Federal Court. Does a finding that particular harm is not serious for the purpose of s 36(2)(a) of the Act necessarily lead to a corresponding finding that it is not significant harm for the purpose of s 36(2)(aa) of the Migration Act 1958 (Cth)?
A delegate of the first respondent (Minister) refused to grant the Appellant a protection visa, after which the matter was referred to the Second Respondent, the Immigration Assessment Authority (IAA), for merits review. The IAA affirmed the delegate’s decision, after which the Appellant unsuccessfully applied to the Federal Circuit and Family Court for judicial review of the IAA’s decision. The Appellant then appealed to the Federal Court (FCA), arguing that:
- Grounds 1 and 3: the IAA failed to take into account the threat that underlaid the extortion that it accepted that the Appellant may experience upon return to Sri Lanka;
- Grounds 2 and 4: the IAA failed to consider whether the extortion which it accepted that the appellant may experience on return to Sri Lanka was “significant harm” for the purposes of the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth).
Some of the questions to the FCA were as follows:
Question 1: Can it be said that, by definition, an extortion is underpinned by a threat that some negative consequence will arise if the victim does not meet the demand"?
Question 2: May the serious harm feared by a protection visa applicant for the purposes of a refugee claim consist in the threat that the applicant will be subjected to some harmful consequences if the applicant does not modify his or her conduct in a certain way, for instance by not engaging in certain activity or by paying bribes or satisfying other extortionate demands?
Question 3: Does a finding that particular harm is not serious for the purpose of s 36(2)(a) of the Act necessarily lead to a corresponding finding that it is not significant harm for the purpose of s 36(2)(aa)?
The FCA answered those questions as follows: