings as well, but those are the two possibilities of present relevance. Where the word has the second of the two meanings mentioned, a communication of an intention to harm might be some evidence of a likelihood of harm, but, if there is an issue about the matter of threat, the question to be decided concerns the existence of the likelihood of harm. 2. The immediate context of present relevance is s 91R of the Migration Act 1958 (Cth) ("the Act"). The wider context is the whole Act and the provisions of the Refugees Convention referred to in s 91R. In deciding whether a person has a well-founded fear of persecution if sent or returned to a particular place, and whether, on that account, the person is entitled to a protection visa, the decision-maker is directed by s 91R that Art 1A(2) of the Convention does not apply in relation to persecution unless the persecution involves serious harm to the person. Section 91R(2)(a) gives, as an instance of serious harm, a threat to the person's life or liberty. The serious harm in question, by hypothesis, is future harm. Elsewhere in sub-s (2) of s 91R, the word "threatens" appears three times in a context where, clearly, it bears the second of the two meanings mentioned earlier. 3. Both the immediate and the wider context make it plain that, in s 91R(2)(a), "threat" is used in the second sense. A past communication of an intention to harm a person may, or may not, be some evidence that there is a likelihood of future harm to the person's life or liberty, but the question for the decision-maker is whether there is such a likelihood. The decision-maker is required to consider future persecution that involves serious harm, and one instance of such serious harm is a threat to life or liberty. The decision-maker is to decide the risk of future harm, not the risk of future communications. This accords with the view of s 91R(2)(a) that was taken by Marshall J in the present case, and by Crennan J in VBAS v Minister for Immigration and Multicultural and Indigenous Affairs[1]. 4. For that reason, and for the reasons given by Callinan and Heydon JJ concerning the findings of fact made in the present case, the appeal should be dismissed with costs. 5. GUMMOW J. The appellant seeks in this Court orders effecting the reinstatement of his success before the Federal Magistrates Court (Walters FM). That Court, by order made 14 May 2004, declared invalid and of no effect the decision of the second respondent ("the RRT") which had affirmed the decision of a delegate of the first respondent ("the Minister"). The Minister had refused the grant of a protection visa, deciding that the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention and so failed to meet a criterion stipulated by s 36(2) of the Migration Act 1958 (Cth) ("the Act"). The construction of another provision of the Act, s 91R, was at the centre of the litigation. 6. The Federal Court of Australia (constituted by Marshall J) allowed the appeal by the Minister against the decision of the Federal Magistrate and dismissed the application made to the Federal Magistrates Court for review of the decision of the RRT. 7. Marshall J construed s 91R in a fashion which the appellant seeks to controvert in this Court. The Minister supports the construction given the provision by the Federal Court and further, by a notice of contention, submits that, if the construction proffered by the appellant (adopting that of the Federal Magistrates Court), be correct, the Federal Magistrates Court erred in the construction it placed upon the factual findings made by the RRT. 8. The appellant had relied upon particular assaults and threatening telephone calls and letters. In their joint reasons for judgment, Callinan and Heydon JJ explain that the Federal Magistrates Court did proceed upon a misunderstanding that the RRT had made findings of fact favourable to the appellant calling for the application of s 91R of the Act. I agree with what their Honours say on that subject. 9. That conclusion is sufficient to support the dismissal of the appeal to this Court. However, in view of the arguments that were pressed upon the question of construction, it is appropriate to go on to deal with that aspect of the appeal. 10. Section 91R was introduced into the Act by the Migration Legislation Amendment Act (No 6) 2001 (Cth) ("the Amending Act"). Paragraphs 17, 18 and 19 of the Explanatory Memorandum on the Bill for the Amending Act, circulated by the authority of the then Minister, stated: