CIRCUIT COURT OF AUSTRALIA
| ADL17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 148 |
| Catchwords: MIGRATION – Complementary protection – whether substantial grounds for believing there is a real risk applicant may suffer significant harm – whether principle enunciated in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs apply to complementary protection – whether such principle should be extended beyond its rationale – statutory construction – Appellant S395 principles not applied – Ground 2 rejected. MIGRATION – Judicial review – Authorities obligation to consider claims made expressly and those which arise clearly on the material before it – whether failure to exercise the jurisdiction conferred on the Authority – practical common sense approach to whether an unarticulated claim arose tolerably clearly from material before the Authority – Ground 3 rejected. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AB |
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- Case
- [2020] FCCA 148
- Decision Date
CaseChat Overview and Summary
The court was required to determine three grounds of review. The first ground concerned whether the Tribunal erred in its assessment of the applicant's well-founded fear of persecution, specifically whether the applicant could take reasonable steps to modify their behaviour without conflicting with fundamental aspects of their identity or conscience, or concealing an innate characteristic. The second ground challenged the Tribunal's application of the principles from *Appellant S395/2002 v Minister for Immigration* to its consideration of the complementary protection criteria, arguing that the Tribunal failed to consider whether the applicant had acted discreetly in the past to avoid harm. The third ground alleged that the Tribunal failed to consider claims made expressly or those that arose clearly from the material before it, thereby failing to exercise its conferred jurisdiction.
Regarding the first ground, the court noted that the enquiry was fact-specific and focused on whether there was a real chance of persecution if the applicant returned to their country of nationality, and whether reasonable steps to modify behaviour were objectively considered. The court found that Ground 1 was rejected. For the second ground, the court examined the statutory criteria for complementary protection under s 36(2)(aa) of the *Migration Act 1958* (Cth), which requires substantial grounds for believing there is a real risk of significant harm as a necessary and foreseeable consequence of removal. The court held that the principles enunciated in *Appellant S395/2002* were not applied to the complementary protection criteria, and that this principle should not be extended beyond its original rationale. Consequently, Ground 2 was rejected. The third ground was also rejected, with the court adopting a practical, common-sense approach to whether unarticulated claims arose tolerably clearly from the material.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
Ground 2 of the further amended application reads:In finding, pursuant to s 36(2)(aa) of the Act, that the Applicant would not face a real risk of significant harm in connection with his music and dance activities or his tattoos, the Authority found that the Applicant would continue to act discreetly to avoid harm on these bases, as he had in the past. However, it failed to consider whether the Applicant had acted discreetly in the past in order to avoid harm; accordingly, it failed to apply appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 to its consideration of the complementary protection criteria. As concerns Ground 2, the substantive basis for this ground of review was that the Authority “had failed to apply Appellant S395” in its consideration of the complementary protection criteria. Section 36(2)(aa) provides that a criterion for a Protection visa is that the applicant is a noncitizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the noncitizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. Section 36(2A) provides that a noncitizen will suffer significant harm if the person will be arbitrarily deprived of his or her life, or the death penalty will be carried out on that person, or that person will be subjected to torture, or subjected to cruel or inhuman treatment or punishment or subjected to degrading treatment or punishment. The majority of those terms are defined in s 5(1) of the Act. Section 36(2B) identifies circumstances where there is taken not to be a real risk that a person will suffer significant harm. Satisfaction of the definition of ‘refugee’ for the purposes of meeting the criterion for a Protection visa under s 36(2)(a) of the Act require that the applicant is outside of Australia, and owing to a well-founded fear of persecution is unable or unwilling to return to their country of nationality. However, complementary protection depends upon a different criterion; namely, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the noncitizen will suffer significant harm. Self-evidently, satisfaction of the criterion for complementary protection under s 36(2)(aa) requires satisfaction that the suffering of significant harm is a necessary and foreseeable consequence of the person’s removal. This has been described as a test which presents a high standard.[60] [60] See, eg, Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497, [62] The Authority correctly identified the criterion for complementary protection and the meaning of a real risk of significant harm as supplied by s 36(2A) of the Act. Annexed to the Reasons was an extract of the provisions of the Act as relevant to complementary protection.