DQU16 v Minister for Home Affairs [2020] FCA 518

DQU16 v Minister for Home Affairs [2020] FCA 518

The Authority was not required to assess whether the harm avoided by the first appellant ceasing to sell alcohol amounted to significant harm. The S395/2002 behavioural modification principle concerns persecution connected with a Refugee Convention characteristic, whereas the Authority's complementary protection assessment under ss 36(2)(aa) and 36(2B) concerned whether the first appellant, returning to Iraq as a failed asylum seeker and acting rationally to avoid non-persecutory harm unconnected with a Convention characteristic, faced a real risk of significant harm. The Authority carried out that required assessment, so the sole ground of appeal did not establish error by the primary...

Jurisdiction
Australia
Judgment Date
22 April 2020
Procedural Posture
Migration Appeal From a Judgment of the Federal Circuit Court of Australia Upholding a Decision of the Immigration Assessment Authority / Appeal to the Federal Court After Extension of Time to Pursue a Sole Ground of Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visas' 'complementary Protection' 'jurisdictional Error' 'behaviour Modification to Avoid Harm' 'significant Harm' 'refugee Convention Characteristics']
['migration Law' 'administrative Law'] ['protection Visas' 'complementary Protection' 'jurisdictional Error' 'behaviour Modification to Avoid Harm' 'significant Harm' 'refugee Convention Characteristics']

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Procedural Posture

Migration Appeal From a Judgment of the Federal Circuit Court of Australia Upholding a Decision of the Immigration Assessment Authority / Appeal to the Federal Court After Extension of Time to Pursue a Sole Ground of Appeal

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in failing to find that the Immigration Assessment Authority committed jurisdictional error by failing to apply the principles in Appellant S395/2002 when considering the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth).' 'Whether, after finding that the first appellant would not sell alcohol on return to Iraq because of safety risks, the Authority was required to assess whether the harm avoided by that behavioural modification amounted to significant harm under s 36(2B) of the Migration Act 1958 (Cth).']

Ratio Decidendi

The Authority was not required to assess whether the harm avoided by the first appellant ceasing to sell alcohol amounted to significant harm. The S395/2002 behavioural modification principle concerns persecution connected with a Refugee Convention characteristic, whereas the Authority's complementary protection assessment under ss 36(2)(aa) and 36(2B) concerned whether the first appellant, returning to Iraq as a failed asylum seeker and acting rationally to avoid non-persecutory harm unconnected with a Convention characteristic, faced a real risk of significant harm. The Authority carried out that required assessment, so the sole ground of appeal did not establish error by the primary...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The notice of appeal filed on 21 December 2018 is dismissed.' "The first appellant is to pay the first respondent's costs of this appeal to be taxed if not agreed."]