MZAEN v MIBP

This matter concerned an appeal from a decision of the Refugee Review Tribunal regarding the protection claims of three applicants. The primary dispute revolved around whether the applicants, particularly the third applicant, faced persecution or significant harm if returned to their country of nationality, Lebanon, or a potential receiving country, Jordan. The applicants argued that they might be denied medical care or live in poverty, and that the separation of family members would constitute persecution.

The court was required to determine whether the Refugee Review Tribunal erred in finding that the third applicant, a Lebanese national, did not have a well-founded fear of persecution for a Convention reason, nor did he face a real risk of significant harm under Australia's complementary protection obligations. Specifically, the court considered whether the separation of family members due to differing nationalities and potential destinations constituted persecution or significant harm, and whether harm arising from the act of removal itself could trigger Australia's protection obligations.

The court upheld the Tribunal's reasoning that the separation of family members, while potentially distressing, did not amount to persecution for a Convention reason or "significant harm" under complementary protection provisions. The court noted that the second applicant had a right to return to Jordan, and the separation was a consequence of differing nationalities and the applicants' potential destinations. Furthermore, the court affirmed that harm arising from the act of removal itself, as distinct from harm in the receiving country, would not satisfy the criteria for complementary protection. This was based on the interpretation that protection obligations relate to harm in the receiving country, and that the act of removal cannot itself be the "significant harm" as it must be a consequence of removal. The court also considered that the "intention" requirement for degrading treatment was not met by the consequence of removal.

Ultimately, the court found no error in the Tribunal's conclusion that none of the applicants had a well-founded fear of persecution for any Convention reason, nor did they face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to their receiving country.