Should Asylum Seekers Modify their Conduct to Avoid Harm under Complementary Protection?

Abstract

The High Court of Australia’s landmark 2003 decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs held that decision-makers are not permitted to impose any requirement upon asylum seekers to ‘act discreetly’ in order to avoid persecution. Since that time, both Australian and international courts have grappled with the wider implications of this principle. A case currently before the High Court of Australia - DQU16 v Minister for Home Affairs - tests the application of the S395 discretion prohibition (a case dealing with the Refugee Convention) to complementary protection status (which is based on human rights law). The specific question to be answered in the appeal is whether an asylum seeker can be expected to modify their behaviour to avoid harm which would constitute a breach of certain human rights. However, the case is also expected to illuminate a more fundamental legal question as to the legal relationship between refugee status and complementary protection and whether each status should be interpreted consistently or separately. As such, the outcome of this case has the potential to influence decision-making in Australia and internationally.