DQA17 v Minister for Home Affairs [2020] FCA 864

FEDERAL COURT OF AUSTRALIA

DQA17 v Minister for Home Affairs [2020] FCA 864 Appeal from: DQA17 v Minister for Immigration & Anor [2018] FCCA 2418

File number(s): WAD 439 of 2018

Judge(s): GREENWOOD J

Date of judgment: 19 June 2020

Catchwords: MIGRATION – consideration of whether the Immigration Assessment Authority ("IAA") engaged in jurisdictional error in concluding that the appellant is not a person to whom Australia owes protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (the "Act") – consideration of the way in which the claims under s 36(2)(a) and s 36(2)(aa) were framed – consideration of the principle of reasonable internal relocation as developed in the authorities in considering claims made under the Refugees Convention as amended by the Refugees Protocol – consideration of that principle in the context of s 5J(1)(c) of the Act and whether those principles apply under the codified regime – consideration of the extent to which that subsection comprehends a risk of harm in a place of relocation less than a real chance of serious harm MIGRATION – consideration of the extent to which an assessment of reasonableness for the purposes of s 36(2B)(a) in a claim under s 36(2)(aa) engages a consideration of a risk of harm or lack of safety in a proposed place of relocation where the harm is something other than "significant harm" for the purposes of s 36(2A) of the Act – consideration of the observations of Kiefel CJ, Gageler and Nettle JJ in CRI026 v The Republic of Nauru (2018) 92 ALJR 529; 355 ALR 216 that authorities derived from the international jurisprudence in relation to international treaties are "unhelpful in interpreting the codified regime of complementary protection provided for in the [Act]" – consideration of the observations of Gordon and Edelman JJ in CRI028 v The Republic of Nauru (2018) 92 ALJR 568; 356 ALR 50 – consideration of the factors falling within the notion of "reasonableness" for the purposes of s 36(2B)(a) of the Act – consideration of the observations of the Full Court in CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; DFE16 v Minister for Immigration and Border Protection (2018) 265 FCR 57; FCS17 v Minister for Home Affairs [2020] FCAFC 68; GLD18 v Minister for Home Affairs [2020] FCAFC 2; and other authorities