DQU16 v Minister for Home Affairs

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
KEANE, GORDON, EDELMAN AND STEWARD JJ

DQU16 & ORS  APPELLANTS

AND

MINISTER FOR HOME AFFAIRS & ANOR  RESPONDENTS

DQU16 v Minister for Home Affairs

[2021] HCA 10

Date of Hearing: 4 February 2021
Date of Judgment: 7 April 2021

S169/2020

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

C A Webster SC with I J King and E C Graham for the appellants (instructed by Clifford Chance)

A M Mitchelmore SC with G J Johnson for the first respondent (instructed by Australian Government Solicitor)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. KIEFEL CJ, KEANE, GORDON, EDELMAN AND STEWARD JJ. Section 36(2) of the Migration Act1958 (Cth) relevantly provides two criteria for the grant of a protection visa: that the applicant is a non‑citizen in Australia "in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee" under s 36(2)(a); and, if the applicant does not satisfy that criterion, that the applicant meets the complementary protection criterion under s 36(2)(aa), which gives effect to some of Australia's non‑refoulement obligations under international instruments.

2. The first appellant, an Iraqi national, sought a protection visa relying on s 36(2)(a) and s 36(2)(aa) of the Migration Act. The first appellant said he feared persecution[1], and would suffer significant harm[2], if returned to Iraq because, while in Iraq, he sold alcohol, which is banned by local law in some parts of Iraq and considered "immoral" and "un-Islamic" by Sunni and Shi'ite extremists. The claims of the second and third appellants, the first appellant's wife and child, depended on the claims of the first appellant. The Immigration Assessment Authority ("the Authority") found that the first appellant had not been personally targeted for reasons relating to the sale of alcohol, that he did not face a real risk of harm if returned to Iraq because he had sold alcohol previously, and, critically for this appeal, that if the first appellant returned to Iraq he would not continue to sell alcohol. The Authority affirmed the decision of the delegate of the then Minister for Immigration and Border Protection[3] ("the Minister") not to grant the appellants protection visas. The Authority's approach to, and determination of, the first appellant's claim under s 36(2)(a) was not in issue in this Court.

   [1]Migration Act, s 36(2)(a).

   [2]Migration Act, s 36(2)(aa).

   [3]Now the Minister for Home Affairs.

3. This Court held in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[4] that, in assessing the refugee criterion in s 36(2)(a), an asylum seeker cannot be expected to hide or change behaviour that is the manifestation of a protected characteristic under the Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees ("the Convention") in order to avoid persecution[5]. Appellant S395