Mzpab v MIMIA ( M167-05)

The Administrative Appeals Tribunal (AAT) had affirmed a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse the applicant, Mzpab, a protection visa. Mzpab, a citizen of Sri Lanka, had sought to challenge the AAT's decision in the High Court of Australia.

The central legal issue before the High Court was whether the AAT, in assessing Mzpab's claim for a protection visa, had erred in law by failing to consider or give sufficient weight to certain evidence relating to the alleged persecution of Tamils in Sri Lanka. Specifically, the court considered whether the AAT had adequately addressed the risk of Mzpab being subjected to persecution by state agents or by non-state agents acting with the complicity or acquiescence of the state, as required by the *Migration Act 1958* (Cth).

Gummow and Heydon JJ found that the AAT had failed to properly consider the evidence concerning the general situation of Tamils in Sri Lanka and the potential for persecution by state agents or those acting with state complicity. The court reiterated the principle that a tribunal must assess the real chance of persecution, taking into account all relevant evidence, including country information and the applicant's personal circumstances. The AAT's approach was found to be flawed in its selective consideration of evidence and its failure to engage with the broader context of the conflict in Sri Lanka.

The High Court ordered that the AAT's decision be set aside and remitted to the AAT for redetermination according to law.