DQA17 v Minister for Home Affairs

In the matter of DQA17 v Minister for Home Affairs, the appellant, a citizen of Afghanistan, sought review of a decision made by the Immigration Assessment Authority (IAA) which concluded that the appellant was not a person to whom Australia owed protection obligations under section 36(2)(aa) of the Migration Act 1958 (Cth) (the "Act"). The IAA's decision was predicated on its finding that it would be reasonable for the appellant to relocate to Kabul within Afghanistan, where there would not be a real risk that the appellant would suffer significant harm. The central legal issue before the court was whether the IAA engaged in jurisdictional error in its consideration of the appellant's claim under section 36(2)(aa) of the Act, specifically in determining the reasonableness of relocation to Kabul.

The court examined the IAA's approach to the principle of reasonable internal relocation, drawing upon the principle developed in the authorities concerning claims made under the Refugees Convention as amended by the Refugees Protocol. The court considered whether these principles apply under the codified regime of the Act, particularly in the context of section 5J(1)(c) and whether those principles comprehend a risk of harm in a place of relocation less than a real chance of serious harm. The court also considered whether an assessment of reasonableness under section 36(2B)(a) engages a consideration of a risk of harm or lack of safety in a proposed place of relocation where the harm is something other than "significant harm" for the purposes of section 36(2A) of the Act. The court acknowledged the observations of the Full Court in several precedent cases and the comments of Kiefel CJ, Gageler and Nettle JJ in CRI026 v The Republic of Nauru that authorities derived from international jurisprudence are unhelpful in interpreting the codified regime of complementary protection provided for in the Act.

The court concluded that the IAA had taken into account the appellant's specific circumstances and vulnerabilities, including the traumatic event of his father's murder, but found no evidence indicating that the appellant would face particular risks upon return to Kabul. The IAA's conclusion that it would be reasonable for the appellant to relocate to Kabul was open and did not constitute a failure to have regard to the appellant's specific circumstances or vulnerabilities. The court held that the IAA's decision was not vitiated by jurisdictional error and dismissed the appeal.

The final orders of the court were to grant leave to amend the notice of appeal, dismiss the appeal, and order the appellant to pay the first respondent's costs of and incidental to the appeal.