DQU16 & Ors v Minister for Home Affairs & Anor  HCA 10
AGS instructed A M Mitchelmore SC with G J Johnson for the first respondent.
The first appellant, an Iraqi national, claimed that while in Iraq he had sold alcohol and had been a target of violence as a result. He applied for a protection visa on the basis that he had a well-founded fear of persecution and was therefore a refugee (Migration Act 1958 (Cth) s 36(2)(a)) (the refugee criterion), and that he faced a real risk of significant harm if returned to Iraq (s 36(2)(aa)) (the complementary protection criterion). That application for a protection visa was refused by a delegate of the Minister.
Upon review of the delegate’s decision, the Immigration Assessment Authority (Authority) found that the first appellant would not sell alcohol if he returned to Iraq, and held that the complementary protection criterion therefore was not satisfied. The appellants submitted the Authority had fallen into jurisdictional error by failing to apply the principle in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (Appellant S395). That principle provides that in assessing a claim under the refugee criterion, an asylum seeker cannot be expected to hide or change behaviour that is a manifestation of a protected characteristic under international law to avoid persecution.
The High Court held the principle in Appellant S395 did not apply to the complementary protection criterion. The statutory task and the nature of the relevant harm were different. An assessment under the complementary protection criterion did not involve finding a nexus between a person’s beliefs, attitudes or characteristics and the relevant harm. Further, the High Court held that where the factual bases for claims under the two criteria overlap a decision-maker is entitled to refer to and rely on any relevant findings made under the refugee criterion when considering the complementary protection criterion.
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