1509071 (Refugee)

The applicant, a Sri Lankan Tamil, sought review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The applicant claimed to have been a victim of persecution due to his ethnicity and his past work as a mediator, which allegedly led to him being shot and harassed by army officers. Further, the applicant's cousin had been involved with the Liberation Tigers of Tamil Eelam (LTTE), and the applicant had registered with the UNHCR. The Administrative Appeals Tribunal had affirmed the Minister's decision.

The Federal Circuit Court was required to determine whether the Tribunal had erred in law in its assessment of the applicant's claims for protection. Specifically, the court needed to consider whether the Tribunal had adequately assessed the risk of persecution the applicant would face upon return to Sri Lanka, taking into account his ethnicity, his past experiences, and the potential for adverse attention from state actors and non-state actors. The court also had to consider whether the Tribunal had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in relation to the assessment of protection claims.

The court found that the Tribunal had failed to adequately consider the cumulative impact of the various factors presented by the applicant. While the Tribunal had considered each element of the applicant's claim, it had not sufficiently engaged with how these elements, taken together, might place the applicant at real risk of persecution. The court emphasised that the assessment of risk must be holistic and consider the interplay of ethnicity, past experiences, and potential future threats. The court noted that the Tribunal's reasoning did not sufficiently demonstrate why the applicant would not face a real chance of harm upon return to Sri Lanka, particularly in light of the evidence of ongoing conflict and persecution faced by Tamils.

The court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined afresh.