EJC18 v MICMSMA

The applicants, EJC18 and MICMSMA, sought judicial review of a decision concerning their application for a Protection (class XA) visa. The dispute centred on whether harm arising from the enforcement of legal land rights in their country of citizenship constituted a "necessary and foreseeable consequence" of their return, as contemplated by section 36(2)(aa) of the *Migration Act 1958* (Cth). The matter was heard by Judge Mercuri in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was the interpretation of the phrase "necessary and foreseeable consequence" within the context of section 36(2)(aa) of the *Migration Act*. Specifically, the court had to determine whether the potential harm the applicants might face due to the enforcement of their legal land rights in their home country was a consequence that was both necessary and foreseeable, thereby engaging the protection visa provisions.

Judge Mercuri reasoned that for harm to be a "necessary and foreseeable consequence," it must be more than merely possible or speculative. The court found that the applicants had not established that the enforcement of their legal land rights would inevitably lead to harm, nor that such harm was a reasonably foreseeable outcome of their return. The mere existence of legal rights and the possibility of their enforcement did not, in the court's view, satisfy the threshold required by the legislation. Consequently, the court concluded that the applicants had not demonstrated that they would suffer harm as a necessary and foreseeable consequence of being returned to their country of citizenship.

The applicants’ application was dismissed, and they were ordered to pay the first respondent’s costs, to be fixed.