BZAEK v Minister for Immigration

This matter concerned an application for judicial review of a decision made by the Refugee Review Tribunal (RRT). The applicant, BZAEK, sought to challenge the RRT's decision to affirm the refusal of his protection visa application. The application was heard by Judge Jarrett in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the RRT had committed jurisdictional error by applying an incorrect test under section 91R(2)(a) of the *Migration Act 1958* (Cth). Specifically, the applicant contended that the RRT erred by making a qualitative assessment of the nature and degree of harm when determining whether a threat to his liberty was sufficiently significant, rather than focusing solely on whether the threat was to his life or liberty, as established in *WZAPN v Minister for Immigration and Border Protection* [2014] FCA 947.

Judge Jarrett reasoned that the RRT's assessment of the applicant's potential treatment upon return to Sri Lanka, including possible detention and questioning for illegal departure, was undertaken in a manner that focused on the severity of the consequences rather than the existence of a threat to liberty. The RRT noted that while illegal departure is an offence, prison sentences are seldom enforced, and individuals are often treated as victims if they were unknowingly involved in people smuggling. The Court found that the RRT's conclusion that the applicant had not established a real chance of serious harm or persecution for a Convention reason, based on its assessment of the country information regarding detention and questioning, did not demonstrate an application of the correct legal test as articulated in *WZAPN*. The RRT's focus on the likelihood of a custodial sentence being imposed and the general treatment of returnees, rather than the inherent threat to liberty, indicated a misapplication of section 91R(2)(a).

The Court found that the RRT had fallen into jurisdictional error by applying the incorrect test under section 91R(2)(a) of the *Migration Act 1958* (Cth). Consequently, the decision of the Refugee Review Tribunal was set aside, and the matter was remitted to the RRT for redetermination according to law.