DDN16 v Minister for Immigration

The applicant, a Malaysian citizen, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's refusal to grant him a protection visa. The applicant claimed to fear harm from an Indian gang in his home district of Puchong, alleging racial abuse, physical attack, and subsequent harassment of his father and his father's business after the applicant arrived in Australia. The Tribunal had rejected these claims, making adverse credibility findings against the applicant.

The central legal issue before the court was whether the Tribunal had erred in law in its assessment of the applicant's claims and its subsequent decision to affirm the refusal of a protection visa. Specifically, the court was required to consider whether the Tribunal's adverse credibility findings were reasonably open to it on the evidence, and whether the Tribunal had properly applied the relevant provisions of the *Migration Act 1958* (Cth) concerning the definition of a refugee and complementary protection criteria.

Emmett J found that the Tribunal's decision was affected by an error of law. The Tribunal had made a finding that it was not plausible that authorities in Selangor would ignore reports of criminal activity by minority Indian gangs. However, the applicant's claims did not allege that the police ignored reports of criminal activity by the gang, but rather that the police were involved with the gang, or that they would do nothing if reports were made. This indicated a misunderstanding by the Tribunal of the applicant's specific allegations. Furthermore, the Tribunal's finding that the applicant's delay in applying for protection was because he was not interested and merely wanted to work illegally was based on an inference that was not reasonably open to it, given the applicant's evidence of fear and his father's actions. The Tribunal's adverse credibility findings, which were central to its decision, were therefore vitiated by these errors.

The court ordered that the decision of the Administrative Appeals Tribunal be set aside, and remitted the application for a protection visa to the Tribunal for redetermination according to law.