Clifford Chance

There is great interest within Clifford Chance in refugee issues and how we can use our expertise to try and ensure that asylum claims are determined fairly and that asylum seekers are properly supported. In the first of two blog articles on our approach, we here focus on an important case in our Sydney office.

In 2003, the High Court of Australia delivered its landmark decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, which held that decision makers were not permitted to impose any requirement upon asylum seekers to 'act discreetly' in order to avoid persecution. The essential reasoning was that the decision maker had diverted itself from the task of determining whether there would be a real chance the applicants would be persecuted if they returned to their receiving country, by focusing on an assumption about how the risk of persecution might be avoided.

Since that time, Australian courts have grappled with the wider implications of this principle. For the first time, the High Court of Australia – the highest court in the Australian court hierarchy – has now heard an appeal concerning the application of the 'S395 principle' in the context of the so-called 'complementary protection' regime.

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The Clifford Chance team in Australia (led by Tim Grave, Partner Sydney, and Alexandra Zhu, Senior Associate Sydney) had the privilege of acting, on a pro bono basis, for an Applicant for a protection visa under the complementary protection regime.

The Applicant and his family had their application for protection visas refused on the basis that the decision maker – the Immigration Assessment Authority (the Authority) – did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iraq, that there would be a real risk the Applicant would suffer significant harm. The Authority determined that the Applicant would not suffer significant harm because he would modify his behaviour on return to Iraq.

Following unsuccessful appeals in the Federal Circuit Court of Australia and the Federal Court of Australia, the Clifford Chance team was instructed on an application for special leave to appeal to the High Court of Australia. Special leave must be granted before any appeal will be heard by the High Court.

The team's application was successful, with the sole ground of appeal concerning the application of the principles in S395 when considering the complementary protection criterion under the Migration Act 1958 ("the Act"). Special leave was granted 'on the papers', instead of the more usual route of a contested special leave hearing (indicating that the High Court determined the question to be of such particular importance that it did not need to hear from the parties by way of oral argument).

The appeal itself was heard by a bench of 5 judges in the High Court on 4 February 2021. The Applicants contended that the Authority fundamentally erred in determining the Applicants' complementary protection claims by failing to address the question of "why" there would be modification of behaviour on return to Iraq.  Conversely, the Minister for Home Affairs contended that any further inquiry by the Authority was not supported by the terms of the relevant provision of the Act, nor was it consistent with the purpose of the provision.

The High Court's pending decision will clarify the current line of authority which suggests that Applicants will not be owed complementary protection where they could modify their behaviour upon return to avoid harm.

If the appeal is allowed, decision makers will be required, when undertaking their statutory task, to address the reason for any intended change in conduct if a finding has been made that a protection visa applicant will modify their behaviour. This will mean that decision makers cannot just focus on findings of modification of behaviour but will need to more closely scrutinise the significant harm that an applicant claims they will suffer if returned to the receiving country.

No matter what the result, the outcome of the appeal will determine, at long last, the implications of the S395 principle in the complementary protection context.

Clifford Chance's involvement in the case is a good example of pro bono intervention in certain types of litigation, which have the potential to achieve significant impact.

The Applicants were also represented, on a pro bono basis, by a Counsel team consisting of Carol Webster SC, Ingrid King and Emily C Graham. The matter is DQU16 & Ors v Minister for Home Affairs & Anor.