CWF16 v Minister for Home Affairs & Anor

This case concerned an application for special leave to appeal to the High Court of Australia. The applicant, CWF16, sought to challenge decisions of the Immigration Assessment Authority and the Federal Court regarding his protection visa application. The core of the dispute revolved around the correct interpretation and application of sections 36(2)(aa) and 36(2B)(a) of the *Migration Act 1958* (Cth), which relate to the assessment of complementary protection for non-citizens. CWF16 argued that the Authority and the courts below had failed to consider the reasonableness of his return to Kabul, a place he had resided in temporarily while fleeing his home region of Ghazni, which was found to be unsafe.

The legal issues before the High Court were whether the Immigration Assessment Authority, and subsequently the Federal Circuit Court and Federal Court, had erred in their construction and application of the *Migration Act*. Specifically, the applicant contended that the Authority wrongly concluded that questions of reasonableness of relocation did not arise when assessing a person's risk of harm upon return to a country. The applicant argued that the legislation required an assessment of the reasonableness of returning to a particular location, even if that location was not the applicant's original home, and that this assessment had not been undertaken.

The applicant's argument was that the relevant provisions of the *Migration Act* should be interpreted to require consideration of the reasonableness of returning to a specific place, such as Kabul, even if that place was not the applicant's original home region of Ghazni. This interpretation, it was submitted, was necessary to properly implement international law regarding complementary protection and to avoid injustice. The applicant argued that the Authority had incorrectly determined that the question of relocation was not relevant, focusing instead on the risk of harm in Kabul without considering the practicalities and reasonableness of living there, such as general violence, lack of connections, and employment prospects. The Minister, conversely, submitted that the statutory language of section 36(2)(aa) was clear and unambiguous, requiring an assessment of where the non-citizen would likely go upon return, and that the applicant's proposed interpretation would lead to anomalous results and extend protection beyond the scope of the Refugee Convention.