Disabilities and Protection: How a Subclass 866 Appeal Succeeded by Addressing the Implications of Living with a Disability

In this court case, the applicant for a Protection Visa (subclass 866) succeeded because the Tribunal failed to consider the effect of disability on the applicant’s ability to subsist. This means the Tribunal failed to consider the broader implication of living with a disability.

Protection visas are complicated and need an open mind to be capable of recognising possible grounds to be granted complimentary protection (with a Subclass 866) which, turns on proving a real risk of significant harm.

If you, or someone you know is in Australia and faces a real risk of significant harm in their home country contact us for an assessment of claims. If you, or someone you know has been refused protection and you have appealed or want to appeal (note there are time limits!) contact us – we can help.

Below, we have included an extract of the decision.

MIGRATION – protection visa application – application for judicial review – whether jurisdictional error – whether the Tribunal failed to consider whether the Applicant faced a real chance or risk of serious or significant harm due to his disability and factors related to it – adverse credit finding based on misconstruction – the Tribunal failed to consider or determine whether the Applicant would be voluntarily or involuntarily returned to Iran – the Tribunal misconstrued the case before it – jurisdictional error established – application for review allowed

Ground 1
Referring to Ground 1, counsel for the Applicant contends that the Tribunal failed to consider, as it was required to do, the claim that the Applicant faced a cumulative threat of harm to his subsistence upon return to Iran because of his disability.
It is contended that the Tribunal reasons make it plain that it did not consider this, but instead simply considered whether the Applicant would be mistreated or discriminated against. In essence, that it failed to consider the broader aspect of the claim based on the impact of disability on his ability to subsist.
Again, the Applicant contends that the First Respondent’s answer to this ground is no answer at all because the Tribunal simply made no enquiry or finding about the broader subsistence claim in the manner which it was obliged to do based on accepted authorities.[14]
Grounds 1 and 2

The First Respondent submitted that the Tribunal was only obliged to consider claims actually made and the onus is on the Applicant to make out the claim by providing sufficient information about it.[22]
Further, the First Respondent says that the claim concerning inability to subsist was not made and did not “clearly arise”.
Counsel referred to the Tribunal reasons at [14], [28], [58] and [60] to convey that the Tribunal did consider the information provided by the Applicant about his leg injury and consequent disabilities. He submitted that it was apparent from these passages that the Tribunal evaluated this information together with the Applicant’s presentation at the hearing. It then characterised the disability as relatively minor and assessed there was no express or implied claim capable of arising that the Applicant could not subsist in Iran if he were to return there.
Further, there was material before the Tribunal which contradicted the implied claim relating to inability to subsist, namely:
(a) That he was able to take over his father’s business;

(b) Information in response to statements of claims in the Court Book at pages 57 and 135 to 138;

(c) That he made statements about doing electrical work and wanting to do different work, not that he was incapable of work in Iran; and

(d) The Applicant’s claim was that he was rejected for a government job due to his disability and not because of the altercation or the attitude of the authorities.

Concerning Ground 1 and the alleged failure to consider eligibility for complementary protection based on inability to subsist due to disability upon return to Iran, I was directed to [22] of the written submissions dated 10 July 2015 made on behalf of the Applicant.[24] Counsel for the Applicant submitted that the claim was clearly made, but not considered adequately. Instead, the Tribunal only gave consideration to how he would be treated upon return and this approach reflects jurisdictional error as described in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”) at [58].