ADL17 v Minister for Immigration

This matter came before Judge A Kelly of the Federal Circuit and Family Court of Australia concerning an application for judicial review of a decision by the Migration Review Tribunal. The applicant sought a protection visa, and the Tribunal had rejected claims related to a well-founded fear of persecution based on their involvement in dance and music, tattoos of a mystical nature, and interest in Christianity. The applicant also raised issues concerning complementary protection and the Tribunal's consideration of their claims.

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.