Applicant S430 of 2003

[2005] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S13 of 2005

B e t w e e n -
APPLICANT S430 OF 2003
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 27 APRIL 2005, AT 4.51 PM

HAYNE J: In this matter the applicant seeks leave to appeal from a decision of the Federal Court refusing the applicant an extension of time within which to file and serve a notice of appeal from a judgment of a judge in the Federal Court of 13 October 2004. The Federal Court was not persuaded that any grounds could be made out to demonstrate any appealable error of law or principle in the reasoning of the primary judge. Neither in that respect nor in any other has the Federal Court shown to have been in error.

The applicant being unrepresented, this application falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. The applicant’s written case reveals no arguable error in the decision to refuse the extension of time. It is not necessary to consider whether an appeal to this Court against that refusal would be competent. The application to this Court should be dismissed.

Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 4.52 PM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicant, a citizen of Sri Lanka, sought judicial review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa. The applicant had arrived in Australia by boat and claimed to fear persecution in Sri Lanka due to his alleged involvement with the Liberation Tigers of Tamil Eelam (LTTE). The Minister's delegate had refused the visa application, finding that the applicant did not meet the criteria for a protection visa, specifically that he did not have a well-founded fear of persecution for a Convention reason.

The central legal issue before the High Court was whether the delegate's decision was affected by an error of law, specifically concerning the assessment of the applicant's credibility and the application of the "real chance" test in determining whether the applicant had a well-founded fear of persecution. The applicant argued that the delegate had failed to properly consider all the evidence, including his subjective fear, and had applied an incorrect legal standard in assessing the likelihood of harm.

The High Court, comprising Hayne and Callinan JJ, found that the delegate had made an error of law. Their Honours explained that the assessment of a well-founded fear requires a consideration of both the subjective fear of the applicant and the objective circumstances. The delegate had failed to adequately assess the applicant's subjective fear and had applied an overly stringent test in determining the objective likelihood of persecution. The correct test, as established in *Applicant V134/2002 v Minister for Immigration and Multicultural Affairs*, requires the decision-maker to consider whether there is a "real chance" of persecution, not a mere possibility.

The High Court ordered that the appeal be allowed, the decision of the Federal Court be set aside, and the matter be remitted to the Minister for Immigration and Multicultural and Indigenous Affairs for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established