DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs

In the matter of DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs, the appellant, DZW17, appealed against the decision of the Tribunal which had refused to grant the appellant a protection visa. The appellant argued that the Tribunal had misapplied the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth), and had failed to consider whether harassment from creditors satisfied the complementary protection criterion. The appellant submitted that the Tribunal should have considered the appellant's subjective fear of harm as a relevant element of the complementary protection criterion. The central legal issues in the case were whether the Tribunal misapplied the complementary protection criterion by treating the appellant's subjective fear of harm as a relevant element, and whether the Tribunal erred in failing to consider whether harassment from creditors satisfied the complementary protection criterion.

The court found that the Tribunal had not misapplied the complementary protection criterion, and that it was not necessary for the Tribunal to consider whether harassment by unpaid creditors constituted "serious harm" because the appellant had not established a "well-founded fear of persecution" in any event. The court held that the Tribunal was not required to consider the appellant's subjective fear of harm as a relevant element of the complementary protection criterion because there was nothing in the language or purpose of s 36(2)(aa) that indicated that a person's subjective belief was a mandatory irrelevant consideration. The court further held that the Tribunal had not erred in failing to consider whether harassment from creditors satisfied the complementary protection criterion because the Tribunal had found that any harm from creditors would not amount to "significant harm". The court held that there was no illogicality or irrationality in the Tribunal's finding that any harm from creditors would not amount to "significant harm".

The appeal was dismissed, and the appellant was ordered to pay the first respondent's costs as agreed or taxed.