ATK15 v Minister for Immigration

This matter came before Judge Burchardt of the Federal Circuit and Family Court of Australia concerning an application for review of a decision made by the Refugee Review Tribunal. The applicant, ATK15, sought to challenge the Tribunal's assessment of whether relocation to another part of their home country was a reasonable alternative to seeking protection as a refugee. The core of the dispute revolved around the legal test applied by the Tribunal in considering the applicant's fear of harm upon relocation.

The primary legal issue before the Court was whether the Refugee Review Tribunal erred in law by misconstruing or misapplying the relevant legal test for relocation. Specifically, the applicant argued that the Tribunal incorrectly imported the criteria of "serious harm" from section 91R of the *Migration Act 1958* (Cth) into the relocation principle, thereby unduly restricting its assessment. The applicant contended that the Tribunal's finding that they would not face a "real chance of serious harm or a real risk of significant harm" was an erroneous application of the relocation principle as established in *SZATV v Minister for Immigration and Citizenship* [2007] 233 CLR 18.

Judge Burchardt reasoned that while the High Court in *SZATV* recognised that neither section 91R nor other provisions of the Act specifically defined the "relocation principle," this did not preclude consideration of the risk of harm in a proposed new region. Conversely, the Court noted that *SZATV* did not hold that the relevance of harm risk to relocation reasonableness was confined to a risk of "serious harm" as defined in section 91R(1)(b). The Court referred to the High Court's emphasis in *SZATV* that what is "reasonable" in the sense of "practicable" for relocation must depend on the particular circumstances of the applicant and the impact upon them of relocation. The Tribunal's adoption of a restricted position focusing solely on "serious harm" was therefore found to be an error of law.