Hu & Ors v MIMIA & Anor

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.