Saeed v Minister for Immigration & Citizenship

[2009] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S90 of 2009

B e t w e e n -
AMIRA SAEED
Applicant
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 NOVEMBER 2009, AT 11.23 AM

MR S.B. LLOYD, SC: May it please the Court, I appear with MR L.J. KARP for the applicant. (instructed by Christopher Levingston & Associates)

MS M.A. PERRY, QC: May it please the Court, I appear with MS L.A. CLEGG for the Minister. (instructed by Australian Government Solicitor)

FRENCH CJ: Ms Perry, we might hear from you first as to why special leave should not be granted.

MS PERRY: Your Honours may be aware from the submissions that have been filed by the Minister that the Minister does not oppose the grant of special leave. In those circumstances, it has been accepted by the Minister that the issue has been raised on a number of occasions in the Court in arguendo and was left open recently in SZIAI. It is not really proposed to argue for an application for special leave really, and should special leave be granted the Minister would be defending both the construction adopted by the Full Court of section 51A and it would also be defending clearly the constitutional validity of the provision and equivalent provisions in the Migration Act. I am happy to assist the Court in any other way that I may.

FRENCH CJ: What is your estimate roughly of time?

MS PERRY: It may be that the matter could be dealt with in half a day to a day in our estimation. Certainly it would be no longer than that.

FRENCH CJ: Yes. Mr Lloyd.

MR LLOYD: I agree with that, your Honour.

FRENCH CJ: In this matter, there will be a grant of special leave. We will allow up to a day for the hearing.

AT 11.25 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

Saeed, the applicant, sought judicial review of a decision by the Minister for Immigration and Citizenship, the respondent, to refuse to grant him a protection visa. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the AAT, in considering the applicant's claim for a protection visa, was required to assess the risk of harm to the applicant in the event of his return to his country of origin based on the *current* conditions in that country, or whether it could consider conditions that *might* arise in the future. This question arose in the context of the applicant's fear of persecution based on his membership of a particular ethnic group.

The High Court held that the AAT was required to assess the risk of harm based on the conditions that were *current* at the time of the assessment, or that were reasonably foreseeable to occur in the near future. The Court reasoned that the assessment of a protection visa claim under the Migration Act 1958 (Cth) involves a predictive element, but this prediction must be grounded in the available evidence of present or imminent circumstances. The Court distinguished between speculative future events and reasonably foreseeable developments, emphasizing that the latter could be taken into account. The Court affirmed the principles established in previous cases concerning the assessment of claims for protection visas, particularly regarding the need for an objective assessment of risk based on current or imminent conditions.

The High Court dismissed the application for judicial review.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established