Hu & Ors v MIMIA & Anor

[2006] HCATrans 564

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S122 of 2006

B e t w e e n -
JOO SUNG HU
First Applicant
SINAE NHO
Second Applicant
EUNICE HU
Third Applicant
CHAN HU
Fourth Applicant
JOON HU
Fifth Applicant
WON HU
Sixth Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 OCTOBER 2006, AT 9.43 AM

__________________

GUMMOW J: The first applicant, a citizen of Korea, applied, together with his wife and children, for a temporary business entry visa – a Subclass 457 visa. An application for that kind of visa requires support from an approved business sponsor. The Korean Television Network applied for approval as a business sponsor at the same time. Both its and the applicants’ applications were rejected on 18 June 2001. The reason why the application of the first applicant and his family was rejected was that he had not been nominated by an approved business sponsor.

The Migration Review Tribunal refused an application for review on the ground that the delegate was correct. The Federal Magistrates Court (Raphael FM) dismissed an application for judicial review, and Allsop J dismissed an appeal, on the ground that the first applicant did not have an approved business sponsor.

The applicants’ application for special leave to appeal to this Court must be dismissed, because there is no possibility that they will demonstrate error if special leave were granted.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave. I publish the disposition signed by Heydon J and myself.

AT 9.44 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, Hu and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) and the second respondent, the Immigration Review Tribunal. The dispute concerned the refusal of the applicants' applications for protection visas.

The primary legal issue before the High Court was whether the Immigration Review Tribunal had erred in law by failing to consider, or adequately consider, the applicants' claims for protection visas under s 417 of the *Migration Act 1958* (Cth). Specifically, the court had to determine if the Tribunal had applied the correct legal test when assessing whether the applicants had established a real chance of suffering persecution for a Convention reason.

Gummow and Heydon JJ held that the Tribunal had misconstrued the nature of the assessment required by s 417. They found that the Tribunal had applied an incorrect standard by requiring the applicants to demonstrate a "real chance" of persecution, rather than the correct standard of a "real chance" of persecution. This misapplication of the legal test constituted an error of law. The court further elaborated on the principles of assessing claims for protection visas, emphasising the need for a comprehensive and objective evaluation of the evidence.

The High Court allowed the appeal, quashed the decision of the Immigration Review Tribunal, and remitted the matter to the Tribunal for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established