It is not difficult to imagine that being an alcohol merchant in Iran might not be the safest choice of profession.Militant groups frequently target alcohol merchants for religious reasons. The issue arises as to whether that is a sufficient basis to enliven Australia’s obligations to provide protection to the Applicant.
You might initially think that persecution could easily be avoided with a change of profession. However, Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 is authority for the principle that “a fear of persecution for a Convention reason, if it is otherwise well‑founded, remains well‑founded even if the person concerned would or could be expected to hide his or her race, nationality, religion…” (i.e. inherent attributes which are the source of the persecution).
Because his profession wasn’t an “inherent attribute” Appellant S395 didn’t help him and his claim to protection as a convention refugee under section 36(2)(a) was unsuccessful.
However, what about his claim for complementary protection under section 36(2)(aa) Migration Act? Complementary protection requires there to be a real risk of suffering significant harm. The issue which the High Court had to decide (in DQU16 v Minister for Home Affairs [2021] HCA 10) was whether Appellant S395 also applied to complementary protection claims. In other words, even if he changed profession would he still be entitled to complementary protection?
The short answer is “no”. The High Court made it clear that the statutory questions to be considered under 36(2)(a) and 36(2)(aa) are different and the principle in Appellant S395 should not be extended to where the modification of a person’s behaviour is irrelevant to a protected characteristic.
You can read a fuller explanation of the reasons commencing at paragraph [18] of DQU16.
Creative commons acknowledgement for the photograph.
