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Author: Earth Refuge

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Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560

Date of judgement: 27 May 2021

Court: Federal Court of Australia

Citation(s): [2021] FCA 560

Short summary

The Australian Federal Court found that the Federal Environment Minister has a novel duty of care to prevent harm to young people as a result of climate change. Despite this finding, the Court did not issue an injunction to prevent the Australian government from extending a coal mine.

Summary by: Erin Gallagher

Link to original judgement 

Click here to open the case in PDF format

Weight of decision

This decision of the Federal Court bears significant weight in the Commonwealth of Australia.

Key facts

The applicants were eight Australian school children, and a catholic nun who acted as their representative. They brought the claim on behalf of themselves but also other children residing in Australia. 

The applicants made two claims against the Environment Minister. Firstly, they sought a declaration that a duty of care is owed by the Minister under the law of negligence and secondly, they argued that the Minister would be failing to exercise this duty of care if she approved a pending application from the Vickery coal mine to extract an additional 33 million tonnes of coal from a mine that had been set up and operated by Whitehaven, Vickery’s parent company. They therefore sought an injunction to restrain an apprehended breach of that duty.

The Minister is responsible for administering the Environment Protection and Biodiversity Act 1999 (Cth) (EPBC Act) and one of its purposes is providing for protection of the environment. Under the Act, the extension of the Vickery Coal mine would be prohibited unless the Minister approves the project under s130 and 133 of the Act. 

If approved, the increased extraction would result in an estimated 100 million tonnes of additional CO2 emissions. The applicants argued that children were particularly vulnerable to the effects of climate change and more likely to live through any future impacts caused by such emissions. 

The Applicants provided evidence from the IPCC and other expert climate scientists to demonstrate CO2 emissions will contribute to the increasing global temperature, and that there are devastating impacts resulting from this temperature increase. The Minister did not dispute this evidence. 

The applicants claimed that the additional 100 million tonnes of CO2 will contribute to the global increase in temperature. The Minister argued that the additional CO2 would be within the Paris Agreement’s budget.  

The Minister also argued that there is no such duty of care, and that recognition of one would impair her statutory task under the EPBC Act. She also denied that any injury to the Children resulting from approval of the project is reasonably foreseeable. She further argued that if such a duty of care were recognised, there is no reasonable apprehension that the duty will be breached and thus no grounds to grant an injunction thus the proceedings should be dismissed. 

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Bundesverfassungsgericht, Order 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20

Date of judgement: 24 March 2021

Court: Federal Constitutional Court of Germany 

Citation(s): BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 -, paras. 1-270

Short summary 

In its decision, the Federal Constitutional Court classified the German Climate Protection Act in its current form as violative of fundamental rights because it disproportionately shifts the burden of greenhouse gas reduction to future generations, thereby recognising for the first time the existence and violation of the intertemporal dimension of their civil rights. 

Summary by: Robert Los

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The order bears immense weight in Germany as the judgement indirectly grants a right to future generations with regard to protection or relief from CO2 emissions and other climate changes. 

Key facts

The Federal Climate Change Act (Klimaschutzgesetz – KSG) was drafted in response to the need for greater climate action efforts. Its purpose is to afford protection against the effects of global climate change (§ 1 S.1), and as stated under § 1 S.3, the basis of the KSG is the obligation under the Paris Agreement as well as the commitment made by the Federal Republic of Germany to pursue the long-term goal of greenhouse gas neutrality by 2050. 

Greenhouse gas emissions must be gradually reduced by the target year 2030 by at least 55%, relative to 1990 levels (§ 3(1)). In conjunction with Annex 2, § 4(1) sets out the annual permissible emission levels for various sectors in line with the reduction quota for the target year 2030. Provisions applicable beyond 2030 are not contained in the KSG. Rather, § 4(6) provides that in the year 2025, the Federal Government must – by way of ordinances – set annually decreasing emission levels for periods following 2030.

In support of their constitutional claims, the complainants − some of whom live in Bangladesh and Nepal − relied primarily on constitutional duties of protection arising from Art. 2(2) of the German Constitution Grundgesetz (GG), and Art. 14(1) GG, as well as the a fundamental right to a future in accordance with human dignity, and the fundamental right to an ecological minimum standard of living (ökologisches Existenzminimum), which they derived from Art. 2(1) GG in conjunction with Art. 20a GG and from Art. 2(1) GG in conjunction with Art. 1(1) GG. 

With regard to future burdens arising from the obligations to reduce emissions in the periods following 2030 – described by the complainants as an “emergency stop” – they relied on fundamental freedoms more generally.

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Ioane Teitiota decision, CCPR/C/127/D/2728/2016

Date of judgement: 23 September 2020

Court: United Nations Human Rights Committee

Citation(s): CCPR/C/127/D/2728/2016; Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016

Short summary 

In its first ruling on a complaint by an individual seeking asylum from the effects of climate change, the United Nations Human Rights Committee found that states may not deport individuals who face climate change-induced conditions that violate the right to life.

Summary by: Makaela Fehlhaber

Link to original Judgement 

Click here to open the case in PDF format

Weight of decision 

This decision is significant in that it is one of the first to acknowledge climate change-induced conditions as drivers of asylum claims. The Committee is responsible for holding states to account for upholding the International Covenant on Civil and Political Rights, however, its decisions are not binding. 

Key facts

The applicant sought asylum (and in the alternative, to be regarded as a protected person) on environmental grounds and argued that this was within the scope of the 1951 Refugee Convention. 

Further, the applicant contended that deportation back to Kiribati would violate Art. 6 (the right to life) of the International Covenant on Civil and Political Rights. The applicant sought determination by the Committee on the basis that he had exhausted all available domestic remedies (para. 8.3), a fact not disputed by the State party. 

New Zealand’s primary arguments surrounded the lack of evidence put forth by the applicant to support the argument that there was an imminent risk to his right to life, and that the claim should be deemed inadmissible. 

The Committee was asked to determine whether New Zealand had breached its obligations under the ICCPR by deporting the applicant back to Kiribati on the basis that the evidence did not support a finding that the applicant would face the risk, or would likely face the risk of arbitrary deprivation of life upon his return to Kiribati. 

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Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14

Date of judgement: 20 April 2010

Court: International Court of Justice 

Citation(s): Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14

Short summary 

The court introduced the concept of binding environmental impact assessments (EIAs) into international environmental laws and further elaborated upon the provisions of the International Law Commission’s draft, as well as the Trail Smelter decision. 

Summary by: Robert Los

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

This decision handed down by the International Court of Justice (ICJ) bears immense weight.  

Key facts

In October 2003, the Uruguayan government granted permission to a Spanish Company, ENCE, to build a pulp mill in Fray Bentos on the River Uruguay. Botnia, a Finnish company, then also received environmental authorization to build a mill in February 2005. The River Uruguay forms a border between Argentina and Uruguay and its use is regulated by the Statute of the Uruguay River, a bilateral treaty entered into by the two countries in 1975 (the “Statute“).

Argentina brought a complaint before the ICJ on 4 May 2006, alleging that the Uruguayan government had violated the Statute. Argentina initially sought a provisional measures order from the ICJ to suspend construction of the pulp mills, but this was dismissed. 

Argentina’s principal claims were that: 

  • Uruguay had not complied with the notification and consultation procedure set out in the Statute by authorizing the construction of two pulp mills without the prior consent of Argentina; and 
  • The mills would have an environmental impact upon the river and surrounding areas, and in particular that they would breach Uruguay’s obligation under the Statute to preserve the aquatic environment of the river by failing to protect biodiversity and fisheries.

Argentina consequently sought compensation, an end to construction, and a guarantee of compliance with the Statute in the future.

Uruguay argued that its only obligations had been to inform Argentina, which it had done, albeit after its decision had been made. Furthermore, the technology used would avoid polluting the river, as state-of-the-art waste cleansing equipment – which had been adopted by both the United States and the European Union as the best available technology – was going to be used. This position was supported by an independent World Bank study. 

Summary of holding

The ICJ held that Uruguay breached its procedural obligations by not informing the Administrative Commission of the River Uruguay (“CARU”) of its plans to construct the mills before it issued its environmental authorisations. 

Although Uruguay did notify Argentina, this communication did not take place through CARU and only occurred after the Uruguayan government had issued its authorisations. The ICJ held that, as a result, Uruguay had “disregarded the whole of the cooperation mechanisms provided for in Article 7 to 12 of the…Statute“ (para. 149). In terms of remedy, the ICJ considered that its declaration of breach constituted appropriate satisfaction.

However, the ICJ did not uphold any of the environmental claims made by Argentina. In what is potentially the most important passage of its holding, it stated that the need for an environmental impact assessment (where there is a risk that the proposed activity may have a significantly adverse impact in a trans-boundary context) has gained so much acceptance amongst States that it may now be considered “a requirement under general international law“. (para. 204)

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Paposhvili v. Belgium, [2016] ECHR 1113 (13 December 2016)

Date of judgement: 13 December 2016

Court: European Court of Human Rights

Citation(s):  Paposhvili v. Belgium – 41738/10 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber)) [2016] ECHR 1113 (13 December 2016)

Short summary 

The Grand Chamber of the European Court of Human Rights (ECtHR) memorably reshaped its Art. 3 case law on the expulsion of seriously ill migrants in leaving behind the restrictive application of the high Art. 3 threshold set in N v. the United Kingdom Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008, and pushed for a more rigorous assessment of the risk of ill-treatment. 

Summary by: Claudia Broadhead

Link to original judgement 

Click here to open the case in PDF format

Categorisations

Private v State, International Law, Refugee Law, Civil Rights Law, Migration and Health, Right to Family, Issues in Litigation, Evidence Admissibility

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 2 and 3 of the European Convention on Human Rights (ECHR). 

Key facts

The applicant, a Georgian national facing removal from Belgium due to criminal activity, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. The applicant claimed that, if removed to Georgia, he would be unable to access adequate medical treatment and was therefore at risk of ill-treatment in violation of his rights under Art. 3 ECHR (prohibition of torture or inhuman or degrading treatment or punishment), and accelerated death in breach of his right to life under Art. 2 ECHR. The applicant also argued that his removal to Georgia in conjunction with a ten-year ban on re-entering Belgium would result in separation with his family, who had leave to remain in Belgium. 

Previous instances 

The Fifth Section Chamber judgment of April 2014 held that the applicant’s removal would not encroach upon his Art. 3 or Art. 8 (right to private and family life) rights under the ECHR. The case was later referred to the Grand Chamber, and the applicant died pending these proceedings. The applicant’s family continued proceedings before the Grand Chamber of the ECtHR. 

The ECtHR found that there would have been a violation of Art. 3 and 8 ECHR if the Applicant had been removed to Georgia without the Belgian authorities having assessed the risk that he faced from removal in light of the information concerning the state of his health and the existence (or lack thereof) of appropriate treatment in Georgia.

Summary of holding

The ECtHR held that the severity of ill-treatment under Art. 3 must attain a minimum level and that the suffering flowing from a natural occurring illness may be (or risks being) exacerbated by treatment, whether flowing from conditions of detention, expulsion, or other measures for which the authorities could be held responsible. 

The ECtHR highlighted that since its decision in N v. the United Kingdom, an extremely high threshold (exceptional circumstances) had been set when applying Art. 3 to seriously ill persons. Indeed, only those close to death appear to be covered by the provision. In this case, the ECtHR determined that Art. 3 is triggered where “the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (para. 183). The ECtHR recognised here that the application of Art. 3 only to persons close to death had deprived those whose condition was less critical, but who were still seriously ill, from “the benefit of that provision” (para. 181).

In ensuring that Art. 3 is respected, the ECtHR went on to highlight that appropriate procedures need to be put in place to allow the individual to adduce evidence of the potential risk upon return to the country of origin, and for the State to examine the foreseeable consequences of return with regard to both the general situation and the individual’s circumstances. Thus, the applicant is not obliged to present clear proof that they would be exposed to proscribed treatment. 

The authorities should assess whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness. So, states must assess the impact of removal upon the individual by comparing their health prior to removal and how it would evolve after transfer. 

Factors to be considered in this assessment include whether the care is generally available in the receiving State, whether it is sufficient and appropriate in practice for the applicant’s treatment, and whether the individual will actually have access to this care and these facilities in the receiving State. This includes considerations relating to costs, existence of social networks and distances to access the relevant treatment.

Potential takeaways for future climate migration litigation

  • Threshold for breach of Art.3 ECHR. The ECtHR established in N v. United Kingdom that removing a non-national suffering from a serious illness to “a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case” (para. 42). The case set a very high threshold to finding breaches of Art. 3 where the issue was attributable to the State’s lack of resources to deal with a naturally occurring phenomenon. 
    • By contrast, in the case at hand, the ECtHR left behind the restrictive application and pushed for a more rigorous assessment of the risk of ill-treatment. 
  • Practice access to treatment. The judgement does not simply discuss whether adequate treatment is generally available in the receiving State but, crucially, whether the treatment would be accessible to the person concerned, addressing practical as opposed to theoretical access to sufficient care.
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AD (Tuvalu) [2014] NZIPT 501370-371

Date of judgement: 4 June 2014

Court: Immigration and Protection Tribunal of New Zealand

Citation(s): [2014] NZIPT 501370-371

Short summary 

The appellants, spouses from Tuvalu who resided in New Zealand unlawfully were granted residence visas following a humanitarian appeal against their deportation. It was deemed unduly harsh to deport the appellants when considering the best interests of their children and their ties to the country. Climate change was not a determinative issue for the Tribunal, but it was acknowledged that effects of climate change constitute a broad humanitarian concern.

Summary by: Erin Gallagher

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

Decisions of the Immigration and Protection Tribunal of New Zealand bear significant weight in the country, especially due to the nature of the appeal (humanitarian grounds). 

Key facts

The appellants were a husband and wife from Tuvalu who made humanitarian appeals against their deportation from New Zealand under the Immigration Act 2009. 

They had left Tuvalu because the effects of climate change and overpopulation were making life increasingly difficult. Their home islands were particularly vulnerable to inundation due to rising sea-levels causing coastal erosion that made it arduous to grow crops. 

The wife lost her job when the school she taught at closed due to lack of funding. The appellants lost two babies at late stages of pregnancy, which they attributed to lack of comprehensive medical services in Tuvalu. 

The couple arrived in New Zealand in 2007 holding visitor visas. The husband was twice rejected for a work permit, and further rejected for a residence visa, and was thus unlawfully resident. The couple went on to have two children who were both born in New Zealand.

Previous instances 

The appellants lodged claims for asylum, but the Tribunal dismissed this in the first instance (AC (Tuvalu) [2014] NZIPT 800517-520) after finding that the appellants did not fulfil the definition of a refugee under the 1951 Refugee Convention: any adverse conditions they faced in Tuvalu did not arise by reason of their race, religion, nationality, membership of a particular social group, or political opinion. 

Summary of holding

In their appeal, the appellants claimed that if they were deported to Tuvalu, they would be separated from the husband’s side of the family who were all living in New Zealand. They further claimed that they would be at risk of suffering the adverse impacts of climate change. 

The Tribunal had to decide whether the combination of separation from family and risk of exposure to the adverse effects of climate change amounted to exceptional circumstances of a humanitarian nature that would then allow the family to remain in New Zealand.

The grounds for granting a humanitarian appeal against liability for deportation are:

  • There are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported; and
  • It would not in all the circumstances be contrary to the public interest to allow the appellant(s) to remain. 

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AL v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Date of judgement: 10 May 2012

Court: European Court of Human Rights

Citation(s): A.L. v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Short summary 

The European Court of Human Rights (ECtHR) reiterated the obligation of Contracting States to protect individuals from deportation which would place them at risk of treatment contrary to Art. 3 of the European Convention on Human Rights (prohibition of torture or to inhuman or degrading treatment or punishment), noting that Contracting States retained the right to control the entry and expulsion of aliens and that there was no obligation to grant political asylum. The ECtHR stressed that to have an indication as to whether an expulsion would violate Art. 3, from now on, an assessment of the situation in the country would have to be carried out, as the historical situation would offer little more than some help towards understanding the present conditions.

Summary by: Yusuf Lahham

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 of the European Convention on Human Rights (ECHR). 

Key facts

A Togolese national (“the applicant”) brought a case against the Republic of Austria seeking to overturn the decisions of the Federal Asylum Office and the Asylum Court in denying him asylum claim and ordering his return to Togo. As a member of the prominent opposition political party, Union des Forces de Changement (UFC), the applicant alleged that upon his return, he would face a risk of being subjected to treatment contrary to Art. 3. 

In addition to this, he claimed that he had been threatened by soldiers in Togo during protests organised in a camp for flood victims due the unequal distribution of relief. The applicant further claimed that another Togolese national (“M.A”) had been granted asylum, relying on very similar evidence to that which had been put forward in his application. He argued that on the basis of M.A’s application result, he too should be granted asylum.

Previous instances 

On 6 July 2009, the applicant’s request for asylum and subsidiary protection was denied by the Federal Asylum Office on the basis that his submission of fear and persecution was not credible and appeared to be a fabrication around what had really happened. The Office noted that parliamentary elections had taken place in 2007, with the UFC winning 27 seats, and that although Togo could not be considered a representative democracy, opposition parties were generally free to act. The Office went on to conclude that whilst the applicant had been truthful regarding his account of the flood and the tensions between soldiers within the flood victim camp, the alleged threats and the applicant’s subsequent fear was contradictory to the applicant’s statements. 

In light of the above, the Office rejected the application for asylum and subsidiary protection on the grounds that the persecution awaiting the applicant in Togo was nothing more than speculation on his part, and that there would be no risk of persecution as recognised under Art. 1(A)(2) of the 1951 United Nations Convention Relating to the Status of Refugees. 

On 29th April 2010, the Asylum Court held a hearing to address the applicant’s appeal, which was based upon the following grounds: that he was unaware of the possibility of submitting more than three pieces of evidence, he had issues understanding the interpreter and as such had not given a full account of police violence towards him at the camp, that members of the UFC were still subject to persecution notwithstanding the 2007 parliamentary elections, and that M.A, another organiser of the demonstrations had been granted asylum. The Court held that the applicant’s statements were contradictory and not due to any translation errors. It was also found that the evidence put forward appeared to be fabricated and that no actual violence towards his person had occurred at the camp. The court ordered his expulsion to Togo, and dismissed his claim. 

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N v. United Kingdom, Application No. 26565/05

Date of judgement: 27 May 2008

Court: European Court of Human Rights

Citation(s): N v. The United Kingdom, Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008

Short summary 

The European Court of Human Rights (ECtHR) formerly established a very high threshold for the protection of asylum seekers with severe health conditions under Art. 3 of the European Convention on Human RIghts in the case of an Ugandan woman suffering from HIV. 

Summary by: Claudia Broadhead

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 right to prevent of inhumane or degrading treatment or punishment under the European Convention on Human Rights (ECHR). See the Paposhvili decision for further elaboration upon this notion. 

Key facts

The applicant was an Ugandan woman who entered the UK in 1998 under a false identity. Within days, she applied for asylum, claiming that she had been raped by the National Resistance Movement in Uganda because she was associated with the Lord’s Resistance Army. She was diagnosed as being HIV positive and developed Kaposi’s sarcoma, an AIDS defining illness. Medication was only available in Uganda at considerable expense and not easily accessible from her hometown. The applicant claimed that her removal to Uganda would violate her Art. 3 ECHR right (prohibition of torture or inhuman or degrading treatment or punishment).

The Secretary of State refused the asylum claim on 28 March 2001 on grounds of credibility, and also because it was not accepted that the Ugandan authorities were interested in the applicant. The applicant’s Art. 3 claim was also rejected, with the Secretary of State noting that treatment of AIDS in Uganda was comparable to any other African country, and all the major anti-viral drugs were available in Uganda at highly subsidized prices. 

Summary of holding

The ECtHR first stated that AIDS drugs available under the National Health Service (NHS) in the U.K. could also be obtained locally in Uganda, and most were also available at a reduced price through UN-funded projects. The applicant’s return would not, therefore, be to a complete absence of medical treatment, and so would not subject her to acute physical and mental suffering. 

The ECtHR found that the decision to remove someone who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the contracting state may raise an issue under Art. 3, but only in a very exceptional case where the humanitarian grounds against the removal are compelling (para. 42). 

In particular, the court found that for ill-treatment to fall within the scope of Art. 3, it must attain a minimum level of severity that is relative and dependent on all the circumstances of the case, including the duration of treatment, its physical and mental effects and, in some cases, the sex, age, and state of health of the victim.

Further, the ECtHR stated that although advances in medical science – together with social and economic differences between countries – entail that the level of treatment available in the contracting state and the country of origin may vary considerably, Art. 3 does not place an obligation upon the contracting state to alleviate such disparities through the provision of free and unlimited health care to all people without a right to stay within its jurisdiction. 

If humanitarian conditions are solely or predominantly attributable to poverty or to the state’s lack of resources to deal with a naturally occurring phenomenon (in this case HIV illness), the higher threshold of exceptional circumstances is applied and therefore deportation is more likely. 

Potential takeaways for future climate migration litigation

  • Thresholds. In the absence of cases specifically related to climate migration, non-refoulement cases with a medical basis for argument are generally a realistic indicator of thresholds, the interpretation of the articles, and requirements under which protection can be expected from courts. 
  • This case set an absurdly high threshold, and thus should be seen as an unfavourable case for climate migration. For further development (and reduction) of the principles in the case, see the case of Paposhvili v. Belgium. 
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Taskin and Ors. v. Turkey (2006) 42 EHRR 50

Date of judgement: 3 March 2005

Court: European Court of Human Rights

Citation(s): Application no. 46117/99, (2006) 42 EHRR 50

Short summary

The European Court of Human Rights held that environmental pollution could affect Art. 8 of the European Convention on Human Rights (right to private and family life). The Turkish Government had violated Art. 8, even if such pollution did not have serious health-related consequences.

Summary by: Makaela Fehlhaber

Link to original Judgement 

Click here to open the case in PDF format

Weight of decision

Given the jurisdiction of the Court of Human Rights, the Taskin judgement is significant and bears considerable weight.

Key facts

The applicants were residents of Bergama. In 1992, the respondent had granted permits to operate a gold mine in Ovacik, a district within Bergama. The applicants contended that as a result of the granting of these permits, they had suffered and continued to suffer the effects of environmental damage – namely the inability to move freely and noise pollution – from the use of machinery and explosives. 

Previous instances

Subsequently, the applicants sought judicial review in the Administrative Court of the Ministry of Environment’s of the decision to issue the permits on the grounds of the risks posed to human health and safety. The application was dismissed by the Court in 1996, but the provincial governor of the area agreed to suspend mining operations for one month in the subsequent year in the interests of the public. 

In 1997 the Supreme Administrative Court overturned the Administrative Court’s decision, finding that the mining activities did not serve the public interests towards health and safety measures. This was later upheld by the Administrative Court. However, irrespective of these decisions and subsequent orders, the mine reopened in an experimental capacity in 2001. 

Ten Turkish nationals lodged an application (no. 46117/99) against the Republic of Turkey to the European Commission of Human Rights in 1998 under Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). The applicants contended that the actions of the respondent violated Art. 2 (right to life) and Art. 8 (right to private and family life) of the Convention. Under Art. 8, the applicants alleged that the use of cyanidation operating processes violated their right to private and family life as its uses posed a significant risk (para. 104). The applicants further stated that their judicial rights had not been upheld in accordance with Art. 6 (right to a fair trial) and Art. 13 (right to an effective remedy) of the Convention. Accordingly, they sought compensation for infringement of these rights, and for failure to enforce a judgement. 

The respondents contended that the arguments submitted in respect of Art. 8 were based on hypothetical risks that may or may not materialise. Accordingly, this could not be categorised as a serious and imminent risk (para. 107) as there needed to be a direct effect (para. 108) upon the lives of the applicants. Furthermore, the respondents submitted that Art. 8 was inapplicable as it had previously been determined that the risks of mining did not present any danger for the health of the local population (para. 9), as the government had conducted an Environmental Impact Assessment. The respondent further submitted that Art. 6 of the Convention did not apply for the same reasons (para. 128). 

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Hagi-Mohamed v Minister for Immigration & Multicultural Affairs [2001] FCA 1156

Date of judgement: 23 August 2001

 Court: Federal Court of Australia

Citation(s): [2001] FCA 1156

Short summary 

The Federal Court of Australia confirmed that internal relocation must be considered separately from the question of whether a well-founded fear of persecution exists in evaluating claims for protection under the 1951 Refugee Convention.

Summary by: Joseph Lavelle Wilson            

Link to original judgement 

Click here to open the case in PDF format

Weight of decision

This decision of the Federal Court bears moderate weight in the Commonwealth of Australia. 

Key facts

Ahmed Dahir Hagi-Mohamed, a citizen of Somalia, arrived in Australia on 15 September 1995. He filed an application for a protection visa under s. 36 of the Australian Migration Act 1958 (Cth) in November 1995, claiming that the Australian government had an obligation to protect him under the Convention Relating to the Status of Refugees 1951 (the Convention). The basis of his application was that he had a well-founded fear of persecution in his home country of Somalia, due to his membership of several social groups. 

Hagi-Mohamed claimed that he was a member of the particular social group (that of homosexual men), as well as a member of two clans – the Geledi clan and the Hawadle clan.

Previous instances

The Minister for Immigration & Multicultural Affairs and the Refugee Review Tribunal (RRT) rejected the application for protection. The RRT accepted that each group identified by Hagi-Mohamed was in fact a particular social group, and that he belonged to each one. The RRT found that the motivating reason for the persecution of Geledi clan members by Somalian militias was to take resources from the Geledi clan, specifically arable land and crops, rather than for the reason that they were members of the Geledi clan. The RRT also found that Hagi-Mohamed’s association with his mother’s clan, the Hawadle, did not put him at risk of persecution because there was evidence that other parts of Somalia were controlled by the Hawadle and he could be safe there. With respect to Hagi-Mohamed’s claim based on his homosexuality, the RRT found that although he did belong to the cognisable social group, that group did not face danger rising to the level of persecution under the Convention.

Hagi-Mohamed appealed to the Federal Court of Australia. Justice Stone issued a decision in favour of the government, which was subsequently appealed by Hagi-Mohamed and heard by Justices Wilcox, Weinberg, and Hely in the Federal Court of Australia. 

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