DFO19 v MICMSMA

DFO19, an Iranian citizen who arrived in Australia as an irregular maritime arrival in August 2012, appeals against the dismissal of his application for a temporary Protection Visa. His application was initially refused by the delegate and upheld by the Refugee Review Tribunal. After the Federal Circuit Court quashed the Tribunal’s decision, the matter was remitted back for reconsideration, but the Tribunal again found against DFO19. DFO19 now appeals to the court, arguing that the Tribunal failed to consider whether he would face a real risk of significant harm if returned to Iran involuntarily.

The appeal hinges on the proper interpretation and application of sections 36(2)(aa) and 36(2)(a) of the Migration Act 1958 (Cth). The key issues are whether the Tribunal correctly interpreted and applied these sections in its decision. DFO19 contends that the Tribunal should have considered the possibility of his involuntary return to Iran, despite the likelihood that he would only be returned voluntarily. The court must determine if the Tribunal's approach constituted a jurisdictional error.

The court examined the Tribunal's reasoning and found no jurisdictional error. The Tribunal considered DFO19's risk of harm based on the premise that he would return voluntarily, given Iran's historical reluctance to accept involuntary returnees and the recent diplomatic agreement facilitating voluntary returns. The Tribunal concluded that DFO19 did not face a real risk of significant harm if he returned voluntarily, which the court found to be a reasonable interpretation of the law. The court held that the Tribunal's consideration of voluntary return did not constitute a jurisdictional error, as the Tribunal was not obliged to proceed on the assumption of involuntary return without evidence to support it.

Accordingly, the appeal was dismissed. The court ordered that DFO19 pay the costs of the first respondent, to be assessed on a lump sum basis by a registrar of the Court if not agreed upon.