Mam v Minister for Immigration and Citizenship

Mam (the applicant) sought judicial review of a decision by the Minister for Immigration and Citizenship (the respondent) to refuse to grant a protection visa. The applicant, a citizen of Vietnam, claimed to fear persecution in his home country due to his involvement in a political organisation that opposed the Vietnamese government. The Administrative Appeals Tribunal had affirmed the Minister's decision, finding that the applicant's claims were not credible. The applicant then sought review of the Tribunal's decision in the High Court of Australia.

The High Court was required to determine whether the Tribunal had erred in law in its assessment of the applicant's claims for a protection visa. Specifically, the court considered whether the Tribunal had failed to adequately consider all the evidence before it, including evidence relating to the applicant's alleged political activities and the potential for persecution in Vietnam. The court also examined whether the Tribunal had applied the correct legal test in assessing the applicant's credibility and the risk of harm.

The High Court found that the Tribunal had made an error of law. Their Honours held that the Tribunal had failed to give sufficient weight to certain documentary evidence that corroborated the applicant's account of his political activities. Furthermore, the Tribunal had applied an incorrect standard in assessing the applicant's credibility, requiring a level of certainty that was not mandated by the relevant legislation. The court reiterated the principle that in protection visa cases, the assessment of risk should be based on the real chance of harm, not merely a possibility.

The High Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.