NAKH v MIMIA

The applicants, NAKH and MIMIA, sought judicial review of a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs. The dispute concerned the Minister's refusal to grant the applicants a protection visa. The applicants, who were citizens of Afghanistan, claimed they had a well-founded fear of persecution if returned to their country of origin.

The primary legal issue before the High Court was whether the Minister's decision to refuse the protection visa was vitiated by an error of law, specifically concerning the proper application of the "real chance" test in assessing the likelihood of persecution. The applicants argued that the Minister had failed to properly consider all relevant information and had applied an incorrect legal standard when assessing their claims.

The High Court examined the principles governing the assessment of protection claims under the Migration Act 1958 (Cth). Their Honours referred to established jurisprudence on the "real chance" test, which requires the decision-maker to assess whether there is a real chance that the applicant will suffer persecution. The Court found that the Minister's delegate had failed to adequately consider certain aspects of the applicants' evidence and had, in doing so, applied an erroneous test. This failure meant that the decision was affected by an error of law.

Consequently, the High Court quashed the decision of the Minister and remitted the matter to the Minister for redetermination according to law.