The parties' submissions
15 With one exception, the submissions made in this appeal were the same as in the appeals in SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41, which were argued at the same time and in which judgment is given at the same time. There is, therefore, a very substantial overlap in both the submissions and in our consideration of those submissions in each appeal. The exception to which we have referred is in relation to the submission noted at [44] of the present reasons for judgment and our noting of that submission at [157] below.
16 The appellant submitted that the critical issue in the appeal was whether North J correctly held in WZAPN that a "threat to the person's life or liberty" within the meaning of s 91R(2)(a) of the Migration Act, couched as it was in absolute terms, meant that such a threat necessarily constituted "serious harm".
17 If his Honour's approach was correct, then in the context of the present case, the appellant submitted, a qualitative assessment by the Tribunal as to the severity of the consequences of arrest and detention was indicative of jurisdictional error. Reference was made to [37] of the Tribunal's reasons, set out above.
18 The appellant submitted that the interpretation of s 91R(2)(a) in WZAPN was consistent with the ordinary meaning of the statute. First, only s 91R(2)(a) was couched in absolute terms. Secondly, unlike physical harassment, physical ill-treatment and economic hardship, each of which must be "significant", there must only be a threat to liberty. Thirdly, this interpretation was consistent with common law principles, citing arrest and imprisonment as "grave interference with the rights of the individual". The appellant submitted there was also a strong line of authority in support of this interpretation cited in WZAPN at [33]-[34], including Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) and Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 (Ibrahim).
19 The balance of the appellant's written submissions were in reply to the Minister's written submissions and it is therefore convenient next to summarise the Minister's submissions.
20 The Minister submitted that the construction of s 91R in WZAPN was not correct as:
(a) the existence of a real chance that a person will be detained for a Convention reason did not necessarily mean that the person had a well-founded fear of being persecuted within the meaning of Art 1A(2) of the Convention;
(b) ss 91R(1) and 91R(2) were intended to reflect the meaning of persecution in the Convention which had always required a qualitative assessment of the nature of any harm claimed; and
(c) for the purpose of s 91R(2)(a), a decision-maker was required to undertake a qualitative analysis of the kind of detention feared (including considering its length, purpose and attendant conditions) to determine if the feared detention rises to the level of a "threat to liberty".
21 The Minister submitted that while persecution was not defined in the Convention, it was generally accepted that not all harm, even if perpetrated for a reason mentioned in the Convention, will amount to persecution. In order to do so, the harm must rise above a threshold of severity. In many jurisdictions and academic writings, that threshold was identified as the level of "serious harm". The Minister referred to Chan at 429-430; Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 (Chen) at [24]-[25]; Ibrahim at [55]-[65]; Islam v Secretary for the Home Department [1999] 2 AC 629 at 653; Mikhailevitch v Immigration and Naturalization Service 146 F. 3d 384 (6th Cir 1998) (Mikhailevitch) at 389-390; Price, Rethinking Asylum: History, Purpose and Limits (Cambridge University Press, 2009) (Price) at pages 104, 107-8, 116-7; and Hathaway, The Law of Refugee Status (Butterworths, 1991) at page 105.
22 The Minister submitted that the conclusion in WZAPN, that any period of detention, however isolated or short, necessarily constituted persecution involved an a priori assumption that a real chance of detention (irrespective of its character) was necessarily more serious than a real chance of being a victim of physical or other forms of harm which would constitute persecution only if they rose to the level of serious harm. The Minister submitted that this approach had no support in authority and there were numerous cases in the United States where it had been specifically held that detention of a short duration, unaccompanied by other forms of harm, did not rise to the level of persecution. The European approach appeared similar. The construction in WZAPN was not supported by the leading academic texts. The Minister cited as an example the view expressed by Grahl-Madsen in his book, The Status of Refugees in International Law (AW Sijthoff, 1966) (Grahl-Madsen), where it is stated at page 201 of volume 1 that:
We may conclude that there is precedent for considering the following measures or sanctions 'persecution' in the sense of the Refugee Convention, provided that the circumstances warrant it: … (2) Imprisonment or other forms of detention or internment for a period of three months or more, it remaining an open question whether deprivation of physical freedom for shorter periods may constitute 'persecution'; however deprivation of liberty for 10 days or less has been deemed not to amount to 'persecution'.
23 The Minister submitted that the explanatory memorandum that accompanied the Bill that became the Migration Legislation Amendment Act (No. 6) 2001 showed that s 91R was enacted to "set the parameters and raise the threshold of what can properly amount to "serious harm" within the spirit of the Refugees Convention", citing Minister for Immigration and Multicultural and Indigenous Affairs v VBAO [2004] FCA 1495; (2004) 139 FCR 405 at [36]. Section 91R(2) gave instances of serious harm. If the proper interpretation of s 91R(2)(a) deemed a threat of any period of detention to constitute serious harm, the consequence would be that there would be no need to conduct a qualitative assessment to determine whether such a threat would otherwise meet the requirement that there be a real chance of "serious harm". That would mean that the Parliament, by enacting s 91R, in fact lowered the threshold for establishing persecution in a case where a person feared detention.
24 The Minister submitted that to construe s 91R(2)(a) as meaning that any threat of detention necessarily constituted serious harm would produce anomalous results. It would allow protection claims to be established based on a real chance of even a short period of detention, when more serious infringements of rights may nevertheless fail to constitute persecution because they fell short of the "serious harm" threshold. The Minister referred to the statement in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60; (2006) 233 CLR 1 (VBAO) at [19] per Gummow J that the six paragraphs (a)-(f) of s 91R(2) should be considered together and they all took their colour from the specification of "serious harm" in the opening words of the subsection. The Minister submitted that whether the particular harm that was feared was serious (and indeed so serious as to prevent the visa applicant from returning to their own country) required a qualitative analysis of the feared harm in each instance, citing VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212; (2005) 141 FCR 435 (VBAS) at [28]; SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 962 (SCAT) at [36]; and SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 (SZBOV) at [19]-[20].
25 The Minister also submitted that, contrary to the apparent reasoning in WZAPN, a threat of detention was not synonymous with a threat to liberty for the purposes of s 91R(2)(a). The Minister submitted that it was an error to define the concept of "serious harm" or "persecution" by reference to international human rights treaties that post-dated the Convention and were directed to a different topic. The Minister submitted that it was an error to apply, as the Minister submitted the judge did in WZAPN, a "human rights framework" to the identification of serious harm under the Convention.
26 Insofar as the appellant submitted that some further analysis by the Tribunal was required to determine whether the relevant law was appropriate and adapted to its purpose, the Minister submitted that the High Court decisions considered in WZAPN preceded s 91R being inserted into the Migration Act; in any event, the High Court decisions proceeded on the basis that an analysis as to whether a law was appropriate and adapted to its purpose was only required when a law of apparently general application had a discriminatory impact or effect, which was not this case; and the observations in WZAPN were obiter and, in any event, could not override any relevant statement by the High Court.
27 The Minister submitted the Tribunal did consider whether the period on remand would involve serious harm and answered that question in the negative at [37]. The Minister accepted that this was a qualitative assessment by the Tribunal in that respect, but submitted that such an assessment was permissible for the reasons set out above.
28 The appellant's responses to these submissions were as follows.
29 The appellant submitted that the reasoning in WZAPN was not plainly wrong. The appellant relied on the reasoning in WZAPN at [30] and [45] of the judgment. That is, the express statutory formulation in s 91R(2)(a) was not contingent on a qualitative or adjectival expression of the harm, the reasonable inference of which was that the threat to life or liberty was without reference to the severity of the consequence to life or liberty. This construction - of a threat to liberty as absolute and devoid of qualitative assessment - accorded with Australia's international obligations under the Convention. The absolute nature of the protections afforded to the right to liberty was consistent with other Australian statute and tort law, including those exceptions cited under the Australian Human Rights Commission Act 1986 (Cth).
30 As to the Minister's submission that the reasoning in WZAPN should be rejected because that reading of the plain words of s 91R(2)(a) was inconsistent with the intended effect of s 91R, the appellant submitted that that in turn depended on an assertion that s 91R(2)(a) was inconsistent with the meaning of "persecution" for the purposes of the Convention, which was incorrect.
31 As to the Minister's submission that the reasoning in WZAPN should be rejected because detention did not necessarily equal persecution within the meaning of Art 1A(2) of the Convention, the appellant submitted that proposition should be rejected.
32 As to the Minister's submission that the reasoning in WZAPN should be rejected because the purpose of s 91R(2)(a) was to require a decision-maker to undertake a qualitative analysis of the kind of detention feared to determine if the feared detention rose to a threat to liberty, the appellant submitted no authority existed for such a proposition and it was contrary to the ordinary meaning of liberty.
33 As to the Minister's submission or suggestion that the reasoning in Chan and Ibrahim established that harm must rise above a threshold of severity, the appellant submitted that what McHugh J said in Chan simply noted that not every threat of harm for a Convention reason constituted "being persecuted", but this clearly left open the question of whether particular types of harm would constitute persecution. Secondly, the Minister's submission ignored the significant reference made by McHugh J in both cases to the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook), particularly to [51] of that Handbook. The appellant also referred to Goodwin-Gill and McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) at page 90.
34 The appellant submitted that:
(a) none of the authorities or commentaries referred to in the Minister's submissions established that a threat to liberty did not constitute a threat of serious harm for the purposes of that component of the equation to determine whether there was a risk of persecution. Section 91R(2)(a), by its plain words, included within "serious harm" a "threat to liberty";
(b) North J in WZAPN did not conclude that any period of detention, however short, necessarily constituted persecution but, rather, his Honour's conclusion was that any period of detention, however short, constituted a threat to liberty and therefore "serious harm" within s 91R(1)(b);
(c) the Minister impermissibly conflated the concept of persecution with its subset of "serious harm";
(d) the Minister's reference to Grahl-Madsen's comments was misplaced; and
(e) the Minister's contention that the construction of s 91R(2)(a) in WZAPN was inconsistent with Art 1A(2) of the Convention should be rejected.
35 In the present case, the appellant submitted, the real reason that the Tribunal found that there would be no persecution in respect of the claim to fear imprisonment on return as a failed asylum seeker was simply a finding that such imprisonment would not amount to "serious harm". Unsurprisingly, the appellant submitted, in light of that finding, there was no separate consideration of the other integers of "persecution" which would have independently supported a finding, for the purposes of the Convention, that there was no "relevant persecution" - for example, because the action would not occur for a Convention reason.
36 The appellant submitted that the Minister's submissions as to the construction of s 91R proceeded from the erroneous assumption that a "threat to liberty" would not necessarily involve "serious harm" for the purposes of the Convention.
37 The appellant submitted that the Minister's reliance on the observations in VBAO was misplaced.
38 The appellant submitted that the Minister's assumption that convenience dictated that people must be returned to a place where they will be deprived of their liberty for a few hours where such deprivation of liberty was because of their ethnicity and not pursuant to a law of general application countenanced "a little abuse of liberty", which immediately begged the question of how much liberty was important to an individual and what level of abuse of a person's liberty would convenience require. That proposition, the appellant submitted, was entirely inconsistent with the value which the common law had always placed on the absolute nature of liberty of the individual. The appellant referred to Goldie v Commonwealth (No 2) [2004] FCA 156; (2004) 81 ALD 422 (Goldie) at [17] per French J (as his Honour then was). The appellant submitted the plain meaning of liberty did not admit or countenance captivity for a particular period of time. The assumption that some deprivation of liberty did not involve serious harm should be rejected. No authority was cited for the proposition that a confinement for a short period was not a deprivation of liberty.
39 Shortly before the hearing of the appeal, the Minister filed further submissions in which he drew the Court's attention to a recent ex tempore judgment of Hayne J in SZWAU v Minister for Immigration and Border Protection [2015] HCA Trans 2 (29 January 2015) (SZWAU). In dismissing an application for an interlocutory injunction to prevent the imminent return to Sri Lanka of an unsuccessful asylum seeker, and having had the decision of North J in WZAPN drawn to his attention, Hayne J made two points of relevance to the present appeal. First, noting there was an application for special leave to appeal in WZAPN, his Honour said (at page 16 of the transcript):
For the purposes of determining this application I will proceed on the footing that the Tribunal was bound to act in accordance with the law as it may be understood to have been stated by North J in the decision in WZAPN. That assumption should not be understood as expressing any concluded view at all about the correctness of his Honour's exposition of the law. Those are matters which await consideration in the application for special leave brought by the Minister.
40 Second, his Honour gave emphasis to the following matter relating to the meaning and effect of s 91R of the Act (at page 18 of the transcript):
It will be observed that the premise for the engagement of section 91R(1) is that Article 1A(2) of the Refugees Convention as amended by the Protocol is otherwise satisfied, there being persecution - I interpolate a real risk of persecution - for one or more of the reasons mentioned in that Article.
The question of whether the persecution involves serious harm to the applicant arises if, and only if, it is first demonstrated that the applicant fears a real risk of harm for a Convention reason. (Emphasis added.)
41 The Minister submitted that s 91R(2)(a) had work to do only in relation to what was serious harm for the purposes of s 91R(1)(b), as was made clear in the opening words of s 91R(2). And the opening words of s 91R(1) made clear that each of paragraphs (a)-(c) of that sub-section must be fulfilled before Art 1A(2) will apply in relation to persecution for a Convention ground.
42 The Minister then submitted that s 91R(1) "provides added conditions" for the purposes of the application of the Act and the regulations to a person. Furthermore, it was submitted that these conditions "reflected Parliament's view of the true effect of Art 1A(2)", and, in that sense, ss 91R(1) and (2) were "limiting provisions". The Minister then contended that if the provisions were not viewed as limiting but instead as loosening the requirements of Article 1A(2), they would have no work to do because, as Hayne J explained in SZWAU, these provisions operate only once Art 1A(2) is otherwise satisfied. This, submitted the Minister, was a further reason why the construction in WZAPN was incorrect.
43 The Minister further submitted that, once it was accepted that "persecution" for the purposes of Article 1A(2) involved evaluation by the Tribunal of whether the relevant harm was "serious harm", the appeal must fail. The Minister emphasised that the Tribunal made a clear finding at [37] of its reasons that it was not satisfied that being questioned on arrival at the airport, and detained for a few days in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing, could reasonably be seen as constituting "serious harm".
44 The Minister also clarified that he was not contending that the Sri Lankan law pursuant to which the appellant might face a period in remand was not one of general application. The Minister acknowledged that there was no clear finding by the Tribunal that the law was in fact one of general application.