SZSRY v MIBP

This matter concerned an application for judicial review of a decision by an Independent Protection Assessor (IPA) regarding the applicant's claim for complementary protection under section 36(2)(aa) of the *Migration Act 1958* (Cth). The applicant sought review of the IPA's finding that he did not meet the criteria for complementary protection, specifically that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Afghanistan, he would suffer significant harm.

The legal issues before the court were whether the IPA had failed to take relevant considerations into account, namely her own findings regarding the unstable security situation in Afghanistan and the plausibility of the applicant's brother being kidnapped and killed, when assessing the applicant's claims. Additionally, the court considered whether the IPA had applied the correct legal test under section 36(2)(aa) and whether she had erroneously failed to consider section 36(2B) of the *Migration Act 1958*.

Judge Driver reasoned that the IPA's assessment of the applicant's credibility was central to her decision. The IPA explicitly stated she was not satisfied that the claimed events in Afghanistan had occurred due to the applicant's lack of credibility. Consequently, she was not satisfied that there were substantial grounds for believing a real risk of significant harm would arise upon removal. The court noted that the applicant pressed grounds relating to the IPA's failure to consider the general security situation in Afghanistan and the correct test under section 36(2)(aa), and was permitted to add a ground concerning the failure to consider section 36(2B).

The court ultimately found that the IPA's conclusion that she was not satisfied of the applicant's credibility meant that the specific events he relied upon were not accepted as having occurred. This lack of factual basis for the claimed events underpinned the IPA's determination that there was no real risk of significant harm. The court did not make final orders in the provided text.