Applicant S1083-2003 v MIMIA

The Administrative Appeals Tribunal (AAT) had affirmed a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse the applicant's claim for a protection visa. The applicant, identified as S1083-2003, was a citizen of Afghanistan. The dispute concerned whether the applicant had a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth) (the Act). The matter came before the High Court of Australia on appeal from the Full Federal Court.

The central legal issue before the High Court was whether the AAT, in assessing the applicant's claim, had erred in law by failing to adequately consider the potential for persecution arising from the applicant's alleged membership of the Hazara ethnic group and their historical persecution in Afghanistan. Specifically, the court had to determine if the AAT's findings regarding the current political and social conditions in Afghanistan were sufficient to discharge the Minister's burden of proof in demonstrating that the applicant would not face persecution.

The High Court, in allowing the appeal, found that the AAT had made an error of law. Their Honours Gummow, Kirby and Hayne JJ held that the AAT had not given sufficient weight to the evidence concerning the historical and ongoing persecution of the Hazara people in Afghanistan. The court reiterated the principle that a well-founded fear of persecution can exist even if the persecutor is not a state actor, and that the assessment must consider the real chance of harm. The AAT's failure to properly engage with the evidence of systemic discrimination and violence against the Hazara community meant that its conclusion that the applicant did not have a well-founded fear was not open to it on the evidence.

The High Court ordered that the appeal be allowed, the orders of the Full Federal Court be set aside, and the matter be remitted to the Administrative Appeals Tribunal for redetermination according to law.