Reasonableness of relocation applied to children?

Federal Court (Full Court): Does the relocation principle for complementary protection claims apply to children? For instance, if a child is making a protection visa application as a primary applicant, could the child claim, through their parents, that if they return to their country, they will choose an unsafe area for the child, with the result that, if that claim is accepted, the relocation principle will not apply?

The Appellant was born in Australia to parents who came from Nigeria.

The Appellant's parents and sister made their own protection visa application, which the Minister decided to refuse and which decision the Tribunal later on affirmed (the first Tribunal decision).

Subsequently, the Appellant, who was about 1 year old, applied for a protection visa in her own right, as a primary applicant, essentially making the same claims for protection as her parents and sister had made in their own protection visa application. The Appellant's visa application was made through the agency of her mother, given her age.

The Minister refused to grant the Appellant a protection visa. The Appellant then applied, again through her mother, to the AAT for review of the Minister's decision.

In that review application, the Appellant's representative "[indicated] that the [first Tribunal] decision should be considered and rejected".

The question before the Tribunal was whether the Appellant satisfied the complementary protection provision (s 36(2)(aa) of the Migration Act 1958 (Cth)), which read as follows:

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

Subsection 36(2)(2B)(a) relevantly provided as follows:

(2B) 

However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

The Tribunal decided that the Appellant, who had never lived in her parent's country of origin (Nigeria)  move to a safe village in Nigeria, as opposed to either of her parents' unsafe home villages.

As the Tribunal found that the Appellant could move to that safe village (i.e. that the relocation principle applied), it ultimately found that the Appellant was not owed protection under s 36(2)(aa). As a result, the AAT affirmed the Minister's decision (second Tribunal decision).

The record of second Tribunal's decision indicates that one of the reasons for affirming the Minister's decision were the reasons given as part of the first Tribunal's decision.

The Appellant then applied to the Federal Circuit Court (FCCA) through her mother for judicial review of the second Tribunal decision.

The FCCA dismissed that application and the Appellant eventually appealed the FCCA's decision to the Federal Court (FCA).

The questions to the FCA were as follows:

Question 1: Was it wrong for the Tribunal to find that the Appellant could relocate to a safe village in Nigeria, given that, as the child was only 1 year old at the time of the AAT's decision and was not capable of making decisions for herself, it was open to her parents to keep her at an unsafe village?

Question 2: if the answer to Question 1 is "yes", would not this decision 'be understood as an acceptance that, in a case where a protection claim is advanced on behalf of a child, the child’s parents might secure protection simply by saying, “if we are forced to leave Australia, we will take our child to a place where [he or she] will be persecuted, or where there is a real risk that significant harm might befall [him or her]”'?

Question 3: Did s 424A of the Act require the Tribunal to give to the Applicant clear particulars of part of the reason for affirming the Minister's decision, namely the ruling contained in the first Tribunal decision?

Question 4: The answer to Question 3 turned on an exception to the procedural fairness rule, contained in s 424A(3)(b), which read as follows:

(3) This section does not apply to information:

(b) that the applicant gave for the purpose of the application for review; or

Did the Appellant's "[indication to the Tribunal] that the [first Tribunal] decision should be considered and rejected" amount to the giving by the Appellant of the reasons of the first Tribunal decision by way of "incorporated reference (or "republication"), with the result that there was no denial of procedural fairness?

The FCAFC answered as follows:

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