EUW19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, EUW19, sought judicial review of a decision by the Immigration Assessment Authority (IAA) that refused his application for a protection visa. The applicant claimed a fear of harm in Afghanistan due to his past work for the Afghan Army and his perceived "westernisation" from time spent in Australia. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent. The matter was heard by Judge Driver in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the IAA had misapplied section 5J(3) of the *Migration Act 1958* (Cth) in its assessment of the applicant's refugee status. Specifically, the applicant contended that the IAA erred by considering whether his need to maintain a low profile due to his time in Australia constituted an "unacceptable modification," rather than assessing whether he could take a "reasonable step to modify his behaviour to avoid harm," as stipulated by the Act. The applicant argued that the IAA's focus on "acceptability" was an incorrect legal test, diverting from the objective standard of reasonableness.

Judge Driver found that the IAA had indeed misapplied section 5J(3) of the *Migration Act*. The Court reasoned that the IAA's interpretation of "unacceptable modification" directed attention to an extreme standard, whereas the correct legal test under section 5J(3) requires an assessment of whether a person could take a "reasonable step" to avoid harm. This misapplication constituted a jurisdictional error, as it led to a misdirected inquiry. The Court also noted the applicant's submission that his time in Australia had resulted in immutable attitudinal and cultural shifts, potentially constituting a "characteristic" within the meaning of section 5J(3)(b), which could prevent the exclusion from refugee status.

The Court ordered that a writ of certiorari issue to remove the IAA's decision of 6 November 2019 into the Court for the purpose of quashing it. Furthermore, a writ of mandamus was ordered, directing the IAA to redetermine the applicant's review application according to law.