DQU16 v Minister for Home Affairs  HCA 10 (7 April 2021)
Section 36(2) of the Migration Act 1958 (Cth) relevantly provides two criteria for the grant of a protection visa: that the applicant is a non-citizen in Australia "in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee" under s 36(2)(a); and, if the applicant does not satisfy that criterion, that the applicant meets the complementary protection criterion under s 36(2)(aa), which gives effect to some of Australia's non-refoulement obligations under international instruments.
The differences in the text, context and purpose of s 36(2)(a) and s 36(2)(aa) and, thus, in the construction and application of the separate criteria in s 36(2)(a) and s 36(2)(aa) compel the conclusion that the principle in Appellant S395 in relation to s 36(2)(a) (whether as that provision was framed at the time of the decision or as now in force) does not apply to the statutory task when considering the complementary protection criterion in s 36(2)(aa).
The first appellant, an Iraqi national, sought a protection visa relying on s 36(2)(a) and s 36(2)(aa) of the Migration Act. The first appellant said he feared persecution, and would suffer significant harm, if returned to Iraq because, while in Iraq, he sold alcohol, which is banned by local law in some parts of Iraq and considered "immoral" and "un-Islamic" by Sunni and Shi'ite extremists. The Immigration Assessment Authority ("the Authority") found that the first appellant had not been personally targeted for reasons relating to the sale of alcohol, that he did not face a real risk of harm if returned to Iraq because he had sold alcohol previously, and, critically for this appeal, that if the first appellant returned to Iraq he would not continue to sell alcohol. The Authority affirmed the decision of the delegate of the then Minister for Immigration and Border Protection ("the Minister") not to grant the appellants protection visas. The Authority's approach to, and determination of, the first appellant's claim under s 36(2)(a) was not in issue in this Court.
The sole question raised by this appeal is whether the Authority committed jurisdictional error in failing to apply the principle in Appellant S395 when considering the first appellant's application for complementary protection under s 36(2)(aa) of the Migration Act, 1958 (Cth).
Appellant S395 and the statutory task under s 36(2)(a)
In Appellant S395, this Court was concerned with a claim for protection based on a person's refugee status under what became s 36(2)(a) of the Migration Act. Central to the reasoning in Appellant S395 was the definition of "refugee" in Art 1A(2) of the Convention.
The rationale for the principle is that a person who would otherwise be entitled to protection under s 36(2)(a) will not, and should not, lose that protection if it can be shown that the person would or could avoid persecution by sacrificing a protected attribute under the Convention. The principle, and its rationale, ensure that "the very protection that the Convention is intended to secure" for those facing persecution because of a protected attribute is not undermined, or surrendered, by requiring such a person to conceal that attribute on return to their home country.
The question that s 36(2)(a) asks is whether a person is owed protection obligations because they are a refugee. The statutory definition of "refugee" in s 5H directs attention to whether a person is unable or unwilling to avail himself or herself of the protection of his or her country of nationality, or unable or unwilling to return to the country of his or her former habitual residence, owing to a well-founded fear of persecution for one of the reasons set out in s 5J(1). Section 5J(3) provides exceptions to what constitutes a well-founded fear of persecution. It provides that a person does not have a well-founded fear of persecution "if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country", unless the modification, among other things, relates to fundamental, innate or immutable characteristics. The qualification has the effect that s 5J(3) is not inconsistent with the principle in Appellant S395.
Statutory task under s 36(2)(aa)
Section 36(2)(aa), which implemented the regime for "complementary protection" and with which this appeal is concerned, was inserted into the Migration Act to provide an additional basis to s 36(2)(a) for the grant of a protection visa.
The question s 36(2)(aa) asks is whether the decision-maker has substantial grounds for believing that there is a real risk that a person will suffer significant harm, as defined in s 36(2A) and subject to the matters in s 36(2B) and (2C), as a "necessary and foreseeable consequence" of the person's return to a receiving country. The inquiry is prospective. There are three elements that must be satisfied for the prospective harm to satisfy s 36(2)(aa): (1) the decision-maker must have substantial grounds for believing (2) that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, (3) there is a real risk that the non-citizen will suffer significant harm.
Principle in Appellant S395 does not apply to complementary protection claims
As is self-evident, the text of s 36(2)(a) and s 36(2)(aa) is different and therefore, unsurprisingly, the statutory questions are different: they are not interchangeable. And they are different because the purpose of the inquiry under each provision is different. Determining whether a person has a well-founded fear of persecution for a Convention reason under s 36(2)(a) is a fundamentally different inquiry to the question in s 36(2)(aa). Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non-citizen's removal to a particular State.
The decision in Appellant S395, therefore, does not apply to a claim for complementary protection. The rationale for the principle in Appellant S395 does not, and cannot, apply to the inquiry under s 36(2)(aa), which requires an assessment of the "necessary and foreseeable consequence[s]" of a person returning to a receiving country.
Authority's consideration of s 36(2)(aa)
The Authority then turned to consider the first appellant's claim for complementary protection under s 36(2)(aa). The Authority correctly identified the statutory question: whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the first appellant being removed from Australia to Iraq, there was a real risk that he would suffer significant harm within the meaning of s 36(2A). Relevantly, and critically for the purposes of the present appeal, having earlier found that the first appellant would not work as an alcohol seller upon his return to Iraq, the Authority found that he did not face "a real risk of harm" in Iraq on that basis. Accordingly, the Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the first appellant being returned to Iraq, there was a real risk that he would suffer significant harm of a kind listed in s 36(2A). And, as has been explained, the Authority did not commit jurisdictional error in not applying the principle in Appellant S395 when considering the first appellant's application for complementary protection under s 36(2)(aa).
As the first appellant's wife and child did not make their own claims for protection, the Authority found that they did not meet the family unit criteria in s 36(2)(b)(i) or (c)(i).
For those reasons, the Authority did not make the jurisdictional error the appellants alleged. The appeal should be dismissed with costs.