CDY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, CDY18, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the applicant's claim for protection, specifically whether he held a "well-founded fear of persecution" as defined by the Migration Act 1958 (Cth). The matter came before Driver J of the Federal Court of Australia.

The central legal issue before the court was the proper interpretation and application of section 5J of the Migration Act, which outlines the criteria for a well-founded fear of persecution. This included determining the scope of the qualification in section 5J(3), which states a person does not have such a fear if they could take reasonable steps to modify their behaviour to avoid persecution, provided those modifications do not have certain specified effects. The court was also required to consider the relationship between section 5J(1) and section 5J(3), and the importance of clearly identifying the basis of the feared persecution before assessing the possibility of modifying behaviour.

Driver J referred to the Full Federal Court's decision in *ADL17 v Minister for Immigration* which clarified that section 5J(3) acts as a qualification on the definition of a well-founded fear. This qualification allows for the expectation of reasonable modifications of conduct, unless such modifications would compromise the essential terms of the Refugee Convention, as specified in section 5J(3)(a)-(c). If a modification would have one of these effects, the reasonableness of the steps is irrelevant, and the applicant is not expected to take them. The court also emphasised, drawing on *Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs*, that it is fundamental to first define the particular social group and the type of harm feared before assessing whether an applicant could take reasonable steps to avoid persecution. Without this foundational identification, the assessment under section 5J(3) cannot be properly made.

The Authority had found that while the applicant experienced discrimination as an Arab, it did not amount to serious harm. Furthermore, the Authority found it difficult to accept the applicant's claims regarding involvement with the Iranian Intelligence Services and the subsequent fear of harm, given his prior employment and business history. Consequently, the Authority was not satisfied that the applicant faced a real chance of serious harm in the foreseeable future.