CJV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This case concerned an application by CJV19 for judicial review of a decision by the Refugee Review Tribunal (the Tribunal) which affirmed the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' refusal to grant the applicant a protection visa. The applicant, a Shia intellectual of Turi Bangash ethnicity from Pakistan, claimed he would face persecution or significant harm upon return to his home country due to his religious beliefs, political opinions, family background, and perceived wealth. The Tribunal had rejected these claims, finding that the applicant did not meet the criteria for a protection visa under section 36(2)(a) or the complementary protection criterion under section 36(2)(aa) of the *Migration Act 1958* (Cth).

The applicant contended that the Tribunal erred in law by applying an incorrect test when assessing the risk of harm. Specifically, the applicant argued that the Tribunal based its findings on an assessment of relative safety, focusing on improvements in the security situation in Pakistan, rather than determining the actual level of risk he faced. The applicant also argued that the Tribunal failed to correctly apply the "real chance" test as established by the High Court, and that it failed to consider certain aspects of his claims, including fears of harm due to blasphemy accusations, extortion, and the safety of travel to his home region given his mental health and physical scars.

Driver J found that the Tribunal's reasoning, particularly its reliance on the absence of evidence that the "improved" situation was likely to "deteriorate," constituted a failure to apply the correct test. The Tribunal had quoted extensively from a DFAT Report regarding the security situation in Pakistan, but in doing so, it omitted crucial details about the ongoing negative impacts of military operations, such as restricted freedom of movement and damage to property. The court noted that while the Tribunal acknowledged a "moderate risk of sectarian violence," it then concluded the applicant faced "no more than a remote chance of being seriously harmed" based on a perceived lack of a "high level of sectarian violence." This approach was found to be an error, akin to applying a test of relative safety rather than assessing the actual risk of harm.

The court concluded that the Tribunal constructively failed to exercise its jurisdiction by applying a wrong test to the assessment of whether the applicant faced a real chance of persecution or a real risk of significant harm. Consequently, the application for judicial review was granted.