VBAO v Minister for Immigration and Multicultural and Indigenous Affairs

The Full Federal Court considered an appeal by VBAO against a decision of the Minister for Immigration and Multicultural and Indigenous Affairs. The dispute concerned VBAO's application for a protection visa, which had been refused. The central issue revolved around the interpretation of "serious harm" as defined in section 91R(1) of the *Migration Act 1958* (Cth), which requires persecution to involve "serious harm to the person," including a "threat to the person's life or liberty."

The court was required to determine whether the phrase "threat to the person's life or liberty" referred to the likelihood of death or deprivation of liberty, or merely the communication of an intention to kill or deprive of liberty. Consequently, the court had to decide whether the mere expression of an intention to cause harm was sufficient to constitute "serious harm" under the Act, and whether the Refugee Review Tribunal had made findings of fact favourable to the appellant that would trigger the operation of section 91R.

The court reasoned that a "threat" in this context implies a communication of an intention to inflict harm, rather than the actual infliction of harm or a high probability of its infliction. The judges held that the expression of an intention to kill or to deprive of liberty, even if not immediately actionable or likely to be carried out, could constitute a threat to life or liberty. Therefore, such an expression could amount to "serious harm" for the purposes of section 91R. The appeal was dismissed with costs.