Case: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1495 ; (2004) 139 FCR 405
Outcome: considered
In that case the claimant was a national of Sri Lanka who claimed that, as a result of his political activities in Sri Lanka, he had received numerous threats to his life from members of an opposition political party. The Tribunal had accepted that the claimant had received intimidating and threatening phone calls and letters, but held these phones calls and letters did not involve serious harm to the claimant. The Tribunal upheld the decision of the delegate of the Minister to refuse a visa to the claimant. The claimant applied to the Federal Magistrates Court to have the decision of the Tribunal set aside, wherein the claimant was successful. The Minister then appealed to the Federal Court. In considering s 91R , Marshall J found (his Honour's decision was reported at [2004] FCA 1495 ; (2004) 139 FCR 405) as follows: "(at 410) Counsel (for the claimant) submitted that the Federal Magistrate was correct to conclude that the making of a threat to life is serious harm for the purpose of s 91R(1)(b). Counsel contended that the apprehension attending a threat to life is the type of psychological injury to which the Refugees Convention is directed... ...(at 411) (The RRT) considered that the death threats did not constitute serious harm. In my view this finding was entirely open to the RRT... It could not, in my view, have been the intention of Parliament that threats in the form of declarations of intent, could prima facie constitute serious harm. Even with the qualification to s 91R(2)(a) , which the respondent submits must operate to exclude from its scope, threat which do not have the capacity to instil fear, it is clear that that application of the (claimant's) definition would be productive of anomalous consequences... ... (at 412) Counsel for the respondent contended in written submissions that 'if an applicant fears he or she will lose their life there is no doubt the harm feared would constitute persecution'. That is to elevate the element of fear to an impermissible level. All instances of alleged serious harm have the potential to agitate their victim but this is not the hallmark of their categorisation as instances of serious harm. Rather, serious harm contemplates that a person's livelihood or well-being will be jeopardised in a material way. This is not to deny that threats of the kind directed at the (claimant) can never constitute serious harm, but they do not, of themselves, automatically qualify for that description." 17 Accordingly, his Honour allowed the appeal and re-instated the decision of the Tribunal. 18 On appeal from Marshall J, the High Court considered the meaning of "threat" in s 91R. The findings of their Honours relevant to the proceedings before me include the following: &#8226; In summary Gleeson CJ and Kirby J noted (at 545) that: o the word "threat" can mean either a communication of an intention to harm, or a likelihood of harm o 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 is future harm. Elsewhere in s 91R(2) , the word "threatens" appears three times in a context where it clearly bears the meaning of a likelihood of harm rather than a communication of intention to harm o in s 91R(2)(a) it is clear that "threat" is used in the sense of likelihood of harm. "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." &#8226; Gummow J said in summary: o it was clear from para 19 of the Explanatory Memorandum accompanying the Migration Legislation Amendment Act (No 6) 2001 (Cth), which introduced s 91R into the Migration Act , that Parliament intended that the degree of apprehended "harm" feared in the context of claims of persecution should not rise above the level of harm accepted by the parties to the Refugee's Convention as constituting persecution. This is made even more clear by s 91R(1)(b) and (c) (at 547-548) o the notion of "serious harm" for the purposes of s 91R(1)(b) is "given further treatment in s 91R(2)" (at 548), which states instances of serious harm for the purpose of s 91R(1)(b) o Counsel for the claimant had urged a reading of s 91R(2)(a) which included a past or current communication of an intention to kill or deprive a person of liberty which, considered objectively, was capable of instilling fear in the person and does so. However the six paragraphs of s 91R(2) should be considered together, taking their colour from the specification of "serious harm" in the opening words of the subsection. His Honour observed: "This reading of the whole of the text of s 91R(2) suggests that no less an element of comparable gravity is involved in the stipulation of a threat to the life or liberty of the person in question. More is required than a possibility which is capable of instilling a fear of danger to life or liberty" (at 549) o a "threat" in such circumstances may be an indication of evil to come, but may not have been based upon any direct statement to that person by any official source (at 549). &#8226; In summary, Callinan and Heydon JJ held: o section 91R is not concerned exclusively with, or applicable to events in the past, rather than current or future circumstances. If any threat or relevant risk is not current or prospective, there can be no well founded fear of persecution (at 555) o neither the Refugees Convention nor s 91R of the Migration Act can be read as if a threat of sufficient gravity which has passed, has not been renewed or revived, and is unlikely to be renewed or revived for a Convention reason, will suffice to give rise to the requisite well founded fear (at 555). 19 Accordingly, their Honours dismissed the appeal. 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.