Applicant S430 of 2003

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.