DQU16 v Minister for Home Affairs

The case of DQU16 v Minister for Home Affairs concerned applications for protection visas made by Iraqi nationals. The first appellant claimed protection as a refugee under s 36(2)(a) of the *Migration Act 1958* (Cth) and complementary protection under s 36(2)(aa). The second and third appellants, his wife and child, applied as members of his family unit. The Immigration Assessment Authority (the Authority) had refused to grant the visas, finding that the first appellant would modify his behaviour upon return to Iraq. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Authority's failure to consider the principle established in *Appellant S395/2002 v Minister for Immigration and Multicultural Affairs* (2003) 216 CLR 473, which held that an asylum seeker cannot be expected to hide or change behaviour manifesting a protected characteristic for the purposes of assessing a claim under s 36(2)(a), constituted a jurisdictional error when assessing the complementary protection criterion under s 36(2)(aa). The complementary protection criterion requires an assessment of whether "significant harm" is a "necessary and foreseeable consequence" of the applicant's return to their receiving country.

The High Court held that while the statutory questions posed by s 36(2)(a) and s 36(2)(aa) are distinct, a decision-maker assessing the complementary protection criterion under s 36(2)(aa) is entitled to refer to and rely on relevant findings made when considering the refugee criterion under s 36(2)(a), particularly where the factual bases overlap. The Court found that the question under s 36(2)(aa) is whether, in light of all relevant findings, there is a real risk of significant harm as a necessary and foreseeable consequence of the non-citizen's removal. The Court concluded that the Authority had indeed conducted this assessment in the present case.

The appeal was dismissed with costs.