Minister for Immigration and Border Protection v WZAPN & Anor; WZARV v Minister for Immigration and Border Protection [2015] HCA 22: Temporary Detention

The High Court has handed down its decision today (17 June 2015) in the case of Minister for Immigration and Border Protection v WZAPN & Anor; WZARV v Minister for Immigration and Border Protection [2015] HCA 22, where it unanimously allowed an appeal from the Federal Court. The High Court ruled that the likelihood of a period of temporary detention for a reason mentioned in the Refugees Convention does not constitute a threat to liberty within the meaning of the Migration Act 1958.

Background to the Case

WZAPN and WZARV had both claimed refugee status upon arrival in Australia. WZAPN was denied refugee status by a refugee status assessment in 2010. The Independent Merits Reviewer reviewed the decision and found that the real chance of a short period of detention upon returning to Iran did not constitute serious harm to WZAPN for the purposes of the Act. WZAPN's appeal to the Federal Court was allowed on the basis that the threat of a period of detention constitutes serious harm whatever the severity of the consequences for liberty. The Minister of Immigration was granted special leave to appeal to the High Court following this decision.

WZARV was also denied his refugee status in 2011 by a refugee status assessment officer. The Independent Merits Reviewer also found in this instance that WZARV was likely to be detained by Sri Lankan authorities upon arrival at the airport but that it is usual for such questioning to be completed in a matter of hours. WZARV appealed to the High Court on the basis that this finding of the IMR was inconsistent with the Federal Court’s finding in the aforementioned case. He argued that IMR had erroneously concluded that he did not face serious harm upon return to Sri Lanka.

High Court Decision

The High Court rejected the argument that temporary detention, on its own, constituted a serious threat to liberty in accordance with the Act. It ruled that whether a risk of the loss of liberty constitutes “serious harm” requires a qualitative evaluation of the nature and gravity of the potential loss of liberty. 

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Minister for Immigration and Border Protection v WZAPN & Anor; WZARV v Minister for Immigration and Border Protection [2015] HCA 22