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Published online by Cambridge University Press: 01 January 2025
Since 24 March 2012, asylum seekers whose claims are processed in Australia have been able to claim protection on broader grounds than those contained in the Refugee Convention. This is known as ‘complementary protection’. Complementary protection provides protection to those who face a real risk of arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman or degrading treatment or punishment if removed from Australia. This article provides an in-depth analysis of complementary protection in its first two years of operation in Australia. It examines: (a) the kinds of factual scenarios giving rise to complementary protection; (b) case law developments in relation to the content of, and exceptions to, the complementary protection criteria; and (c) the extent to which Australia's approach reflects international practice.
1 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) read together with the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘Refugee Convention’). The law in this article is current as at June 2014; the conclusion takes into account some proposed legislative changes up to November 2014.
2 For a detailed analysis of the changes to the law, set within an international and comparative context, see McAdam, Jane, ‘Australian Complementary Protection: A Step-by-Step Approach’ (2011) 33 Sydney Law Review 687.Google Scholar
3 These obligations arise pursuant to Australia's obligations under the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’), arts 6, 7; Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’), art 3; Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), arts 6, 37. Other non-refoulement obligations have been recognised in other contexts but have not been codified here, such as non-return to generalised violence in certain circumstances and non-return to an unfair trial.
4 Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted [2004] OJ L304/12, arts 2(e) and 15 (‘Qualification Directive’); Council Directive 2011/95/EU of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted (Recast) [2011] OJ L337/9, arts 2(f) and 15.
5 European Union (Subsidiary Protection) Regulations 2013 (Statutory Instrument 426 of 2013) (Ireland).
6 Immigration and Refugee Protection Act, SC 2001, c 27, s 97.
7 Immigration and Nationality Act, 8 CFR §§ 208.16–17 (1952) (CAT-based protection only).
8 Immigration Act 2009 (NZ) ss 130–1.
9 CAT-based protection only; refugee status determination is conducted by United Nations High Commissioner for Refugees (‘UNHCR’). See Loper, Kelley, ‘Human Rights, Non-refoulement and the Protection of Refugees in Hong Kong’ (2010) 22 International Journal of Refugee Law 404.CrossRefGoogle Scholar
10 Decreto por el que se expide la Ley sobre Refugiados y Protección Complementaria y se reforman, adicionan y derogan diversas disposiciones de la Ley General de Población [Law on Refugees and Complementary Protection] (Mexico) (9 December 2010) DOF 27/01/2011 <http://www.dof.gob.mx/nota_detalle.php?codigo=5175823&fecha=27/01/2011>.
11 Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama, 22 November 1984, in ‘Annual Report of the Inter-American Commission on Human Rights’ (1984–85) OAS Doc OEA/Ser.L/V/II.66/doc 10, rev 1, 190–93.
12 Convention Governing the Specific Aspects of Refugee Problems in Africa, opened for signature 10 September 1969, 1001 UNTS 45 (entered into force 20 June 1974).
13 This is an important consideration for any comparative analysis of the Australian system, since Australia confines the meaning and operation of certain elements of the refugee definition in a way that other legislative regimes may not (eg ‘good faith’ requirement in Migration Act 1958 s 91R(3)).
14 See McAdam, above n 2.
15 We maintain an online database of all such decisions, updated weekly: Andrew & Renata Kaldor Centre for International Refugee Law, UNSW, Case Summaries <http://www.kaldorcentre.unsw.edu.au/node/125>. Not all RRT decisions are made public. As RRT Deputy Principal Member Amanda MacDonald has explained:
On average the Tribunal publishes 40% of its decisions. Only decisions considered to be of ‘particular interest’ by the Principal Member are published, including those that represent a broad cross section of decisions having regard to factors such as the country of reference, the outcome of the review, whether there is detailed consideration of legal principles, and whether the factual circumstances are complex or unusual, or whether they are common to a large number of cases.
Amanda MacDonald, ‘Refugee Status Determination and the RRT’ (Speech delivered to the UNSW Forced Migration and Human Rights in International Law class, UNSW Material Sciences Building, 2 April 2012) 7 n 5 <http://www.mrt-rrt.gov.au/getattachment/Information-for/Community-(General-public)/Community-speeches-and-presentations/P-C-2012-04-PU-speech-UNSWLawClassPresentationDPM.pdf.aspx>.
References to unsuccessful decisions in this article are to 19 November 2013 – the volume of cases has precluded on-going detailed analysis.
16 To be specific, 49 ‘successful’ complementary protection decisions by the RRT had been uploaded on to the Australasian Legal Information Institute website (<http://www.austlii.edu.au/>) as at 13 June 2014. Since there is a backlog in uploading decisions, additional pre-13 June 2014 decisions may be yet to appear on the website.
17 Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Estimates (25 February 2014) 9 (Kay Ransome, Principal Member, Migration Review Tribunal and Refugee Review Tribunal).
18 Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013, Melbourne, 14 February 2014, 37 (Alison Larkins, Department of Immigration and Border Protection).
19 For the first time, in 2013–14 the government capped the number of protection visas available onshore. However, on 20 June 2014, the High Court found that this was invalid: Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25.
20 1219395 [2013] RRTA 633 (26 June 2013); 1301683 [2013] RRTA 765 (20 June 2013).
21 The terms are defined in s 5.
22 It provides that a beneficiary of complementary protection is someone ‘other than a non-citizen mentioned in paragraph (a)’. In MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 [40], the Full Federal Court confirmed that ‘[s]ection 36(2)(aa) is only engaged if the person who has applied for a protection visa cannot satisfy the criterion in s 36(2)(a)’; see also Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 [71]. However, in 1304445 [2013] RRTA 374 (29 May 2013) the applicant (from Nepal) did not raise any claims under the Refugee Convention and none were apparent to the RRT from the evidence provided. In that case, the RRT moved straight to a determination on the complementary protection grounds and found that the applicant was at risk of being arbitrarily deprived of his life by criminals seeking to harm him for being a police informant.
23 SZSMQ v Minister for Immigration and Border Protection [2013] FCCA 1768 (31 October 2013) [114] (Judge Nicholls).
24 Ibid [120]; see also SZSFK v Minister for Immigration and Citizenship [2013] FCCA 7 [89]–[92] (Judge Driver). ‘It was incumbent on him [the decision-maker] to engage with the language of s.36(2)(aa) and to consider the evidence relevant to that provision’: [92].
25 SZSHK v Minister for Immigration [2013] FCAFC 125 [37]; see also SZSLL v Minister for Immigration [2013] FCCA 2017.
26 SZSHK v Minister for Immigration [2013] FCAFC 125 [37].
27 [2013] FCA 1299 (‘WZARN’) [22], referring to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (‘NABE’) [58] in which the Court held that ‘a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.’
28 WZARN [2013] FCA 1299 [23], referring to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 [24] and NABE (2004) 144 FCR 1 [55]–[63], [68].
29 For discussion of these tests, see McAdam, above n 2, 715–22.
30 [2013] FCAFC 33 [246]–[248] (Lander and Gordon JJ) [297] (Besanko and Jagot JJ), [342] (Flick J). The Court found that the International Treaties Obligations Assessment (ITOA) erred in applying the wrong standard of proof — ‘more likely than not’ — in assessing the applicant's risk of significant harm. Thus, the ITOA was not carried out according to law. The High Court refused the Minister special leave to appeal on 13 December 2013.
31 Ibid [246]. See also ibid [242], citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 as the relevant authority for the ‘real chance’ test.
32 [2012] FCAFC 147 (‘MZYYL’) [31].
33 (2012) 206 FCR 494. In SZRTN v Minister for Immigration and Border Protection [2013] FCA 1156 [61], the Federal Court confirmed that the ‘real chance’ test was correct and that it would be wrong to apply a ‘balance of probabilities’ test.
34 See analysis in McAdam, above n 2, 716–22. For the sake of completeness, it should be noted that in Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497 [78] (review of a visa cancellation decision by the Administrative Appeals Tribunal), the Federal Court held that the tests under the Refugee Convention and the ICCPR were different. However, that case did not consider section 36(2)(aa) specifically and ‘as such may be distinguishable from the Court's more recent conclusions in MIAC v SZQRB’: RRT, A Guide to Refugee Law in Australia (Commonwealth of Australia, 2014) 10-9.Google Scholar Further, with respect, the Court seems to have misunderstood the application and function of the Refugee Convention and the ICCPR. Contrary to its view at [78]–[79], the harms encompassed by the Refugee Convention are not necessarily less serious than the harms contemplated by the ICCPR. ‘Persecution’ is a form of ‘cruel, inhuman or degrading treatment’ (and in some cases, a form of ‘torture’). While it is true that persecution can consist of less severe forms of harm than death or torture, jurisprudence on the meaning of ‘cruel, inhuman or degrading treatment’ shows that such treatment will not always be sufficiently severe or prolonged to amount to ‘persecution’. Note, however, that in New Zealand, ‘cruel, inhuman or degrading treatment’ is considered to amount to ‘persecution’: AC (Syria) [2011] NZIPT 800035 [80], [131].
35 McAdam, above n 2, 699.
36 Ibid 702–03.
37 See thematic decisions below.
38 Sultan Öner v Turkey (European Court of Human Rights, Application No 73792/01, 17 October 2006), [128]–[135]. See also Mubilanzila Mayeka v Belgium (European Court of Human Rights, Application No 13178/03 (12 October 2006), [62]–[63]. For cases before the UN Human Rights Committee, see Association for the Prevention of Torture and the Center for Justice and International Law, Torture in International Law: A Guide to Jurisprudence (2008) 45–46 <http://cejil.org/sites/default/files/torture_in_international_law.pdf>.
39 [2013] RRTA 173 (9 January 2013).
40 Ibid [108].
41 Ibid [109].
42 [2012] RRTA 850 (10 September 2012) [161].
43 [2013] FMCA 78 (‘SZRSN’).
44 See SZRSN v Minister for Immigration and Citizenship [2013] FCA 751. Note that the Federal Magistrates Court was re-named the Federal Circuit Court of Australia in April 2013.
45 SZRSN [2013] FMCA 78 [61].
46 Ibid [62].
47 Ibid [63].
48 Ibid [64] (emphasis in original).
49 Ibid [65] (emphasis added).
50 Ibid [66].
51 BG (Fiji) [2012] NZIPT 800091 [173]. Apart from critiquing the European approach, the Tribunal noted at [187] that it was in any event ‘inconsistent with the clear wording of the [NZ Immigration] Act’, which refers in section 131(1) to a ‘danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand’ (emphasis added by the Tribunal). See also [193], [196].
52 D v United Kingdom (European Court of Human Rights, Application No 30240/96, 2 May 1997) [40].
53 Ibid.
54 Ibid [49].
55 Ibid [53].
56 Ibid.
57 Ibid.
58 Ibid [52]. See also N v United Kingdom (European Court of Human Rights, Application No 26565/05, 27 May 2008) [42].
59 Indeed, in a dissenting judgment in N v United Kingdom (European Court of Human Rights, Application No 26565/05, 27 May 2008) [20], it was stated that ‘deportation of an “applicant on his or her death bed” would in itself be inconsistent with the absolute provision of Article 3 of the Convention’. See generally the discussion in McAdam, Jane, Climate Change, Forced Migration, and International Law (Oxford University Press, 2012) 65–76.CrossRefGoogle Scholar
60 D v United Kingdom (European Court of Human Rights, Application No 30240/96, 2 May 1997) [54].
61 SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 [57]–[58]; MZYYL [2012] FCAFC 147 [18], [20], [29].
62 Migration Act 1958 (Cth) ss 5, 36(2A).
63 1219981 [2013] RRTA 256 (28 March 2013) [38].
64 1220110 [2013] RRTA 281 (9 April 2013) [49]–[52].
65 1211590 [2012] RRTA 1115 (28 November 2012) [121]. Cf Sufi and Elmi v United Kingdom (European Court of Human Rights, Application Nos 8319/07 and 11449/07, 28 June 2011); MSS v Belgium and Greece (European Court of Human Rights, Application No 30696/09, 21 January 2011).
66 1201566 [2012] RRTA 677 (20 August 2012) [69].
67 1204341 [2012] RRTA 595 (16 July 2012) [67].
68 1203951 [2012] RRTA 582 (3 July 2012) [63]–[64]. See also SZRSN [2013] FMCA 78 [65].
69 1210591 [2013] RRTA 103 (5 February 2013) [70].
70 1203800 [2012] RRTA 850 (10 September 2012) [169].
71 SZSFX v Minister for Immigration and Border Protection [2013] FCCA 1309.
72 Migration Act 1958 (Cth) s 36(2)(aa).
73 See, eg, Tanis v Turkey (European Court of Human Rights, Application No 65899/01, 2 August 2005), [217]–[221]; Bazorkina v Russia (European Court of Human Rights, Application No 69481/01, 27 July 2006), [131]–[133]. For cases before the UN Human Rights Committee, see Association for the Prevention of Torture and the Center for Justice and International Law, Torture in International Law: A Guide to Jurisprudence (2008) <http://cejil.org/sites/default/files/torture_in_international_law.pdf> 45–6.
74 [2013] RRTA 173 (9 January 2013) [110].
75 Minister for Immigration and Citizenship v Anochie [2012] FCA 1440 [64], [67], referring to Pillai v Canada (UN Human Rights Committee, Communication No 1763/2008, 101st sess, UN Doc CCPR/C/101/D/1763/2008 (25 March 2011)). Although Pillai was not a complementary protection case, its conclusion is likely to be persuasive since it is based on the same provisions of the ICCPR and reflects contemporary international jurisprudence.
76 [2013] FCCA 1768 [83], [100].
77 Ibid [102]–[103].
78 [2013] FCA 614 [37]. Sections 36(2)(aa) and 36(2B)(a) ‘must be considered together and as a whole’: [39]. See also MZZKJ v Minister for Immigration and Border Protection [2013] FCCA 1770 [24]:
The First Respondent correctly identified that the test for relocation, with respect to the complementary protection criteria, is the same as that posed by the Court with respect to the criteria for the granting of a protection visa and further, that the issues which arise when considering the reasonableness of relocation in the complementary protection context are the same as those which arise in the refugee context.
79 SZSQH v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 817.
80 [2012] FCAFC 147.
81 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 [117] (Kirby J).
82 MZYYL [2012] FCAFC 147 [40]. According to the RRT, above n 34, 10–36: ‘Given the different standard implied by the language in s.36(2B)(b), judicial authority on the state protection test in the refugee context will not be directly applicable to assessment of the level of protection from an authority required by s.36(2B)(b).’
83 Goodwin-Gill, Guy S and McAdam, Jane, The Refugee in International Law (Oxford University Press, 3rd edn, 2007) 243.CrossRefGoogle Scholar
84 See, eg, Afghan and Syrian cases discussed below.
85 SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884 [34] (‘SZSFF’).
86 SZSRY v Minister for Immigration and Border Protection [2013] FCCA 1284 [74] (‘SZSRY’).
87 Ibid [79].
88 SZSFF [2013] FCCA 1884 [34] (emphasis added).
89 ‘I see no basis in the text of the Convention or otherwise for holding that, in conditions of civil war or unrest, a person can prove persecution only when he or she can establish a risk of harm over and above that of others caught up in those conditions’: Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 [70] (McHugh J), distinguishing the Australian position from the ‘differential impact’ approach of the House of Lords in Adan [1999] 1 AC 293, 311.
90 The extent to which an applicant must establish a personal risk of harm when fleeing armed conflict or generalised violence had been the subject of considerable judicial and scholarly debate in Europe: see, eg, International Association of Refugee Law Judges, ‘Examining Flight from Generalized Violence in Situations of Conflict: An Annotated Bibliography on Article 15(c) of the Qualification Directive’ (Third Report, Convention Refugee Status and Subsidiary Protection Working Party, Bled, Slovenia, September 2011) <http://www.iarlj.org/general/images/stories/BLED_conference/papers/WP_1951_Conv_-_J_McAdam.pdf>; McAdam, above n 2, 711–15.
91 Elgafaji v Staatssecretaris van Justitie (Court of Justice of the European Union, C-465/07, 17 February 2009) [43].
92 Ibid. See also the approach in AM & AM (Armed Conflict: Risk Categories) Somalia CG [2008] UKAIT 00091 [110] (CG means country guidance case); Lukman Hameed Mohamed v Secretary of State for the Home Department, AA/14710/2006 (unreported, 16 August 2007): ‘It would be ridiculous to suggest that if there were a real risk of serious harm to members of the civilian population in general by reason of indiscriminate violence that an individual Appellant would have to show a risk to himself over and above that general risk’, cited in UNHCR, ‘UNHCR Statement: Subsidiary Protection under the EC Qualification Directive for People Threatened by Indiscriminate Violence’ (January 2008) 6. See also European Council on Refugees and Exiles (ECRE) and European Legal Network on Asylum (ELENA), ‘The Impact of the EU Qualification Directive on International Protection’ (October 2008) 26–9.
93 Sufi and Elmi v United Kingdom (European Court of Human Rights, Chamber, Application Nos 8319/07 and 11449/07, 28 June 2011) [250].
94 Surajnarain v Canada (Minister of Citizenship and Immigration) [2008] FC 1165 [11]. See also Salibian v Canada (Minister of Citizenship and Immigration) [1990] 3 FC 250, 259; Sinnappu v Canada (Minister of Citizenship and Immigration) [1997] 2 FC 791 (TD) [37]; Prophète v Canada (Minister of Citizenship and Immigration) [2008] FC 331; Prophète v Canada (Minister of Citizenship and Immigration) [2009] FCA 31; Re WXY [2003] RPDD No 81. See also Re WVZ [2003] RPDD No 106 (in relation to a Sri Lankan claimant).
95 MZYYL [2012] FCAFC 147 [29].
96 Ibid [20]. See also SZRTN v Minister for Immigration and Citizenship [2013] FCCA 583 [43] (upheld on appeal in SZRTN v Minister for Immigration and Border Protection [2013] FCA 1156), where the Court stated: ‘The “technical” meanings of phrases, derived from academic studies, also do not assist in light of the definition in the Act’.
97 RRT, above n 34, ch 10, 10–24, n 100, referring to Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, section 22 (as re-issued 1 January 2014).
98 See, eg, SZSWB v Minister for Immigration and Border Protection [2014] FCCA 765.
99 SZSYP v Minister for Immigration and Border Protection [2014] FCCA 7 [18]; see also SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989.
100 See, eg, ibid; 1301683 [2013] RRTA 765 (20 June 2013).
101 Practice Directions: Immigration and Asylum Chambers of the First-Tier Tribunal and the Upper Tribunal (10 February 2010) [12.1]–[12.4]; Upper Tribunal Immigration and Asylum Chamber, ‘Reporting Decisions of the Upper Tribunal Immigration and Asylum Chamber’ (Guidance Note 2011 No 2, issued July 2011, amended February 2012 and September 2013) [10] <http://www.justice.gov.uk/downloads/tribunals/immigration-and-asylum/upper/guidance-note-no2-reporting-decisions-of-the-utiac.pdf>; Nationality, Immigration and Asylum Act 2002 (UK) s 107(3)(b).
102 In 1217750 [2013] RRTA 82 (29 January 2013), the applicant had a well-founded fear of persecution by reason of his membership of a particular social group (‘male members of [Mr A's family] threatened with death as a result of a blood feud with [Mr B's family]’), but was not recognised as a refugee due to the operation of s 91S of the Migration Act. There was a similar finding in 1300803 [2013] RRTA 635 (18 March 2013). In 1205075 [2012] RRTA 851 (19 September 2012), the applicant had engaged in Falun Gong activities in Australia to such a considerable extent that it would be dangerous for her to return to China, but was not recognised as a refugee due to the operation of s 91R(3) of the Act, which required the RRT to disregard the applicant's Falun Gong activities in Australia. There was a similar finding in 1212050 [2013] RRTA 873 (12 February 2013), concerning the risk of harm to the applicant in China because of her participation in Uighur political and cultural gatherings in Sydney. Sections 91S and 91R(3) of the Act do not apply to complementary protection claims.
103 Cf 1219395 [2013] RRTA 633 (26 June 2013); 1301683 [2013] RRTA 765 (20 June 2013). In these cases, the applicants were not recognised as refugees because the harm that they faced in their country of origin was not considered to amount to ‘persecution’.
104 This is based on searches of the European Database of Asylum Law, the UK Asylum and Immigration Tribunal, the Canadian Immigration and Refugee Board (IRB), and the 2006 analysis of Canadian and French jurisprudence undertaken for the International Association of Refugee Law Judges (ed), Forced Migration and the Advancement of International Protection (Proceedings of the 7th World Conference, 2006)Google Scholar: Jessica Reekie and Carolyn Layden-Stevenson, ‘Complementary Refugee Protection in Canada: The History and Application of Section 97 of the Immigration and Refugee Protection Act (IRPA)’; Vera Zederman, ‘The French Reading of Subsidiary Protection’; and Laurent Dufour, ‘The 1951 Geneva Convention and Subsidiary Protection: Uncertain Boundaries’ <http://www.iarlj.org/general/working-parties/154-wp-papers-7th-world-conference>.
105 See, eg, discussion in ‘Persecution’ (last updated January 2014) in RRT, above n 34, 4-12–4-17; de Costa, Alex, ‘Assessing the Cause and Effect of Persecution in Australian Refugee Law: Sarrazola, Khawar and the Migration Legislation Amendment Act (No 6) 2001 (Cth)’ (2002) 30(3) Federal Law Review 535.CrossRefGoogle Scholar
106 1303849 [2013] RRTA 469 (18 July 2013); 1300431 [2013] RRTA 863 (26 March 2013); 1300803 [2013] RRTA 635 (18 March 2013); 1300935 [2013] RRTA 865 (7 March 2013); 1218999 [2013] RRTA 864 (6 March 2013); 1301427 [2013] RRTA 623 (14 February 2013); 1220694 [2013] RRTA 171 (12 February 2013); 1217334 [2013] RRTA 96 (31 January 2013); 1220697 [2013] RRTA 98 (25 January 2013); 1220444 [2013] RRTA 97 (24 January 2013); 1214218 [2013] RRTA 92 (22 January 2013); 1217298 [2013] RRTA 81 (21 January 2013); 1217778 [2013] RRTA 67 (9 January 2013); 1215348 [2013] RRTA 55 (2 January 2013); 1216094 [2012] RRTA 1155 (14 December 2012); 1214661 [2012] RRTA 1151 (13 December 2012); 1216720 [2012] RRTA 1141 (30 November 2012); 1215936 [2012] RRTA 1140 (29 November 2012); 1214761 [2012] RRTA 1032 (16 November 2012); 1214160 [2012] RRTA 962 (25 October 2012); 1213303 [2012] RRTA 859 (11 October 2012); 1210224 [2012] RRTA 920 (19 September 2012); 1212321 [2012] RRTA 775 (28 August 2012).
107 1303849 [2013] RRTA 469 (18 July 2013) (Daikundi Province); 1218999 [2013] RRTA 864 (6 March 2013) (Kabul Province).
108 Successful cases: 1303849 [2013] RRTA 469 (18 July 2013); 1300431 [2013] RRTA 863 (26 March 2013); 1300935 [2013] RRTA 865 (7 March 2013); 1301427 [2013] RRTA 623 (14 February 2013); 1220694 [2013] RRTA 171 (12 February 2013); 1217334 [2013] RRTA 96 (31 January 2013); 1220697 [2013] RRTA 98 (25 January 2013); 1220444 [2013] RRTA 97 (24 January 2013); 1217298 [2013] RRTA 81 (21 January 2013); 1217778 [2013] RRTA 67 (9 January 2013); 1216094 [2012] RRTA 1155 (14 December 2012); 1216720 [2012] RRTA 1141 (30 November 2012); 1215936 [2012] RRTA 1140 (29 November 2012); 1213303 [2012] RRTA 859 (11 October 2012); 1212321 [2012] RRTA 775 (28 August 2012). Compare these cases with unsuccessful cases: see, eg, 121078 [2012] RRTA 954 (23 October 2012); 1211917 [2012] RRTA 1116 (17 December 2012); 1214851 [2013] RRTA 1 (25 February 2013); 1219643 [2013] RRTA 217 (12 March 2013); 1217128 [2013] RRTA 247 (20 March 2013).
109 Successful cases: 1214218 [2013] RRTA 92 (22 January 2013); 1215348 [2013] RRTA 55 (2 January 2013); 1214661 [2012] RRTA 1151 (13 December 2012); 1214160 [2012] RRTA 962 (25 October 2012).
110 Successful cases: 1214761 [2012] RRTA 1032 (16 November 2012); 1210224 [2012] RRTA 920 (19 September 2012). Compare these cases with unsuccessful cases: see, eg, 1213265 [2012] RRTA 1136 (23 November 2012); 1219643 [2013] RRTA 217 (12 March 2013).
111 1218999 [2013] RRTA 864 (6 March 2013) [135].
112 1217334 [2013] RRTA 96 (31 January 2013); 1217298 [2013] RRTA 81 (21 January 2013).
113 121078 [2012] RRTA 954 (23 October 2012).
114 1214851 [2013] RRTA 1 (25 February 2013); 1219643 [2013] RRTA 217 (12 March 2013).
115 1211917 [2012] RRTA 1116 (17 December 2012); 1217128 [2013] RRTA 247 (20 March 2013).
116 Thirteen of the 15 cases were decided by Tribunal Member David Corrigan. Specifically, the location of the danger in each case was identified to be:
• roads surrounding Jaghori/Malistan in Ghazni Province: 1300431 [2013] RRTA 863 (26 March 2013); 1300935 [2013] RRTA 865 (7 March 2013); 1301427 [2013] RRTA 623 (14 February 2013); 1220694 [2013] RRTA 171 (12 February 2013); 1220697 [2013] RRTA 98 (25 January 2013); 1220444 [2013] RRTA 97 (24 January 2013); 1217778 [2013] RRTA 67 (9 January 2013); 1216094 [2012] RRTA 1155 (14 December 2012); 1216720 [2012] RRTA 1141 (30 November 2012); 1215936 [2012] RRTA 1140 (29 November 2012); 1213303 [2012] RRTA 859 (11 October 2012); 1212321 [2012] RRTA 775 (28 August 2012);
• roads surrounding Jaghori/[District 1] in Ghazni Province and on return from Kabul: 1217334 [2013] RRTA 96 (31 January 2013); 1217298 [2013] RRTA 81 (21 January 2013);
• roads in and surrounding Daikundi Province and on return from Kabul: 1303849 [2013] RRTA 469 (18 July 2013).
117 In the two cases decided by RRT Member Christian Carney, this political motivation was identified: 1217334 [2013] RRTA 96 (31 January 2013); 1217298 [2013] RRTA 81 (21 January 2013).
118 AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC) [244].
119 In all but two cases, the RRT identified the applicant's need to travel on dangerous roads to seek employment and/or medical services to support his family: cf 1217334 [2013] RRTA 96 (31 January 2013); 1217298 [2013] RRTA 81 (21 January 2013).
120 In cases decided by RRT Member David Corrigan, it was noted that agriculture was the main source of employment and income in Ghazni/Daikundi. Hence, applicants with no skills or experience in agriculture would likely need to travel outside the district to seek employment. Nevertheless, even in cases where applicant had work experience in agriculture, RRT Member David Corrigan found that the applicant might need to travel for work in order to support himself and his family: see 1300431 [2013] RRTA 863 (26 March 2013) [90]; 1220444 [2013] RRTA 97 (24 January 2013) [77]; 1217778 [2013] RRTA 67 (9 January 2013) [82]; 1216094 [2012] RRTA 1155 (14 December 2012) [77].
121 1303849 [2013] RRTA 469 (18 July 2013); 1217334 [2013] RRTA 96 (31 January 2013); 1217298 [2013] RRTA 81 (21 January 2013). Presumably, all applicants from Ghazni/Daikundi would need to travel on the roads for this reason.
122 See cases at above n 116.
123 See 1217334 [2013] RRTA 96 (31 January 2013) [132]; 1217298 [2013] RRTA 81 (21 January 2013).
124 See 1217334 [2013] RRTA 96 (31 January 2013) [129]–[130]; 1217298 [2013] RRTA 81 (21 January 2013) [141]–[142].
125 1217334 [2013] RRTA 96 (31 January 2013) [130]; 1217298 [2013] RRTA 81 (21 January 2013) [142].
126 1217334 [2013] RRTA 96 (31 January 2013) [130].
127 1217298 [2013] RRTA 81 (21 January 2013) [142].
128 1300803 [2013] RRTA 635 (18 March 2013); 1214218 [2013] RRTA 92 (22 January 2013); 1215348 [2013] RRTA 55 (2 January 2013); 214661 [2012] RRTA 1151 (13 December 2012); 214160 [2012] RRTA 962 (25 October 2012).
129 1300803 [2013] RRTA 635 (18 March 2013).
130 1214218 [2013] RRTA 92 (22 January 2013) [135]: arbitrary deprivation of life; 1214661 [2012] RRTA 1151 (13 December 2012) [86]: arbitrary deprivation of life; 1215348 [2013] RRTA 55 (2 January 2013): not specified; 1214160 [2012] RRTA 962 (25 October 2012): not specified (but see [31] where the applicant said he would suffer cruel or inhuman treatment and degrading treatment, through physical violence and the denial of social and economic rights).
131 1215348 [2013] RRTA 55 (2 January 2013); 1214160 [2012] RRTA (25 October 2012).
132 1215348 [2013] RRTA 55 (2 January 2013).
133 See, eg, Hehao, 13/1012/3, Helsinki Administrative Court, Finland (3 September 2013) <http://www.asylumlawdatabase.eu/en/case-law/finland-helsinki-administrative-court-3-september-2013-hehao-1310123>; M and Others (Kurds–Protection–Relocation) Iraq CG [2005] UKIAT 00111; SI (Expert Evidence, Kurd, SM Confirmed) Iraq CG [2008] UKAIT 00094; X (Re), 2011 CanLII 97018 (IRB, Canada); X (Re), 2009 CanLII 87989 (IRB, Canada); SN v Office of Immigration and Nationality, 3 K.31.192/2012/6, Administrative and Labour Court of Budapest, Hungary (4 July 2012) <http://www.asylumlawdatabase.eu/en/case-law/hungary-administrative-and-labour-court-budapest-4-july-2012-sn-v-office-immigration-and>.
134 Specifically, in 1214761 [2012] RRTA 1032 (16 November 2012), the applicant, although born in Jaghori, had lived all but six years of his life in Pakistan (Quetta and Karachi) and Iran (Tehran, Sharestan and Shiraz), had adopted a Pakistani lifestyle and spoke Hazaragi with an identifiable Pakistani accent. In 1210224 [2012] RRTA 920 (19 September 2012), the applicant had been absent from Afghanistan for 46 years, after having left his home village in Jaghori for Pakistan as an infant.
135 1210224 [2012] RRTA 920 (19 September 2012) [89].
136 This was also the case for land dispute cases. In that context, compare the cases in which information from the Danish Immigration Service was relied upon (1214661 [2012] RRTA (13 December 2013) [147]; 1214160 [2012] RRTA 962 (25 October 2012) [88]), with those where UNHCR Guidelines were used (1214218 [2013] RRTA 92 (22 January 2013) [145]). Both were used in 1215348 [2013] RRTA 55 (2 January 2013) [114].
137 1214761 [2012] RRTA 1032 (16 November 2012) [102].
138 Ibid [101].
139 Ibid [103].
140 1210224 [2012] RRTA 920 (19 September 2012) [95], [88]–[92].
141 Ibid [91].
142 Ibid [87].
143 Ibid [92].
144 Ibid [96].
145 1210224 [2012] RRTA 920 (19 September 2012) [101].
146 Ibid. Unlike in the case of 1214761 [2012] RRTA 1032 (16 November 2012), the RRT in this case drew attention to how the applicant's long absence from Afghanistan affected the reasonableness of relocation.
147 1210224 [2012] RRTA 920 (19 September 2012) [102].
148 Ibid [99].
149 Ibid [98].
150 1219643 [2013] RRTA 217 (12 March 2013) [21]. The applicant's age at the time that he left Afghanistan for Pakistan was withheld from publication.
151 Ibid [109].
152 Ibid [143].
153 1208795 [2012] RRTA 899 (18 September 2012).
154 1216120 [2013] RRTA 359 (17 May 2013).
155 She had previously been stabbed (resulting in six months’ hospitalisation), strangled and raped by her first husband, and also suffered intermittent low-level harassment: 1208795 [2012] RRTA 899 (18 September 2012) [117]–[121], [132], [134].
156 Ibid [121].
157 1216120 [2013] RRTA 359 (17 May 2013) [117].
158 Ibid [120].
159 Ibid.
160 Ibid [121]–[128].
161 Ibid [127].
162 Ibid.
163 Ibid.
164 1208795 [2012] RRTA 899 (18 September 2012) [135].
165 Ibid.
166 Ibid [138]–[139].
167 Ibid [139].
168 Ibid [140]–[142].
169 Ibid [140]–[141].
170 See, eg, FS (Domestic Violence SN and HM–OGN) Pakistan CG [2006] UKAIT 00023.
171 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; X (Re), 2011 CanLII 97008 (IRB, Canada); No 99380, Belgian Council of Alien Law Litigation (21 March 2013) <http://www.asylumlawdatabase.eu/en/case-law/belgium-council-alien-law-litigation-21-march-2013-no-99380>;No 13874, Belgian Council of Alien Law Litigation (9 July 2008) <http://www.asylumlawdatabase.eu/en/case-law/belgium-council-alien-law-litigation-9-july-2008-nr-13874>; RS v Ministry of Interior, 6 Azs 36/2010-274, Czech Republic Supreme Administrative Court (25 January 2011) <http://www.asylumlawdatabase.eu/en/case-law/czech-republic-supreme-administrative-court-25-january-2011-rs-v-ministry-interior-6-azs>.
172 1218461 [2013] RRTA 121 (13 February 2013) [55].
173 Ibid [58].
174 Ibid [61]–[63].
175 1201591 [2012] RRTA 739 (28 August 2012) [67].
176 Ibid.
177 Ibid [70].
178 1206840 [2012] RRTA 732 (24 August 2012) [115].
179 Ibid.
180 Ibid.
181 Ibid [101]–[110], [117].
182 1201591 [2012] RRTA 739 (28 August 2012) (Macedonia); 1204874 [2012] RRTA 731 (23 August 2012) (Vietnam).
183 SI (Expert Evidence, Kurd, SM Confirmed) Iraq CG [2008] UKAIT 00094 [70].
184 1212298 [2012] RRTA 1069 (19 December 2012) [89]; 1212453 [2012] RRTA 977 (1 November 2012) [98]; 1206698 [2012] RRTA 891 (16 October 2012) [60], [63], [66], [69], [71]. In 1212298 [2012] RRTA 1069 (19 December 2012) [89], the RRT acknowledged that, in some circumstances, there might exist a particular social group comprised of people who had breached social, religious or tribal mores, or dishonoured their family. However, the RRT did not accept that this was the case here. This is because the country information suggested that in Iraqi society, there were many possible ways in which a person could be considered to have infringed mores or to have invited dishonour. This lack of commonality meant that there was no group ‘identifiable by a characteristic or attribute common to all members’ and no common characteristic or attribute that distinguished the group from society at large.
In 1206698 [2012] RRTA 891 (16 October 2012), the RRT found that ‘Pakistani women facing honour killing’ did not constitute a particular social group because the shared characteristic was the feared harm of an honour killing: [69].
185 1206698 [2012] RRTA 891 (16 October 2012).
186 1301060 [2013] RRTA 622 (1 March 2013); 1212298 [2012] RRTA 1069 (19 December 2012); 1212453 [2012] RRTA 977 (1 November 2012).
187 1218999 [2013] RRTA 864 (6 March 2013) [135].
188 1301060 [2013] RRTA 622 (1 March 2013) [174].
189 Ibid [174]–[175].
190 Ibid [179]–[180].
191 1212298 [2012] RRTA 1069 (19 December 2012) [87].
192 Ibid [85], [88].
193 Ibid [95].
194 Ibid [92], [95].
195 1212453 [2012] RRTA 977 (1 November 2012) [22]–[39].
196 Ibid [97].
197 Ibid [99].
198 1212298 [2012] RRTA 1069 (19 December 2012) [82]–[83], [97]. See also 1212453 [2012] RRTA 977 (1 November 2012) [100].
199 1212298 [2012] RRTA 1069 (19 December 2012) [97].
200 1212298 [2012] RRTA 1069 (19 December 2012) [98].
201 Ibid.
202 1206698 [2012] RRTA 891 (16 October 2012).
203 Ibid [53].
204 Ibid [51], [77].
205 Ibid [78].
206 Ibid.
207 Ibid [80].
208 Ibid.
209 Ibid [54].
210 1206698 [2012] RRTA 891 (16 October 2012) [82].
211 UM 837-06, Swedish Migration Court of Appeal (15 June 2007) European Database of Asylum Law <http://www.asylumlawdatabase.eu/en/case-law/sweden-migration-court-appeal-15-june-2007-um-837-06>; RG (Sufficiency of Protection – Honour Killings – KAA) Iraq CG [2002] UKAIT 05788 (unsuccessful on credibility grounds).
212 See, eg, X (Re), 2000 CanLII 21446 (IRB, Canada); A 10 K 13/07, Administrative Court of Stuttgart, Germany (8 September 2008) European Database of Asylum Law <http://www.asylumlawdatabase.eu/en/case-law/germany-administrative-court-stuttgart-8-september-2008-10-k-1307>.
213 1217750 [2013] RRTA 82 (29 January 2013).
214 See, eg, 1305442 [2013] RRTA 887 (23 December 2013) (Columbia — extortion); 1302314 [2013] RRTA 847 (10 December 2013) (Pakistan — extortion); 1215413 [2013] RRTA 346 (24 May 2013) (Colombia — extortion); 1112558 [2013] RRTA 858 (9 May 2013) (China — extortion); 1304445 [2013] RRTA 374 (29 May 2013) (Nepal — police informant); 1108957 [2012] RRTA 502 (29 June 2012) (Nigeria — militants wished to silence the applicant); 1114038 [2012] RRTA 343 (18 May 2012) (El Salvador — extortion).
215 See, eg, AB (Protection – Criminal Gangs – Internal Relocation) Jamaica CG [2007] UKAIT 00018.
216 See, eg, Re IDQ [2002] RPDD No 189 (extortion); Re XHN [2002] RPDD No 168 (‘common criminals’); Re ZZE [2003] RPDD No 14 (extortion); Re WCZ [2003] RPDD No 425 (threatened as witness in murder trial); Re YAT [2004] RPDD No 10; Re VSI [2004] RPDD No 284; Re EYL [2002] RPDD No 187 (mob violence) cited in Reekie and Layden-Stevenson, above n 104.
217 For instance, the French Refugee Appeals Board has granted subsidiary protection to a Nigerian ill-treated by offenders, who wanted him to join their group (Mr Umokoro, CRR, 22 December 2004); to an Ukrainian who was swindled out of his money by Tartar offenders (Mr Fateyenko et Ms Okopski Fattyenkova, CRR, 3 February 2005; to Albanian claimants, mugged by a gang, or victims of a vendetta and of the ‘Kânun law’ (a system of revenge, by which the family of deceased tries to recover his/her honour by killing a member of the murderer's family) (Mr Ndreca, CRR, 3 March 2005; Mr Vukaj, CRR, 4 February 2005); and to claimants who exposed criminal acts (Miss Z, CRR, 8 February 2005; Mr Kahn, CRR, 2 April 2005) cited in Zederman, above n 104.
218 SI (Expert Evidence, Kurd, SM Confirmed) Iraq CG [2008] UKAIT 00094 [70].
219 1217750 [2013] RRTA 82 (29 January 2013) [79]–[80]; see also 1300803 [2013] RRTA 635 (18 March 2013).
220 1217750 [2013] RRTA 82 (29 January 2013) [81].
221 With respect to the possibility that blood feuds may give rise to refugee status, compare the approaches of the UK and Canada: Secretary of State for the Home Department v K; Fornah v Secretary of State for the Home Department [2006] UKHL 46 (18 October 2006) [45], recognising that families or clans can constitute a particular social group, in particular citing UNHCR, UNHCR Position on Claims for Refugee Status under the 1951 Convention relating to the Status of Refugees based on a Fear of Persecution due to an Individual's Membership of a Family or Clan Engaged in a Blood Feud (17 March 2006) 5; Zefi, Sheko v MCI 2003 FCT 636 (21 May 2003) [40], noting that victims of a blood feud or vendetta generally do not amount to a particular social group for the purposes of the Refugee Convention.
222 See EH (Blood Feuds) Albania CG [2012] UKUT 00348 (IAC) (15 October 2012) [74] (note that the paragraph numbers are listed like this in the original judgment).
223 Ibid.
224 Ibid; see also TB (Blood Feuds, Relevant Risk Factors) Albania CG [2004] UKIAT 00158; DK (Protection–Blood Feud) Albania [2002] UKIAT 08006; KF (IFA, Blood Feud) Albania [2002] UKIAT 01419.
225 X (Re), 2011 CanLII 94672 (IRB, Canada); X (Re), 2009 CanLII 89876 (IRB, Canada); X (Re), 2009 CanLII 88420 (IRB, Canada); X (Re), 2011 CanLII 97825 (IRB, Canada).
226 See, eg, 4251/2005, Spanish Supreme Court (2 January 2009) European Database of Asylum Law <http://www.asylumlawdatabase.eu/en/case-law/spain-supreme-court-2-january-2009-42512005#content>; 8233/2003, Spanish Supreme Court (14 December 2006) European Database of Asylum Law <http://www.asylumlawdatabase.eu/en/case-law/spain-%E2%80%93-supreme-court-14-december-2006-n%C2%BA-82332003>.
227 1215413 [2013] RRTA 346 (24 May 2013) [12]–[14], [16]–[19].
228 Ibid [32]–[34], [46].
229 Ibid [48].
230 1114038 [2012] RRTA 343 (18 May 2012) [101].
231 Ibid [107].
232 1213768 [2013] RRTA 188 (12 March 2013); cf 1209432 [2012] RRTA 939 (19 October 2012) (Vietnam; relocation was considered reasonable; State protection was available).
233 1213768 [2013] RRTA 188 (12 March 2013) [53].
234 Ibid [61]–[62].
235 Ibid [62], [67], [68].
236 Ibid [63], [71].
237 See, eg, AA (Persecution – ‘Causing’ – Public Affection – Religion – Unmarried) Iraq CG [2002] UKIAT 07246; X (Re), 2010 CanLII 98921 (IRB, Canada).
238 1216433 [2012] RRTA 1122 (17 December 2012); 1318565 [2014] RRTA 191 (12 March 2014).
239 1216433 [2012] RRTA 1122 (17 December 2012) [74].
240 Ibid [92].
241 Ibid [78].
242 See, eg, 1202628 [2012] RRTA 514 (21 June 2012) (Mauritius); 1111399 [2012] RRTA 606 (13 July 2012) (Egypt); 1212872 [2013] RRTA 173 (9 January 2013) (Sri Lanka); 1204149 [2012] RRTA 648 (31 July 2012) (China); 1205309 [2012] RRTA 784 (6 September 2012) (China); 1204839 [2012] RRTA 890 (18 September 2012) (Malaysia); 1210559 [2012] RRTA 942 (19 October 2012) (Sri Lanka). For instance, in 1111399 [2012] RRTA 606 (13 July 2012) (Egypt), it held that simply being unable to pay a debt and thus facing gaol time for breach of contract did not to amount to significant harm. See also comparative jurisprudence in this regard: HL (Risk – Return – Snakeheads) China CG [2002] UKIAT 03683; TT (Risk – Return – Snakeheads) China CG [2002] UKIAT 04937; X (Re), 2010 CanLII 96176 (IRB, Canada), X (Re), 2007 CanLII 80681 (IRB, Canada) and X (Re), 2005 CanLII 77851 (IRB, Canada); X v Canada (IRB) 2001 CanLII 26962 (IRB, Canada).
243 1318565 [2014] RRTA 191 (12 March 2014) [69].
244 1215009 [2013] RRTA 288 (9 April 2013); 1213356 [2013] RRTA 287 (8 April 2013); 1213043 [2013] RRTA 187 (29 March 2013). All three cases were decided by RRT Member Filip Gelev.
245 1213356 [2013] RRTA 287 (8 April 2013) (Talkalakh); 1213043 [2013] RRTA 187 (29 March 2013) ([Town 1]).
246 1215009 [2013] RRTA 288 (9 April 2013).
247 Ibid [17]–[19]; 1213356 [2013] RRTA 287 (8 April 2013) [20]–[23]; 1213043 [2013] RRTA 187 (29 March 2013) [29]–[32].
248 1215009 [2013] RRTA 288 (9 April 2013) [19]; 1213356 [2013] RRTA 287 (8 April 2013) [23]; 1213043 [2013] RRTA 187 (29 March 2013) [32].
249 1215009 [2013] RRTA 288 (9 April 2013) [25]; 1213356 [2013] RRTA 287 (8 April 2013) [29]; 1213043 [2013] RRTA 187 (29 March 2013) [37].
250 1215009 [2013] RRTA 288 (9 April 2013) [25]; 1213356 [2013] RRTA 287 (8 April 2013) [29]; 1213043 [2013] RRTA 187 (29 March 2013) [37].
251 1215009 [2013] RRTA 288 (9 April 2013) [25]; 1213356 [2013] RRTA 287 (8 April 2013) [29]. In 1213043 [2013] RRTA 187 (29 March 2013) [37], the RRT also referred to the fact that the applicant was a young woman, that it was likely she would have to return to Syria by herself, without the protection of her Australian citizen husband, and that she would therefore be ‘highly vulnerable’.
252 1215009 [2013] RRTA 288 (9 April 2013) [24]; 1213356 [2013] RRTA 287 (8 April 2013) [28]; 1213043 [2013] RRTA 187 (29 March 2013) [36].
253 1215009 [2013] RRTA 288 (9 April 2013) [20]–[23]; 1213356 [2013] RRTA 287 (8 April 2013) [24]–[27]; 1213043 [2013] RRTA 187 (29 March 2013) [33]–[35].
254 1213043 [2013] RRTA 187 (29 March 2013) (unnamed town near Homs); 1213356 [2013] RRTA 287 (8 April 2013) (Talkalakh near Homs); 1215009 [2013] RRTA 288 (9 April 2013) (Harasta in Damascus).
255 1215009 [2013] RRTA 288 (9 April 2013) [23]; 1213356 [2013] RRTA 287 (8 April 2013) [27]; 1213043 [2013] RRTA 187 (29 March 2013) [35].
256 1215009 [2013] RRTA 288 (9 April 2013) [22]; 1213356 [2013] RRTA 287 (8 April 2013) [26]; 1213043 [2013] RRTA 187 (29 March 2013) [35].
257 1201460 [2012] RRTA 910 (20 September 2012); 1202004 [2012] RRTA 837 (20 September 2012). Both of these cases were decided by RRT Member Shahyar Roushan.
258 In 2013, 62 per cent were granted subsidiary protection: Julia Zelvenska, ECRE's View on the Situation of Syrian Refugees in the EU (30 April 2014) 1 Equality, Support, Anti-racism <http://kisa.org.cy/wp-content/uploads/2014/04/ECRE_Speech_Syrian_Refugees_In_Cyprus_30.04.2014.pdf>.
259 Human Rights Watch, EU: Provide Protection for Syrian Refugees (23 December 2012) <http://www.hrw.org/news/2012/12/23/eu-provide-protection-syrian-refugees>.
260 Elgafaji v Staatssecretaris van Justitie (Court of Justice of the European Union, C-465/07, 17 February 2009) [39].
261 1217887 [2014] RRTA 12 (15 January 2014); 1305331 [2013] RRTA 877 (11 November 2013); 1301683 [2013] RRTA 765 (20 June 2013); 1213768 [2013] RRTA 188 (12 March 2013).
262 1213768 [2013] RRTA 188 (12 March 2013).
263 1217887 [2014] RRTA 12 (15 January 2014) [66], [91].
264 Ibid [71]–[75], [91].
265 Ibid [91].
266 Ibid [92].
267 1301683 [2013] RRTA 765 (20 June 2013) [35].
268 Ibid [52], [54].
269 Ibid [64].
270 1305331 [2013] RRTA 877 (11 November 2013) [68].
271 Ibid [65], [68], [82].
272 For a recent overview, see European Court of Human Rights, ‘Factsheet: Detention Conditions and Treatment of Prisoners’ (March 2014) <http://www.echr.coe.int/Documents/FS_Detention_conditions_ENG.pdf>.
273 See, eg, MSS v Belgium and Greece (European Court of Human Rights, Application No 30696/09, 21 January 2011).
274 UK Home Office, ‘Humanitarian Protection’ (15 May 2013), 3.4 (emphasis in original) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257431/huma-prot.pdf>. ‘Humanitarian protection’ is the UK equivalent of complementary protection.
275 See, eg, Kilic v Canada (Minister of Citizenship and Immigration) [2004] FC 84 (concerning the risk of imprisonment faced by a Turkish conscientious objector).
276 See Second Reading Speech of Migration Legislation Amendment Bill (No 6) 2001 in Commonwealth, Parliamentary Debates, House of Representatives (28 August 2001) 30,420ff (Philip Ruddock); Commonwealth, Parliamentary Debates, Senate (24 September 2001) 27,603ff (Robert Hill).
277 For a critique of its operation, see, eg, Driver, Rolf, ‘Asylum Claims Made in Bad Faith Under the Refugees Convention: The Australian Experience’ (2011) 30 Refugee Survey Quarterly 96CrossRefGoogle Scholar; Mathew, Penelope, ‘Limiting Good Faith: “Bootstrapping” Asylum Seekers and Exclusion from Refugee Protection’ (2011) 29 Australian Year Book of International Law 135CrossRefGoogle Scholar; Susan Kneebone, ‘Bouncing the Ball Between the Courts and the Legislature: What is the Score on Refugee Issues?’ (Paper presented at Castan Centre for Human Rights Law Conference, ‘Human Rights 2003: The Year in Review’, Melbourne, 4 December 2003) <http://www.law.monash.edu.au/castancentre/conference/2003/kneebone-paper.pdf>; Goodwin-Gill and McAdam, above n 83, 65–7.
278 See SZTDM v Minister for Immigration and Border Protection (No 2) [2013] FCCA 2060 [70]; SZSJC v Minister for Immigration and Border Protection [2013] FCCA 1755 [89]; SZSNY v Minister for Immigration and Citizenship [2013] FCCA 1465 [24], cited in RRT, above n 34, 10-12.
279 1205075 [2012] RRTA 851 (19 September 2012) [113].
280 Ibid [115].
281 Ibid [118].
282 Ibid. In SZSNY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1465 [24], the Federal Circuit Court held that the ‘possible existence of a sur place claim which would engage Australia's complementary protection obligations was an issue which, in the circumstances, the Tribunal should have considered.’ This was so, even though the applicant did not expressly claim that his activities outside the Chinese Embassy provided a basis to fear a real risk of significant harm in China’. In effect, the RRT was on notice because of the case which ‘arose clearly from the materials before the Tribunal: that if he returned to China he might face significant harm there because of his participation in the protest.’
283 1212050 [2013] RRTA 873 (12 February 2013) [108], [117].
284 Ibid [122].
285 Ibid [123]–[125].
286 The breakdown by country is as follows: China (77); Bangladesh (7); Fiji (4); Jordan (3); Lebanon (3); Burma (1); Egypt (1); Ethiopia (1); Ghana (1); Indonesia (1); Mauritius (1); Nepal (1); Sri Lanka (1); Stateless (1); Turkey (1); Uganda (1); Vietnam (1).
287 Cf 1212463 [2013] RRTA 133 (20 February 2013) (China); 1203936 [2012] RRTA 1070 (14 December 2012) (China); 1209343 [2012] RRTA 1068 (23 November 2012) (China); 1211776 [2012] RRTA 995 (2 November 2012) (China); 1200021 [2012] RRTA 394 (4 May 2012) (China); 1111151 [2012] RRTA 520 (14 June 2012) (Fiji).
288 Cf 1209994 [2012] RRTA 1109 (19 December 2012) (China); 1201351 [2012] RRTA 1106 (16 December 2012) (Ghana).
289 Cf 1201613 [2012] RRTA 557 (30 April 2012) (Burma); 1209354 [2012] RRTA 875 (17 October 2012) (Fujian Province, China); 1209927 [2012] RRTA 1132 (23 November 2012) (Lebanon).
290 See, eg, decisions relating to long periods of absence from Afghanistan, discussed above.
291 For discussion of country guidance cases in the UK, see Mark Henderson and Alison Pickup, ‘Best Practice Guide to Asylum and Human Rights Appeals’ (31 May 2012) [29.5]–[29.30] Electronic Immigration Network <http://www.ein.org.uk/bpg/chapter/29>; Thomas, Robert ‘Consistency in Asylum Adjudication: Country Guidance and the Asylum Process in the United Kingdom’ (2008) 20 International Journal of Refugee Law 489.CrossRefGoogle Scholar
292 See McAdam, Jane, ‘From Humanitarian Discretion to Complementary Protection: Reflections on the Emergence of Human Rights-Based Refugee Protection in Australia’ (2011) 18 Australian International Law Journal 53.Google Scholar
293 Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013 (Cth).
294 Jonathan Swan, Mark Kenny and Michael Gordon, ‘Scott Morrison Being “Mean for the Hell of It” to Asylum Seekers: Labor’, Sydney Morning Herald (online), 4 December 2013 <http://www.smh.com.au/federal-politics/political-news/scott-morrison-being-mean-for-the-hell-of-it-to-asylum-seekers-labor-20131204-2ypst.html#ixzz2mYK9E0OW>.
295 See Migration Amendment (Protection and Other Measures) Bill 2014 (Cth).
296 All those who made submissions to the Senate Committee inquiry into the bill argued that the standard was inconsistent with international law, with the exception of the Department of Immigration and Border Protection (and the Refugee Review Tribunal, which did not address this issue).
297 Remarks of members of the UN Committee against Torture during discussions of Australia's combined fourth and fifth periodic reports (on 10 November 2014, recorded by the Andrew & Renata Kaldor Centre for International Refugee Law).
298 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), proposed s 197C.
299 This finding was reached by many of those who made submissions to the Senate Committee inquiry into the bill, and a view shared by the Parliamentary Joint Committee on Human Rights, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 (14th Report of the 44th Parliament, October 2014) 78 [1.366].