Case: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 54
Outcome: considered
The leading case considering the term "threat to person's life or liberty" in s 91R is the High Court decision in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 54. Both Counsel in the proceedings before me addressed issues arising from this case in considerable detail. 20 The key issue arising in respect of grounds 1 and 2 in these proceedings concerns the meaning of "threats" in the context of "serious harm" in s 91R Migration Act . As is clear from perusal of s 91R , Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution unless the persecution involves serious harm to the person: s 91R(1)(b). Without limiting the meaning of "serious harm" in the context of s 91R(1)(b) , s 91(2) gives examples of "serious harm", including "a threat to the person's life or liberty" (s 91R(2)(a)). Further, it is clear from the decision of the High Court in VBAO 231 ALR 54 that, as a general proposition, verbal threats will not of themselves constitute serious harm within the meaning of s 91R. 21 In these proceedings the appellant submits that verbal threats, if they are likely to be repeated in the future, are capable, in themselves, of amounting to serious harm for the purposes of s 91(1)(b) depending on the circumstances of the case. In particular, Mr Rangiah for the appellant submitted that: &#8226; the Tribunal accepted that on three separate occasions in 2001, 2002 and 2004 the appellant was detained and threatened by members of the Israeli Special Forces, including verbal threats to the effect that if remained in Israel he would "get a bullet in his head", and the physical threat of having a gun pointed at him &#8226; even if, as the Tribunal found, the Israeli Special Forces did not intend to carry out the threat to shoot him if he remained in Israel, there remained the distinct possibility that similar threats would be made in the future. In this case, however the Tribunal did not consider whether such threats were likely to be made in the future and did not consider whether such threats could, by themselves, amount to "serious harm" &#8226; the making of threats in the future, which are designed to intimidate and frighten and do have that effect, can amount to serious harm within s 91(2)(b). Threats such as pointing a gun and indicating that the person will be shot unless he or she complies with a demand are capable of inflicting serious psychological harm &#8226; in VBAO 231 ALR 54 the High Court did not directly consider the broader issue of whether threats can, in some circumstances, amount to "serious harm" within s 91R(1)(b) &#8226; section 91R(2) merely provides instances of conduct which may constitute "serious harm" &#8226; Marshall J in VBAO [2004] FCA 1495 ; 139 FCR 405 accepted that verbal threats directed at the respondent can in some cases constitute serious harm, although they do not, of themselves, automatically qualify for that description. The High Court approved the judgment of Marshall J. 24 First, in order to constitute a well founded fear of persecution, any threat or relevant risk must be current or prospective, rather than historical only: VBAO 231 ALR 54, Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. However, it is reasonable that a Tribunal should have regard to events that have occurred, to assist in its decision as to whether it is likely that the claimant will in future be subject to persecution. As Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed in Guo 191 CLR at 575: "Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events." 26 Third, it is clear from VBAO 231 ALR 54 that verbal communication of threats without more does not constitute "serious harm" within the meaning of s 91R(1) or s 91R(2) Migration Act . Mr Rangiah submitted that threats such as pointing a gun at a person's head and indicating verbally that the person will be shot unless he or she complies with a demand can constitute "serious harm". However the Tribunal in its decision thoroughly reviewed the incident including where a gun had been pointed at the appellant and verbal threats made, and considered that this did not constitute serious harm. As I have already said, the High Court in VBAO 231 ALR 54 has held that verbal threats, without more , do not constitute "threats" amounting to serious harm for the purposes of s 91R. It is useful to compare the facts of this case with those in VBAO 231 ALR 54, where the claimant had not only been verbally threatened but also had claimed to have been beaten and had his hair cut by rival political groups, but the court declined to quash the decision of the Tribunal that "serious harm" had not been caused to the claimant. In these proceedings the Tribunal considered the evidence of additional events upon which the appellant relied, but was not satisfied that "serious harm" had been or would be occasioned. This finding was open to the Tribunal on the facts before it. 27 Fourth, although Mr Rangiah also submitted that a series of threats designed to intimidate and frighten could cause serious psychological harm, which would itself be "serious harm", it is for the appellant to make the case of well founded fear of persecution before the Tribunal. On the material before me there appeared to be no evidence that the appellant had sustained such serious psychological harm or would sustain such harm if he returned to Israel. 28 Finally, and notwithstanding Mr Rangiah's persuasive arguments, I am satisfied that the High Court's findings in relation to the meaning of the word "threat" as an instance of serious harm in s 91R(2)(a) Migration Act extend to the concept of threat as "serious harm" within s 91R(1)(b). I do not consider that a "threat" as a species of serious harm for the purposes of s 91R(1)(b) is, for example, of potentially broader application in that section in comparison with its meaning in s 91R(2)(a). The section makes it plain that, in considering serious harm within the meaning of s 91R(1)(b) , while not limiting what is serious harm for the purposes of para (1)(b), regard should be had to the specific instances in s 91R(2). In my view, the findings of the High Court's in VBAO 231 ALR 54 in relation to the meaning of "threat", while specifically referable to s 91R(2(a) , are equally applicable to any concept of "threat" as "serious harm" within the meaning of s 91R(1)(b). To find otherwise would, in my view, ignore the plain meaning of s 91R , the fact that categories in s 91R(2) are clearly meant to assist in the interpretation of s 91R(1)(b) , and the clear findings of their Honours' in VBAO 231 ALR 54. 29 It follows that in my view no jurisdictional error in this respect is apparent from the decision of the Tribunal. 30 The Federal Magistrate similarly found that no jurisdictional error appeared from the decision of the Tribunal, because the Tribunal had applied the correct test in this case in relation to whether verbal threats could constitute "serious harm" within s 91R. In making this finding, his Honour relied on VBAO 231 ALR 54 and the Federal Court decision in VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212. His Honour did not, as claimed by the appellant, decide that threats of disappearance and death could not, by themselves, amount to "serious harm". His Honour's findings were limited to the case before him (in particular at [27]-[30]). I find no error in either his Honour's approach or decision in relation to this issue.